On Wednesday, the House Judiciary Committee’s Subcommittee on Commercial and Administrative Law held a hearing entitled “Midnight Rulemaking: Shedding Some Light.” The goal was to examine the impact and possible remedies for midnight rules, which is the term given to last-minute regulations forged by an outgoing administration.
The Bush Administration ushered through 190 “significant rules,” which ncluded 30 “major rules.” The latter have an economic impact of at least $100 million each. The proceedings on Wednesday, which occurred in room 2141 of the Rayburn House Office Building, began with testimony from Congressman Jerrold Nadler (D-NY), who spoke about his introduction of HR 34, the Midnight Rule Act. The proposed legislation allows incoming agency heads to submit their disapproval with a rule created during the final 90 days of an outgoing administration. It was originally introduced on January 6th and currently has no co-sponsors. HR 34 applies to all rules made after October 22nd, 2008. View Congressman Nadler’s testimony.
Nadler discussed midnight rule-making undercutting the democratic process in the United States. He added, “This legislation lays out an approach to enable an incoming President to deal with midnight rules without tying them up for months or years.” The regulations of the Unlawful Internet Gambling Enforcement Act (UIGEA) were among the various midnight rules implemented by former President George W. Bush. They were officially enacted on January 19th, 2009, one day before President Barack Obama took office. Banks and other financial institutions must comply by December 1st.
Nadler’s concern that midnight rules tie up resources for the incoming administration was also highlighted later in his testimony. He explained, “That President binds the hands of his successor. This can be accomplished with minimal accountability. The Bush Administration rushed many rules through the process at an accelerated pace.” Besides internet gambling, other enacted midnight rules dealt with family planning, endangered species, and global warming.
The Congressional Review Act, which was signed into law in 1996, gives Congress the power to override regulations such as midnight rules. However, it calls for a vote on each individual rule in question. According to Nadler, “Given the sheer number of midnight rules, this would require more time than Congress has available.” He summed up the purpose of HR 34 by expounding, “This proposal would place a check on midnight rules. The American people are entitled to alter the direction of their government. That is why we have a new Presidential election every four years.”
Nader did not field questions from the Congressional panel in an effort to accommodate testimony from Robert F. Kennedy, Jr., Chairman of the Waterkeeper Alliance, who had a plane to catch. Kennedy noted that he “strongly supports” Nadler’s Midnight Rule Act. Kennedy focused primarily on environmental statutes that were trampled on by the Bush Administration’s policy making, including the Endangered Species Act, hazardous waste disposal standards, factory farm procedures, and stream dumping rules. His testimony was highlighted by a run-in with Congressman Steve King (R-IA), who questioned his character by asking if his interest in the environment was spurred by mandatory community service. King’s comments were in response to Kennedy asking about the sources of the Congressman’s campaign contributions.
Internet gambling was mentioned by name by Subcommittee Chairman Steve Cohen (D-TN). The lawmaker asked OMB Watch Executive Director Gary Bass which of the witness’ 25 examples of midnight rules would be the most important for the new Congress to address. Cohen gave the example of internet gambling, noting that William Wichterman, a former Special Assistant to George W. Bush and NFL lobbyist, may have been instrumental in passing the UIGEA regulations. Bass responded, “We didn’t raise that, but it would be an example of the kind of thing we’re talking about.”
According to Curtis Copeland of the Congressional Research Service, the Congressional Review Act has been used once since its inception in 1996. Moreover, all regulations passed since May 1st, 2008 would be eligible for review, amounting to 1,800 in total. He added that the definitions of “rule” and “agency head” must first be defined in order for HR 34 to be effective. In his submitted testimony, Copeland identified the last-minute passage of UIGEA rules as “problematic.”
