Senators Weigh Updates to Administrative Procedure Act, Eyeing Net Neutrality Rulemaking

“I personally believe we need to amend the APA,” said Sen. Heidi Heitkamp, D-N.D., blaming Congress for abdicating its legislative role. “We need to talk about what independent agencies should be required to do in terms of cost-benefit analysis.” She wants “a new path for amending the APA” based on “common ground,” she said, saying the issue should be less partisan.

Federal regulation is “an enormous self-inflicted wound and burden,” Johnson said. He expressed an interest in legislatively amending the APA multiple times and asked witnesses about specific problems he saw and ways to change the law, staying for multiple rounds of questions as the lone senator in the room.

“We need to update the APA,” agreed Sen. Rob Portman, R-Ohio. He wrote the Regulatory Accountability Act (S-2006/HR-185), which he said “would help solve some of these problems.” That bill passed the House in January 2015 on a 250-175 vote, attracting only eight Democrats in support, and hasn't advanced beyond the Homeland Security Committee in the Senate. The White House announced opposition to that bill ahead of the House vote. The one backer who’s not a Republican is Sen. Angus King, I-Maine. Portman also lauded the work from Heitkamp and Sen. James Lankford, R-Okla., as leaders of the committee’s Regulatory Affairs and Federal Management Subcommittee. He complained about the lack of cost-benefit analysis for major rules, such as the open Internet order, and asked Free State Foundation President Randolph May about what would have happened had the FCC done such an analysis. “Would we have ended up with a better rule?” Portman asked. May said that process may have yielded no net neutrality rule or close to it.

“I would love to see us pass that,” said Sen. Kelly Ayotte, R-N.H., of the Regulatory Accountability Act, which she co-sponsors. She and some witnesses also referred favorably to the Regulations From the Executive in Need of Scrutiny Act (S-266, HR-427), which the administration also opposed.

May slammed the FCC for what he considered process failings and backed passage of “bills like the Accountability Act and things like that that at least focus attention on the major rules of economic significance and how those are defined, [so] I think it’s important that type of legislation be passed,” May said in his testimony, saying that would shed more light on major FCC rules.

Committee ranking member Tom Carper, D-Del., didn’t attend the hearing due to a family death but countered the hearing’s premise in his prepared opening statement. “After reviewing the information we received, we found that the process the Administration used to develop these rules was careful and deliberative,” Carper said of the regulations, including net neutrality, that Johnson focused on. The FCC “conducted a robust process to solicit input for its Open Internet Rule,” Carper said. “I think we can take comfort in knowing the process to develop them was thorough and thoughtful.”

Staffers for Johnson unveiled a report earlier this year on what they saw as many process failings in the net neutrality rulemaking, which they say was exacerbated by President Barack Obama’s direct request that the FCC reclassify broadband as a Communications Act Title II service (see 1603010066). May, in his testimony, pointed to other instances of White House recommendation, such as last week in the set-top box proceeding. “Repeated high-profile presidential interventions like this further undermine the notion that the FCC acts independently and free from executive branch control,” May said. Johnson confirmed a struggle in getting documents from the FCC as part of that process. “We have yet to get that draft Internet order,” Johnson said. “Regardless of what comes out of this, the APA is not functioning in the way it’s supposed to function,” said George Washington University Professor of Public Interest Law Jonathan Turley of that proceeding. He questioned a challenge on APA grounds in general as “truly a quixotic endeavor”: “If it wasn’t so sad, it would be a laughing matter.”

Some witnesses advocated that Congress tweak the Chevron doctrine, established in the 1984 Supreme Court ruling in Chevron U.S.A., Inc. v. Natural Resources Defense Council. Chevron allows an administrative agency leeway to interpret provisions of law that aren't specific if the agency's ruling isn't forbidden by the legislative language. GOP lawmakers pushed back against the Chevron defense to federal agencies last month, introducing legislation (see 1603170047). “Congress can take on Chevron,” Turley told senators. May said the doctrine shouldn't apply to independent agencies such as the FCC and advocated a smaller tweak from Congress to specify that. “The rationale would be these agencies are based on their expertise and not based on their deference to the administration,” May said. “How can federal agencies exercise authority to create laws broader than Congress could enact in a divided government?” asked Chamber of Commerce Senior Vice President-Environment, Technology and Regulatory Affairs William Kovacs. He called APA “the bible of the administrative state” and also criticized the process and compliance costs associated with the net neutrality order.

Public Citizen President Robert Weissman was the sole witness defending the net neutrality order’s merits and the process leading up to its adoption. “I think the benefits are enormous,” he told senators. “One may or may not like the outcome -- though the decision looks increasingly positive as time passes and promised harms do not materialize -- but it is hard to argue the agency did not thoroughly vet the issue and engage the public,” Weissman testified. He defended the Obama administration’s input and criticized the Independent Agency Regulatory Analysis Act (S-1607) that cleared the committee in October. That bill “would lead to more presidential influence over the FCC and other independent agencies rather than less,” he said, urging the lawmakers to withdraw their backing.

“What a fact-free waste of time, as Senator Johnson bemoaned agencies ignoring public comment while he himself ignores the millions of comments demanding Title II long before the president ever spoke up,” emailed Free Press Policy Director Matt Wood, who attended the hearing but didn’t testify. “Not to mention the incessant repetition -- by majority party Senators and tired witnesses alike -- of the utility and investment and solution in search of a problem myths that Free Press has debunked dozens of times.”