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By Fred Kelly Grant

Note: This is the third and final post in a series explaining the difference between federal agencies’ “Public Comment” periods for new regulations, and “Coordination,” a legal obligation of agencies but rarely obeyed. Click links to read Part 1 and Part 2.

Good public policy should always be arrived at through the use of the scientific method. A good scientist does not bias ​himself with a predetermined outcome of an experiment and then build data around ​that bias to rationalize the outcome ​he wants.

A good scientist puts bias aside and lets ​observations and data drive the conclusions.

This is not even happening with science in America. Science has been replaced by advocacy science, which is not science at all. Where scientists used to cherish their credibility through bending over backward to ​avoid the influence of bias, the majority of scientists today either work for the federal government​ or under a government-funded grant, and are thus biased to reflect the will of whatever administration is in power.

​Failing to reflect that will in their findings means grants are not renewed, and the institutions they represent are hurt financially. There is heavy monetary reason for them to find the way to rationalize the desired decision.

Why is advocacy science bad?

Think of a King decreeing the world is flat and his scientific council bringing to the table data that justifies the King’s conclusions. No one would be any the wiser that the world is not only round but it is spherical. We only advance as a society when we allow the truth to set us free from man-made constructs like the impediments imposed by special interests.

In the vaping world, it is hard for the public to buy, when the scientific data and observations are reviewed, that vaping is detrimental to public health. Common sense would dictate that in the name of public health that policy be that the world’s best smoking cessation tool and should be nurtured and embraced by public health officials.

Clearly the FDA has a bias toward vaping that does not work in the best interests of the public.

This is why pursuing coordination is vital to the health and longevity of the vaping industry.

It is clearly evident that FDA leaders have prioritized special interest agendas ahead of public health. If the FDA were a legal prosecutor and public health were put on trial, ethically, the FDA would have to disclose its conflict of interest with big Pharma and recuse itself from the trial, while asking for an unbiased special prosecutor to be appointed. Unfortunately, very few federal agencies have the temerity to act ethically and responsibly

We must always remember that the “Law” is a minimum standard ​of what we are required to do. Ethics

imposes a higher standard and is based upon what we ought to do. Federal agencies only operate within the confines of the law and have no equivocations about acting unethically. Just because something is legal does not mean it is ethical. ​So often the question posed by government officials to their counsel is “CAN we do this?” without any concern about “SHOULD we do this?”  

I have been there, spending many years as counsel to federal agencies, two Governors, county governing boards, zoning boards, as well as city and town councils. So many agency leaders have ​either forgotten to ask the “SHOULD” question or know that it would interfere with the path of action they have already set upon.

Coordination is a tool that holds federal agencies accountable and helps agency leaders remember that their role is first and foremost to serve us.  

Coordination helps the public have a say through local officials to whom all of us have ready access. You see your council person in the supermarket line, or at lunch in the diner, or at the service station, or in church, or at the school carnival. He or she is responsive to you because your vote is far more important percentage wise than it is to the Congressman or Senator.  When those local officials voice your position, they push agency leaders to act in a more ethical manner or suffer the consequences of their actions.

Coordination helps society to gain value from diverse opinions and build consensus rather than allow federal agencies to act within a vacuum.

Coordination helps federal agency leaders honor the public’s expectations rather than special interest expectations.

Coordination helps promote equality and recourse for all people to be treated equitably.

Coordination supports the public’s right to know and promotes a robust public involvement in policy decision making.

This is why all Americans should not only support the use of coordination,  BUT INSIST ON IT.

If you advocate building increased confidence in the decision making of federal agencies consistent with ethical behavior that benefits the public, if you specifically advocate freedom of choice for those that would rather vape and protect their health and lives, then I hope you will join us in our efforts to promote coordination.

Fresh from Congress’ successful use of the Congressional Review Act to undo 14 Obama-era regulations earlier in 2017, U.S. senators are taking further steps to reassert their constitutionally delegated responsibility for federal rulemaking.

On May 17, the Senate Homeland Security and Governmental Affairs Committee sent five bills to the full Senate that would reform how federal agencies implement rules and how such rules are finalized.

Among the proposals passed by the committee were the Midnight Rules Relief Act, the Regulations from the Executive in Need of Scrutiny Act (REINS), and the Regulatory Accountability Act (RAA).

The House of Representatives passed versions of each of these regulatory reform bills earlier in 2017.

