[Congressional Record Volume 141, Number 119 (Friday, July 21, 1995)]
[Senate]
[Pages S10487-S10488]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                    COMPREHENSIVE REGULATORY REFORM

  Mr. ROTH. Mr. President, why did S. 343 fail last night? As Casey 
Stengel would say, we did not have enough votes. And we did not have 
the votes we needed because no matter what changes were made to S. 343, 
it continued to be mischaracterized. From the beginning of its journey 
through the Judiciary Committee, S. 343 was demonized. Likewise, the 
bill reported from the Governmental Affairs Committee, S. 291, was 
beatified.
  Scores of improvements were made to S. 343 since it was reported by 
the Judiciary Committee. None of the few who understands the 
legislation would disagree. Moreover, yesterday proponents agreed to 
make significant additional changes requested by the bill's critics. 
But just as it went throughout the long floor debate, the opponents 
would not accept some improvements unless we agreed to all of their 
demands. Yes, opponents blocked our attempts to improve the bill 
because they preferred to preserve talking points against the bill. 
This is masterful politics, but this is also what disgusts the American 
people about Congress.
  In addition, it appears that proponents managed to create the 
impression that negotiations were ongoing that promised fruitful 
results. If such negotiations took place, like Senator Johnston, I can 
say that I was completely unaware.
  In contrast to S. 343, S. 291 and its successors have led charmed 
lives. The Glenn substitute, which the Senate rejected, was offered as 
the text that was unanimously reported by the Governmental Affairs 
Committee. But such a claim is highly misleading. Let me tell you why.
  This legislation is rather complicated. The competing versions are 
each over 75 pages in length. Yet the real heart of reform can be 
crystallized in a few concepts and in language that takes just a few 
pages. In fact, judicial review--perhaps the most significant and most 
controversial part of these bills--is provided in just one sentence. 
Yes, just one sentence.
  Suppose that sentence were stricken. Could you say that the bill was 
just about the same? The length of the bill would not be changed; over 
99 percent of the words would be the same. But the impact of the 
legislation would be entirely different. This exemplifies what happened 
to S. 291 as it was transformed into the Glenn substitute.
  There are, as I said, just a few concepts one needs to grasp to 
understand regulatory reform.
  First. The agency should undertake a cost-benefit analysis.
  Second. The agency should apply the cost-benefit analysis.
  Third. If the agency does not comply with the first or second item, 
there is judicial review.
  Fourth. The agency must review existing rules under the above 
procedures.
  Fifth. There must be some way to ensure the agency reviews existing 
rules.
  Proponents and opponents appear to agree only on the first item, that 
agencies should perform cost-benefit analyses. That is because that is 
the status quo. That is what Executive Order 12866 requires today.
  But the Glenn substitute did not require that an agency actually use 
the cost-benefit test. While the Glenn substitute used language similar 
to S. 291 to require that a cost-benefit analysis be performed for 
major rules, the Glenn substitute has no enforcement provision to make 
clear that the cost-benefit analysis should matter--that it should 
affect the rule. The Glenn substitute excoriated the sentence on 
judicial review in S. 291 that made clear that the court was to focus 
on the cost-benefit analysis in determining whether the rule was 
arbitrary and capricious. That provision in S. 291 was taken from a 
1982 regulatory reform bill, S. 1080, which was approved by a 94-0 vote 
in the Senate before it died in the House. In contrast, the Glenn 
substitute only required that the cost-benefit analysis be inserted in 
the Record with thousands of other documents and comments. This is 
essentially what happens under the current Executive order.
  The Glenn substitute had another fatal defect--it did not provide for 
an effective review of existing rules. Effective regulatory reform 
cannot be prospective only; it must look back to reform old rules 
already on the books. Since 1981, repeated presidential attempts to 
require the review of rules by Executive order have only met with 
repeated failures.
  But the Glenn substitute does not cure the problem. Like the 
Executive orders, the Glenn substitute makes the review of rules an 
essentially voluntary undertaking. There are no firm requirements for 
action--no set rules to be reviewed, no binding standards, no 
meaningful deadlines. The Glenn substitute merely asks each agency to 
issue every 5 years a schedule of rules that, ``in the sole 
discretion'' of the agency, merit review.
  The Glenn substitute seriously weakened the lookback provision in S. 
291. While not perfect, S. 291 did have firm requirements. S. 291 
prescribed the category of rules that the agencies were to review. If 
the agency failed to review any of those rules, they terminated 
automatically. The Glenn substitute had no such firm requirements.
  What a review of these elements shows is clear: the Glenn substitute 
was an elaborate re-write of the status quo. Reform--without change. 
For those few who understand what was 

[[Page S10488]]
happening on the Senate floor, it could not be clearer.
  The real losers last night were the American people. We, on the 
Senate floor, know that the discretion of regulators needs to be 
curtailed. We know that reform can be achieved in a way that fosters 
our health, safety, and environmental goals. S. 343 is, in fact, such a 
bill. But unfortunately, that was not quite clear enough last night.


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