Regulatory Accountability Act of 2015 and the Bumpers Amendment

 The Regulatory Accountability Act is one of the most comprehensive regulatory reform bills under consideration by the Congress.

It should be noted that more than three decades ago Senator Dale Bumpers of Arkansas, a senator with a near 100% rating by liberal groups, introduced the Bumpers Amendment, a proposal to improve the regulatory process by eliminating the deference accorded to agency decisions.

It is very possible that the Bumpers Amendment would have passed had it not been subject to immense opposition by the Carter White House. An Index of OMB internal papers identifies a White House  Memorandum on Bumpers (Item 3) which CRE is trying to locate.

Academicians might analyze both the differences in the two methods for “improving” the regulatory process and the significance of the aforementioned differences given the institutional changes that have occurred over the past three decades.  A reference document is the Review of Jurisdictional Issues Under the Bumpers Amendment by Professor Ronald Levin.  The ABA  supported the Bumpers Amendment which assisted in it being passed by a substantial margin in the Senate during the 106th Congress at a time when Senator Bumpers party was the majority in both the House and Senate.

There is a basis for disagreements on the best way to improve the regulatory process and there might be a need to tailor legislation to particular agencies, or to independent  agencies in lieu of Executive Branch agencies. Nonetheless  one agency in need of immediate improvement is the FTC who denies  the  the right of  the public to utilize the Data Quality Act unless they meet the requirements of Article III Standing.  Enactment of the Bumpers Amendment for FTC programs would level the playing field.

Why not pass a Bumpers Amendment applicable to only the FTC?



N. B.  As noted above CRE believes it is interesting to research the central components of  the  Regulatory Accountability Act of 2015  to determine if  it  contains  traits  central to  the  Bumpers  Amendment which, in the opinion of Professor Levin  lead to its downfall ,  namely “ A  statute that prescribes the scope of judicial  review for an entire government’s activities is not a suitable battleground for a campaign against “overregulation.”  Although the merits of this opinion are  open to debate an  attendant  observation made by the Professor is without question right  on point and should guide the drafting of  Congressional reform legislation:  “Although it is trite to remark that a reform proposal cannot be satisfactorily evaluated until the courts have interpreted it, in this instance the cliché  applies with special force.”

An  example of a statute that not only highlights the  significance of the  judicial interpretation of  legislation  versus the plain meaning of a statute but also demonstrates that the Congress has previously enacted a statute to address “the scope of review for an entire government” is the passage of the Data Quality Act .  To the drafters of the Data Quality Act the denial of a petition  authorized in a statute which allows  the public to “seek and obtain” a correction of inaccurate information is  without a doubt   reviewable  under the  APA;  nonetheless  several judges do not share this opinion however plainly set forth in the underlying statute.

Lastly it should be noted that the last major attempt by the Congress to overall the machinery that governs the regulatory state was the Dole Bill; a massive piece of legislation that increased in size with each Congressional hearing and failed to be enacted.  Its earliest beginnings can be traced to a very limited  proposal to have the  White House issue an Executive Order on Risk Assessment.  The DQA passed  in part because it was focused on one particular problem, the use of government reports as a de facto mechanism for regulation; a phenomenon which eventually occurred in force  as the result of the internet.  See Tozzi v HHS which preceded passage of the DQA but provided one  impetus to arm  OIRA  with  a new tool to control the regulatory state.






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