Codifying, Scrutinizing, Approving Regulations

The Midnight Rules Relief Act would allow lawmakers to block rules by using the Congressional Review Act as a bundle rather than one rule at a time. Had this legislation already been law, Congress could have revoked hundreds of last-minute Obama-era regulations, rather than just the 14 it did reverse.

The REINS Act requires congressional approval of all new major regulations, defined as any regulation imposing $100 million or more in costs on the economy, before they may take effect. Under REINS, any major regulation not approved by a majority vote of Congress would be nullified.

RAA would modernize the 70-year-old Administrative Procedure Act by codifying several existing executive orders, including Executive Order 12866,signed by President Bill Clinton in 1993. EO 12866 mandates the benefits of any proposed rule must outweigh its costs. The bill calls for assessment of direct, indirect, and cumulative economic burdens for rules estimated to cost more than $100 million per year.

The bill would also require agencies to consider alternatives to any proposed rule; to rely on the best available scientific, technological, and economic information for proposed and final rules; and to hold public hearings on disputed factual issues.

The REINS Act and the Midnight Rules Relief Act passed out of committee on strictly party line votes with no Democratic support. Republican Sens. Rob Portman (R-OH) and Orrin Hatch (R-UT) joined Democrats Heidi Heitkamp (D-ND) and Jim Manchin (D-WV) in cosponsoring RAA.

Calls for More Reform

The American Action Forum (AAF) calculates the 14 rules blocked by Congress using the CRA since January will save government agencies more than $3.7 billion in regulatory costs and businesses more than $36.2 billion in compliance costs while eliminating 4.2 million hours of paperwork over the expected lifetime of the regulations.

Sam Batkins, AAF’s director of regulatory policy, says the bills under consideration are a good start, but with a national regulatory burden topping $1.9 trillion in 2016, there’s a long way to go.

“There were only three major rules having an economic impact of $100 million or more among the 14 rescinded via the CRA, so rescinding those measures alone won’t drive notable economic growth,” Batkins said. “I think Congress and the [Trump] administration view the CRA votes as just the first in a series of steps to enact a durable legacy of regulatory reform.”

Batkins says the bipartisan support for the Regulatory Accountability Act gives it the greatest promise for enactment among the packet of measures passed by the committee, although Senate filibuster rules mean even the bill would need six additional Democrats to approve allowing it to proceed to a full vote, assuming no Republicans vote against it.

‘Better Rulemaking Outcomes’

Emily Benavides, a spokeswoman for Portman, told Morning Consult RAA would promote better government.

With better information and a little more time up front on the biggest rules, this bill will lead to better rulemaking outcomes that can withstand challenges in court, rather than spawn decades of litigation that we see now,” Benavides told the website.

Jeff Stier, a senior fellow at the National Center for Public Policy Research, lauds all the measures passed by the committee, saying such a wholesale overhaul transcends political parties, presidents, and special interests.

“It’s not so much about what Obama did or what the Trump regulators are going to do,” said Stier. “The executive branch can only regulate when Congress gives it the authority to regulate.

“With everything else going on in Congress, sometimes [Congress] gives broad regulatory power to the agencies, which often wind up doing something that was not intended by Congress,” Stier said.

Senate Rules Favor Status Quo

Stier says Congress has a tough time asserting itself due to the nature of the bicameral, two-party system and Senate rules, because having a simple majority in favor of reform is not enough to get it done.

“Ask [Wisconsin] Sen. Ron Johnson if he feels like his party is in control of the Senate,” Stier said. “No, when the Senate doesn’t have 60 votes, it’s hard for it to join with the House and get stuff done.”

This creates a vacuum for the executive branch to legislate through regulations, Stier says.

“It is very important Congress reassert its authority and say, ‘The executive branch cannot go at it alone,’” said Stier. “Even if Congress gives authority to agencies, that doesn’t mean the authority is without limits or oversight.

“Certainly, we rely on the agencies for expertise and to make decisions, but there must be better consultation with Congress, regardless of who’s in charge of it,” Stier said. “If there’s a Democrat in the White House, they still ought to work with the Republican Congress and vice versa. That’s good system, good process, but right now, we’re not getting it.”

Kathy Hoekstra (kathy@kathyhoekstra.comwrites from Saginaw, Michigan.

This article originally appeared at the Heartland Institute.