By James Goodwin, Center for Progressive Reform
Not long after their party regained control of the lower chamber in the midterm elections, House Democratic leaders unveiled their signature legislative action for the next Congress – a package of reform measures aimed at tackling some of the worst ethics abuses involving the Trump administration’s top officials and members of Congress. Symbolically assigned the designation of H.R. 1 to underscore its status as the top legislative priority, the bill would do more than just restore the integrity of our key democratic institutions; it could also serve as a crucial first step toward strengthening our system of regulatory safeguards.
Though the actual language of H.R. 1 has not been released, the bill is expected to consist of three sections. First, it would introduce a number of ethics reforms aimed at high-ranking executive branch officials and members of Congress, including requiring presidential candidates to disclose their taxes and banning lawmakers from serving on for-profit corporate boards. Second, it would bring much-needed changes to campaign finance to limit the influence of corporate money. The most notable provision would seek to amplify the impact of small donations to candidates by using public funds to match them six to one. Third, the bill would seek to increase public access to the voting booth by, among other things, limiting abusive state voter ID requirements and establishing automatic registration for most of the voting-age public.
Taken together, these provisions could fundamentally recalibrate the politics of policymaking, both by empowering ordinary Americans and stripping away some of the undue influence that economic and corporate elites now enjoy. In doing so, the bill could help reverse the pattern of dysfunction in the policymaking branches that has long served to undermine the effective functioning of our regulatory system.
To begin with, a Congress more attuned to the public (as opposed to wealthy elites) is less likely to undertake targeted attacks against regulatory safeguards on behalf of the corporate interests that bankroll their campaigns. As CPR Member Scholars and staff have documented over the years, members of Congress have increasingly used such tactics as “anti-regulatory riders” on must-pass appropriations bills and resolutions of disapproval authorized by the Congressional Review Act to block safeguards opposed by powerful corporations. In many cases, campaign finance data reveal that the lead congressional sponsors of these measures have strong financial ties to the very industries that would have been on the hook for significant compliance costs if the regulations requiring them to clean up their pollution or protect their employees from workplace hazards were implemented as planned.
Beyond reducing the influence of money, H.R. 1 could also help alleviate the pervasive hyper-partisanship in Congress that serves to catalyze such attacks on our public protections. For lawmakers looking to score easy political points – particularly, but not exclusively, those in the Republican caucus – these tactics have provided a powerful and all-too convenient weapon of choice for doing so. H.R. 1 could help defuse this dynamic since a more empowered public is unlikely to reward such partisan gamesmanship in the voting booth.
Instead of using their considerable powers and energies to accomplish such destructive ends, lawmakers might enjoy the greater freedom that H.R. 1 provides them to pursue more constructive legislative activities aimed at addressing new and emerging threats to the public. Over the past 10 or so years, we’ve witnessed a wide variety of industrial catastrophes and the emergence of new technologies that pose novel risks to our health, safety, and environment. They include the BP oil spill, the Upper Big Branch mine disaster, the West, Texas, fertilizer facility explosion, the deaths of more than 60 people from a meningitis outbreak linked to a dirty compounding pharmacy, widespread contamination of our drinking water supplies by dangerous toxins like lead and PFAS, and the growing misuse of social media to invade our personal privacy and even undermine our elections – to say nothing of our country’s continued failure to act as we passively watch our last best chance to avert the worst consequences of climate change slip through our fingers. All of these crises have called for an authoritative and resolute policy response, and time and again, members of Congress have abdicated their responsibility.
To their credit, our protector agencies like the Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA) have done their best to fill these gaps, using the existing, albeit imperfect, statutory authorities available to them. These agencies would be much better positioned to tackle these policy challenges – and fulfill their respective organizational missions – if Congress stepped up and provided them badly needed updates to their statutory authorities.
