Here We Go Again: The Polluters and Poisoners Gear Up for the Next Congress

Twenty years ago, the radical wing of the Republican Party announced its “Contract With America,” a set of policies and actions Rep. Newt Gingrich and his caucus pledged to accomplish if they were elected to a majority in Congress. The Contract included eight internal reforms to change congressional operations (things like applying labor laws to Congress and putting term limits on committee chairmen) and ten bills affecting national policy that would be brought to the floor and voted on within the first 100 days of the new Congress.

Gingrich’s early battles ultimately ended in victory for the public and for the environmental and consumer protections he wanted to undo. Gingrich’s bills were made worse as they moved through committee and were amended in the House and Senate, finally resulting in what one senior Republican Senate staffer called “a revolution”—a system that would allow any corporation to escape enforcement through legal or procedural loopholes. Every regulation would be effectively voluntary, and the polluters and producers of unsafe products would have nothing to fear from the EPA, the Consumer Product Safety Commission, OSHA, or any other regulatory agency.

The vehicle for this revolution was one of the first bills considered and passed in the House in 1995, “The Job Creation and Wage Enhancement Act.” Its goal was to subject federal regulations—regardless of statutory mandates to the contrary—to new risk assessment and cost-benefit analysis requirements and to create multiple opportunities for businesses to block federal rules and interfere with their enforcement. Big chemical and pharmaceutical manufacturers didn’t want clean water laws interfering with their profits, the meat industry wanted to prevent new rules about bacteria and contamination, and construction companies didn’t want to have to comply with new workplace safety standards. The legislation would have stopped new rules in their tracks.

The Senate version of the bill, the “Comprehensive Regulatory Reform Act,” was blocked—just barely—by a filibuster led by Sens. Edward Kennedy, John Glenn, Barbara Boxer, and Carl Levin. The Clinton administration and various Democratic senators tried to compromise with the Republicans, but Sen. Orrin Hatch (R-Utah) and other Senate leaders wanted total corporate control over the regulatory agencies, and nearly succeeded.

What saved the regulatory system—in addition to smart lobbying by labor, environmental, and consumer groups and the passionate opposition of key Democrats—was a series of timely, highly publicized disasters that reminded the public why we have federal regulations. This included children dying from flesh-eating bacteria in their hamburgers, and an epidemic of water-borne parasites that killed 100 people and infected another 400,000 in Milwaukee, Wisconsin.

The business lobby wasn’t able to get Congress to eliminate the government’s ability to protect the public in 1995, but what will happen in the next Congress? The Republicans that swept into power on Tuesday are poised to renew the war on regulation the Gingrich Congress started in 1994. Last week, conservative columnist George Will called for the Senate to pass the REINS Act, which would eliminate the power of federal agencies to issue regulations. The bill would allow agencies to only propose rules, which would die if Congress failed to enact them within 70 session days—a prescription for total regulatory gridlock, given the inability of Congress to pass anything, let alone rules that would constrain business and protect the environment, consumers, or workers. Will isn’t satisfied with blocking new regulations; he doesn’t want current rules enforced, either. And he wants Congress to abolish the Consumer Financial Protection Board, which was created to prevent abusive practices by banks, payday lenders, and other financial institutions in the wake of the sub-prime loan scandal.

Congressional Republicans hardly need encouragement, having passed dozens of bills to abolish various federal regulators, undo rules already on the books, and ensure that no new rules ever take effect. H.R. 2542, for example, would add seven new requirements for every agency rulemaking and make compliance with them judicially reviewable—making possible additional legal challenges that would waste taxpayer dollars and delay needed regulatory protection against harmful air and water pollution or dangerous products or practices. (Corporations hate litigation and trial lawyers, unless they are the plaintiffs; they are always looking for new ways to sue the government and block regulation.) Another bill the House passed, H.R. 2122, would impose several new analytical requirements—all judicially reviewable—plus new procedural steps, and would require agencies in certain cases to adopt the least costly method of regulation, even if a more costly method yielded greater public health benefits. It would put into effect a principle that costs to business are more important than the safety or health of the public.

Speaker of the House John Boehner and the Senate’s likely new Majority Leader Mitch McConnell have already announced that addressing “excessive regulations and frivolous lawsuits” will be one of their top priorities. Congress will soon be awash in legislation with positive-sounding names about regulatory accountability, efficiency, or transparency or sounder science. Their real goal will be helping corporations escape accountability, and reducing the ability of ordinary people to use the power of the government to protect them from harm.

Those of us who don’t make PAC contributions, employ legions of corporate lobbyists, or donate millions to conservative lawmakers will have to depend on President Obama and his veto pen to protect us and the public trust.