CSS Opposes the Regulatory Integrity Act (H.R. 1004)
February 28, 2017 | Download PDF
The Coalition for Sensible Safeguards (CSS), an alliance of over 150 labor, scientific, research, good government, faith, community, health, environmental, and public interest groups, strongly oppose H.R. 1004, the Regulatory Integrity Act.
The bill is a brazen attack on the public’s right to know by micro-managing the type of information that agencies are allowed to communicate to all of us when taking actions to protect the public, our economy, and the environment. An open government that prioritizes democratic public participation requires agencies to be able to effectively convey information to the public and make agency policy positions clear to the public. This bill will make our government less open and less democratic and should therefore be rejected.
H.R. 1004 will significantly inhibit federal agencies’ ability to engage and inform the public in a meaningful and transparent way regarding its work on important science-based rulemakings that will greatly benefit the public. As a result, the bill will lead to decreased public awareness and participation in the rulemaking process in direct contradiction of the Administrative Procedure Act and agencies’ authorizing statutes, which specifically provide for broad stakeholder engagement.
Substantial ambiguities in the bill threaten to create uncertainty and confusion among agencies about what public communications are permissible, and thus risks discouraging them from keeping the public apprised of the important work that they do on its behalf. In an era when agencies should be increasingly embracing innovative 21st century communications technologies needed to reach the public, including social media, H.R. 1004 sends exactly the wrong message.
The legislation strictly prohibits agencies from issuing “public communications” that “emphasize the importance” of a particular agency action unless the communication has the “clear purpose of informing the public of the substance or status” of the particular action. The legislation applies to a wide swath of regulatory actions including rulemakings, guidance, policy statements, directives and adjudications.
While H.R. 1004 assumes that the distinction between informing the public of an agency action and emphasizing the importance of that action is self-evident, in practice the distinction is anything but clear. As a result, agencies are likely to avoid any public communications that risk running afoul of this ambiguous prohibition, no matter how informative the communication might be for the public.
For example, various executive orders and statutes compel agencies to conduct cost-benefit analysis on their pending rulemakings, and thus to determine whether the rule’s benefits outweigh its costs. As currently written, the Regulatory Integrity Act could potentially prohibit an agency from communicating the results of such an analysis when it concludes that a particular rule generates net benefits. After all, that conclusion is tantamount to declaring that the rule makes society better off on balance. Instead, the agency would likely be forced to simply share the basic information that they had conducted a cost-benefit analysis of the regulation without being able to share the further crucial information that the regulation’s benefits exceeded the costs. Given that many of the bill’s sponsors enthusiastically endorse the expanded use of cost-benefit analysis in the rulemaking process, these kinds of arbitrary prohibitions on communications concerning cost-benefit analysis seem especially peculiar.
Agencies would encounter this problematic scenario when deciding to share vital information, such as:
- How many lives would be saved by a regulation;
- How much property damage would be averted;
- How much money consumers would save; and
- Any of the other myriad public benefits that regulations are designed to provide.
The stark absence of any clear bright-lines in the legislation delineating what is and what is not prohibited public communications is sure to have a chilling effect on agencies, with the predictable result that agencies will be less willing to share crucial information with the public and that the public will be less informed about government activities.
H.R. 1004 also will severely impede, rather than enable, agency use of new communication technologies, most notably social media platforms, to reach the public. Regulatory experts and scholars agree that agencies should be using social media forums and platforms.
Agencies will find it difficult, if not impossible, to communicate with the public through social media under H.R. 1004 since the bill prevents any usage of social media that both conveys information about a regulatory action but also promotes the importance of that action.
For example, the U.S. Department of Interior operates a Twitter and Instagram account that is very popular with the public because it regularly features photos of beautiful landscapes and wildlife from national parks across the United States. Under the Regulatory Integrity Act, the Department might be prohibited from posting such photos on Twitter and Instagram because they are not solely informational in nature and could be interpreted as promoting the importance of the department’s work in environmental and wildlife preservation.
Enactment of H.R. 1004 will lead to less transparency in the government, make it more difficult for agencies to use new communication technologies popular with the public, and generally chill agency communications with the public on important matters due to the lack of any bright-line standards for agencies to follow.
We strongly urge you to oppose H.R. 1004, the Regulatory Integrity Act.
President, Public Citizen
Chair, Coalition for Sensible Safeguards