Just a few weeks after the Supreme Court stripped power away from federal agencies by overturning what is called the Chevron doctrine, a group of senators want to cement that doctrine into law and reform the regulatory process.
On Tuesday, July 23, a coalition of senators led by Sen. Elizabeth Warren, D-Mass., introduced the Stop Corporate Capture Act. The bill attempts to codify the Chevron doctrine, which gives federal agencies the power to interpret ambiguous laws when rolling out regulations. It also calls for sweeping changes to the regulatory process that will result in more scientific and public integrity, more transparency and more public participation and that will streamline the process to reduce regulatory delays.
For 40 years, the Chevron doctrine instructed federal courts to defer to agencies’ interpretation of laws that did not explicitly direct them to implement a regulation. Opponents argued that the deference gave too much power to politically motivated agencies. Supporters claimed agencies are the experts on subject matter relating to a regulation and relevant statutes.
On June 28, the Supreme Court overturned the Chevron doctrine in a 6-3 decision split along ideological lines. In addition to the power of interpretation being shifted to federal judges, the decision is expected to trigger a “tsunami of lawsuits against agencies,” as Justice Ketanji Brown Jackson wrote in her dissent.
The Stop Corporate Capture Act would essentially resurrect the Chevron doctrine by making courts’ deference to an agency’s “reasonable or permissible interpretation” of the authorizing statute federal law.
The coalition of senators claim that corporate interests are hijacking the government by exerting their power in the regulatory process.
“The federal rulemaking process is how governmental agencies implement and enforce the law,” the senators state in a news release. “Currently, industry-backed lobbyists hold more negotiating power in the regulatory process than the general public. They schedule private meetings with regulators, fund sham scientific studies to submit with public comments and misrepresent the negative impact of stricter regulatory oversight. These actions slow down the enforcement of important regulations, and the American people pay the price.”
Reforming the regulatory process
In addition to codifying the Chevron doctrine, the bill includes several changes to the regulatory process.
Significant regulatory actions must undergo a review process. The Stop Corporate Capture Act would require that process to be completed within 60 days with only one time extension allowed. The bill also would allow courts to force an agency to start the rulemaking process if it has not done so within one year of the authorizing statute going into effect.
Public participation is also addressed. The bill creates an Office of the Public Advocate, which would improve agencies’ public engagement and help the public participate more effectively in regulatory proceedings. Furthermore, agencies would be required to respond to any public petitions on an action that receives 100,000 signatures.
On the topic of transparency, the Stop Corporate Capture Act would require people who submit comments referencing a study that they directly or indirectly funded to disclose the following:
- Amount and source of funding for that study
- Whether the study went through a review process
- Nature of the financial relationship between the person conducting the study and any person affected by the proposed rule
Any study that presents a corporate conflict of interest would be made available for independent public review. If conflict of interest was not disclosed, the agency could exclude the submission from the record until such disclosures were made. A conflict of interest is defined as any study for which at least 10% of the funding came from an entity subject to the jurisdiction of the rulemaking agency.
Regulations struck down through the Congressional Review Act will be allowed to be reinstated if the bill is passed. With enough votes, Congress can eliminate an agency’s rule through a CRA resolution. Although rare – it has been done only 20 times out of more than 250 attempts – if a rule is rescinded by a CRA resolution, an agency cannot issue a substantially similar rule. The Stop Corporate Capture Act would eliminate that provision, allowing agencies to reinstate a rule that Congress rejected as long as it goes through the rulemaking process.
This is not the first time the Stop Corporate Capture Act has been introduced. In December 2021, Rep. Pramila Jayapal, D-Wash., first introduced the bill in the House. It garnered only 12 co-sponsors and died in committee. Jayapal reintroduced the bill in March 2023, and it currently has 74 co-sponsors, all Democrats. It has been sitting in committee ever since.
The latest version of the bill in the Senate is the first to include a provision to codify the Chevron doctrine. It is being co-sponsored by Sens. Richard Blumenthal, D-Conn.; Cory Booker, D-N.J.; Mazie Hirono, D-Hawaii; Ben Ray Luján, D-N.M.; Edward Markey, D-Mass.; Jeff Merkley, D-Ore.; Bernie Sanders, I-Vt.; Chris Van Hollen, D-Md.; Peter Welch, D-Vt.; and Ron Wyden, D-Ore. LL
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