In addition to new and stronger statutory authorities, a less money-driven and partisan Congress under H.R. 1 would be more likely to provide our protector agencies with better financial resources for implementing and enforcing the law so as to better safeguard people and the environment. In particular, H.R. 1 could help bring an end to the current era of “governing by crisis,” in which reflexive partisanship drives members of Congress to use every significant legislative vehicle – appropriations bills, the debt ceiling, and reauthorizations for critical government programs – as a crass hostage-taking opportunity. Among the most significant collateral damage inflicted by this practice is the effective functioning of regulatory agencies. Without the ability to count on consistent funding or legal authority, these agencies are essentially asked to fight with both arms tied behind their backs, leaving them unable to deliver meaningful protections or otherwise promote the public welfare.
Lastly, H.R. 1’s reforms of agency ethics could provide a meaningful response to the problem of corporate capture of the regulatory system by addressing conflicts of interest among high-ranking agency officials and ending the revolving door between regulated industries and the public trust positions charged with overseeing them. If there was any doubt about the harmful effects that corporate capture can have on the functioning of agencies, the Trump administration has laid them to rest. One of the administration’s defining features is the constellation of conflicted agency officials it has installed throughout the government, each of whom are working with a breathtaking brazenness and brutal determination to advance the narrow interests of the corporations to which they are allied, all at the public’s expense. The EPA, increasingly an appendage of the chemical industry, no longer acts to protect public health and the environment. The Department of the Interior is now more of a trade association for the fossil fuel industry than a protector of our public resources. Wall Street confidently counts on the Consumer Financial Protection Bureau to work on its behalf; ordinary members of the public, not so much.
But more can and should be done to put Congress’s house back in order so that it can work more constructively to support the U.S. regulatory system. Importantly, this is not, nor should it be, a partisan issue. Even free market-oriented advocacy organizations like the R Street Institute and the conservative American Enterprise Institute recognize the need to strengthen the institutional capacity of Congress through such reforms as increasing lawmakers’ staffing budgets and reviving the Office of Technology Assessment. Indeed, strengthening Congress as a means for regulatory reform is a much more promising direction than the traditional conservative proposals, which tend to focus on kneecapping agencies.
The hope is that agencies would produce much better regulations for protecting the public if they had a more expert and less partisan Congress to work with as their policymaking partner. For example, the provisions of updated environmental statutes might be grounded in better science, or oversight hearings might provide deeper and better explorations of the relevant issues, rather than serving as a showcase for bellicose chest-thumping. Agencies may technically exist within the Executive Branch, but their work is ultimately authorized and funded by Congress. That means their ability to function constructively will largely depend on how functional and constructive Congress happens to be.
Nor should Congress limit itself to H.R. 1 and other similar measures aimed at fixing the political “ecosystem” in which regulatory agencies operate. Rather, it should follow up with institutional reforms targeted at fixing the regulatory system itself, so that it would be better able to work for everyone – and not just economic and political elites. These reforms might include eliminating unnecessary impediments to the effective implementation of regulations, such as the Small Business Advocacy Review Panels mandated by the Small Business Regulatory Enforcement Fairness Act, or by instituting measures that will affirmatively strengthen the ability of ordinary Americans to participate in the rulemaking process. Sen. Elizabeth Warren’s recently released anti-corruption bill is an example of how this might be accomplished. Her bill would create an Office of Public Advocacy to participate in rulemakings and otherwise assist individuals in dealing with regulatory agencies.
H.R. 1 stands to fix a lot of problems with our democracy and to strengthen the ethical rules that govern the way presidential administrations and Congress operate when working on behalf of the public. Those outcomes will no doubt garner much of the coverage of H.R. 1 in the weeks and months to come, and rightly so. One of the most important benefits of H.R. 1 – and one that might easily be overlooked – is the impacts it would have on the effective functioning of our regulatory system. And these impacts would be yet another important step in the centuries-long march toward “a more perfect union,” by delivering, among other things, air that is healthy to breathe, safer workplaces, and bank accounts protected against fraud or corporate theft.