Senator Elizabeth Warren and several other Democrats have just introduced a bill, the Stop Corporate Capture Act, designed to checkmate SCOTUS’s recent decision in Loper Bright v. Raimondo (see this PubCo post), which overturned the decades-long deference of courts, under Chevron U.S.A., Inc. v. Nat. Res. Def. Council, to the reasonable interpretations of statutes by agencies. The doctrine of Chevron deference mandated that, if a statute did not directly address the “precise question at issue” or if there was ambiguity in how to interpret the statute, courts had to accept an agency’s “permissible” interpretation of a law unless it was arbitrary or manifestly contrary to the statute. According to Warren’s press release, the “Stop Corporate Capture Act codifies the Chevron doctrine and reforms the regulatory process to end corporations’ influence over the rulemaking process, prioritize scientific and public integrity, and reduce delays in implementation of laws.” The bill, she contended “will bring transparency and efficiency to the federal rulemaking process, and most importantly, will make sure corporate interest groups can’t substitute their preferences for the judgment of Congress and the expert agencies.” Senator Chris Van Hollen, another sponsor of the bill, observed that “[i]t’s impossible to overstate the harm that Americans could face if we don’t act. This legislation protects federal agencies’ bedrock authority to carry out the laws that Congress passes—while making the regulatory process more open, transparent, and grounded in the public interest.” A similar bill, introduced by Representative Pramila Jayapal, is pending in the House. Will the legislation succeed? Don’t bet on it. According to Reuters, the bill has “slim chances of passing in an election year in the Senate, which Democrats only narrowly control.” Still, there’s always next year—depending, of course, on the results of the election.
The press release includes a link to a bill “two-pager,” which explains the rationale for the bill and summarizes its key provisions. The two-pager contends that the Loper Bright decision overturning Chevron
“undermines our government’s ability to promote worker safety, ensure clean air and water, and protect consumers. It helps powerful corporate interests use lawsuits to capture control over policies that help Americans. Chevron acknowledged that Congress intended agency experts to promulgate rules and regulations to implement laws passed by Congress. This allowed Congress to set policy and guide the direction of the government, while technical experts at our federal agencies worked out the details of implementation. Without Chevron, it will be difficult or even impossible for our government to effectively govern, leaving all Americans vulnerable and preventing the United States from addressing current and future challenges. The Stop Corporate Capture Act would codify Chevron into law and reform the regulatory process to end corporate capture, promote scientific integrity and public integrity, reduce regulatory delays, and level the playing field to make sure that all Americans can have their voices heard.”
As summarized in the two-pager, the key provisions of the bill are:
- “Protect Chevron Doctrine
- Codify Chevron deference, allowing expert agencies to conduct rulemaking in line with their reasonable interpretation of their authorizing statutes.
- Modernize and Reform the Regulatory Process
- Streamline Office of Information and Regulatory Affairs (OIRA) review of regulations, creating a 120-day maximum limit on the OIRA review period.
- Clarify that courts may compel statutorily-required rulemaking, for the first time defining a one-year delay as ‘unreasonable’ for that purpose.
- Authorize agencies to quickly reinstate any rules that were rescinded through the Congressional Review Act.
- Reform cost-benefit analysis to emphasize public benefits, including non-quantifiable benefits like promoting human dignity, securing child safety, and preventing discrimination.
- Reaffirm the primacy of agency statutory requirements over cost-benefit analyses when agencies design new regulations.
- Empower and Expand Public Participation in Rulemaking
- Create an Office of the Public Advocate, charged with promoting and improving agencies’ public engagement practices, while helping members of the public participate more effectively in regulatory proceedings.
- Strengthen agency procedures for notifying the public about pending rulemakings.
- Provide the public with greater authority to hold agencies accountable for unreasonable delays in completing rules.
- Provide the public with greater authority to push agencies to initiate new rulemakings.
- Require agencies to respond to citizen petitions that contain 100,000 or more signatures.
- Increase Transparency and Protect Independent Expertise in Rulemaking
- Require all rulemaking participants to disclose industry-funded research or other related conflicts of interest.
- Require any submitted scientific or other technical research that raises a specified corporate conflict of interest be made available for independent public review.
- Bring transparency to the ‘black box’ White House regulatory review process by requiring disclosure of changes to draft rules during that process and the source of those changes.
- Require agency officials to provide justification when the regulatory review process ends with a rule being withdrawn.
- Establish monetary penalties for corporate special interests that knowingly submit false information during the rulemaking process.
- Reform the ‘negotiated’ rulemaking process so that it can no longer be abused by corporate special interests to create weak public safeguards.”
