Media: Openly Using a Bill Clinton/Harry Reid Law = ‘Stealth Assault on U.S. Regulations’

Stealth assault ||| National ArchivesAs mentioned here previously, the media reaction to President Donald Trump's rollback of some regulations has ranged from panic to laugh-out-loud hysteria. The default assumption of regulatory virtue is heavily skewing the coverage of allegedly impartial news organizations, perhaps suggesting (if unwittingly) that Trump is providing an overdue jolt to a long-comfortable status quo.

Your latest example comes from Reuters yesterday: "Window closing for Republican stealth assault on U.S. regulations."

Focus first on the word "stealth." Merriam-Webster gets to the point of what that adjective means: "intended not to attract attention." The stealth bomber (pictured, below right), probably the most famous promulgation of the term, was designed (in secret!) to avoid detection by radar, so that it could fly missions without attracting unwanted attention. So what furtive, behind-closed-doors action is the GOP concocting? Uh, openly introducing, debating, and then passing bills in Congress, using a law co-sponsored by Democrat Harry Reid and signed into being by Bill Clinton?

The Congressional Review Act, as discussed here last week, certainly wasn't used much during its first two decades of existence—successfully just once, as a matter of fact. That's by design, and through the realities of partisanship. The CRA gives Congress 60 working days from the moment a regulation is published in the Federal Register to reverse it, and functionally that's likely to happen only when the White House has just changed parties. We are nearing the end of the third such window of opportunity, and Republicans have indeed taken it, with 11 successful repeals. (Or "aggressive use of an obscure U.S. law," in Reuters' ominous language.)

That plane is the GOP. Those bombs are Congressional Review Act repeals. The clouds are YOUR FACE. ||| U.S. Air ForceSince stealth implies obfuscatory intent, and since these repeals have been carried out fully in the open, clearly the more appropriate word would be quiet, which places more onus on the attention spans of the audience, including (especially?) political journalists. The Trump administration throws off a half-dozen major headlines seemingly each day, so it's easy for a dozen mini-deregulations to get lost in the shuffle. But what about that word "assault"?

Well, for one, it sure is popular. Politico wrote a month back about "The coming GOP assault on regulations." Trump wants to "codify an assault on regulatory regimes," CNN's Stephen Collinson recently warned. There's "Trump's assault" on the Environmental Protection Agency (The New Republic), "Trump gives his blessing for coal industry to renew its assault on Americans," (Solomon Jones, Philadelphia Inquirer), and on and on. Any linguistic similarity to activist or interest groups is puretly coincidental, I am sure.

But do 11 CRA repeals—which were the only regulatory actions referenced in the Reuters article—truly constitute an "assault"? Down toward the bottom of the piece, the journalism undermines the headline:

Even though the CRA effort is winding down, [the] brief campaign showed that aggressive use of the law could succeed, and provided Republicans with some modest, but needed successes in a time when they are struggling with larger matters.

Who knew that stealth assaults could be both "brief" and "modest"? More importantly, how significant are a dozen regulations in the scheme of things? Turns out, not so much.

The regulation-skeptics over at the Competitive Enterprise Institute have for two decades put out an annual publication called Ten Thousand Commandments. The most recent edition found that there were 3,410 new rules written into the Federal Register in 2015, adding to the 90,836 that had been issued from 1993-2014. That comes out to a 23-year average of 11 new regulations per day.

So this "assault" on the regulatory state, which by definition sets the Federal Register's affected rules back to the neo-Dickensian days of May 2016, is undoing one entire day's worth of regulatory activity. Even if you assume that the affected regs are 10 times more significant than your average rule, that's still just 10 lousy days out of one lousy year. And as the Reuters article makes clear, this particular deregulatory window is closing.

From here on out the main ways that the GOP-led Congress can affect regulation is by approving President Trump's deep cuts to regulatory agencies (very bloody unlikely), re-writing or repealing the underlying laws, such as the Clean Air Act, that set up the regulatory machinery in the first place (a total nonstarter), or pushing through the Senate the still-unintroduced Regulatory Accountability Act, which would add extra cost-benefit and legal hurdles to major regulatory efforts, and which would require the involvement of deeply reluctant Democrats. Barring all that—I'm taking the under—most deregulatory action from here on out will be the dull, slow stuff of agency hearings, public comments, lobbying, revisions, and eventual promulgation. The activity in aggregate may yet prove significant—a little Food and Drug Administration reform could go a helluva long way, for example. But we're still a considerable distance from regulatory assault, at a time when the 115th Congress has yet to demonstrate aptitude to pass anything more complicated than a party-line repeal of a Mickey Mouse reg.