H.R. 5226, Regulatory Integrity Act of 2016, as amended

H.R. 5226

Regulatory Integrity Act of 2016, as amended

Date
September 14, 2016 (114th Congress, 2nd Session)

Staff Contact
John Huston

Floor Situation

On­­­­ Wednesday, September 14, 2016, the House will begin consideration of H.R. 5226, Regulatory Integrity Act of 2016, under a rule. H.R. 5226 was introduced on May 13, 2016, by Rep. Tim Walberg (R-MI) and was referred to the Committee on Oversight and Government Reform, which ordered the bill reported, as amended, by voice vote on May 17, 2016. The House will consider Rules Committee Print 114-63, as substitute for H.R. 5226, as reported.

Bill Summary

H.R. 5226 would direct each federal agency to make information regarding their regulatory actions publicly available in a searchable format on Regulations.gov, or on the agency’s website. That information would have to include the date a regulation was considered, its current status, an estimate of when the regulation would be final, and a brief description of the regulation. In addition, agencies would be required to track the details of all public communications about pending regulatory actions. The bill prohibits agencies from lobbying or campaigning in support of proposed rules and establishes clear standards of what that type of activity would include.

Background

Congress, under its authority to direct and control the use and expenditure of the funds that it appropriates from the U.S. Treasury, has enacted several specific and express limitations on the expenditure of federal appropriations. Some of these restrictions and prohibitions apply specifically to using federal appropriations for what is generally called “lobbying” of the Congress (or in some cases other government officials).[1]

Although these restrictions exist in both federal statutory laws as well as in yearly appropriations riders, because of their precise language and the exceptions to the limitations, and because of recognized countervailing public interests and the necessities of efficient governmental functioning, such restrictions are interpreted in a narrow fashion. The restrictions on the use of federal funds to lobby the Congress have, for example, been consistently interpreted to allow direct communications from federal officers or employees to Congress with respect to legislation or appropriations in order to facilitate an open dialogue between the agencies, departments, and officials in the various branches of government with regard to the public business and public policy options.[2]

What may generally be prohibited by these various appropriations restrictions, however, are what are known as “grass roots” lobbying campaigns—where federal appropriations are used by an agency or federal officer to specifically urge the public to write or communicate with Congress to favor or oppose legislation. Although “grass roots” lobbying efforts may come within the appropriations restrictions, such limitations have generally been applied only to efforts which involve an explicit and clear request to contact a Member of Congress on pending legislation. General statements of support, promotion, or arguments in favor of or defending an Administration’s or agency’s policies, positions, and programs have generally been found to be a legitimate expenditure of federal funds and not a prohibited “grass roots” lobbying campaign (when not involving an express or clear solicitation or urging of the public to communicate with Congress on pending legislation).[3]

Similarly, an agency may engage in informational activities directed at the public or Congress when there is a reasonable connection with the official duties of the agency, and such activity would not be an unauthorized “publicity and propaganda campaign” when it does not involve excessive “puffing” or self-aggrandizement of an agency’s importance; covert or secret communications to the public where the government as the source of the material is hidden; or purely partisan political messages unconnected to an agency’s official functions.[4]

According to the New York Times, the Environmental Protection Agency (EPA) in late 2014 sponsored a drive on Facebook and Twitter to promote its proposed clean water rule in conjunction with the Sierra Club. At the same time, Organizing for Action, a grass-roots group with deep ties to Mr. Obama, was also pushing the rule. They urged the public to flood the agency with positive comments to counter opposition from farming and industry groups.”[5]

“The Justice Department, in a series of  has told federal agencies that they should not engage in substantial “grass-roots” lobbying, defined as “communications by executive officials directed to members of the public at large, or particular segments of the general public, intended to persuade them in turn to communicate with their elected representatives on some issue of concern to the executive.”

According to Rep. Dan Newhouse, “Federal agencies should not use taxpayer funds to promote new rules and regulations against the very people that they are regulating. Congress already prohibits that practice annually, and the Regulatory Integrity Act will encourage transparency by creating an easily searchable database that the public can access to ensure agencies follow the law.”[6]

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[1] See CRS Report, “Lobbying Congress with Appropriated Funds: Restrictions on Federal Agencies and Officials,” August 13, 2015.
[2] Id.
[3] Id.
[4] Id.
[5] See New York Time Article, “Critics Hear E.P.A.’s Voice in ‘Public Comments’,” May 18, 2015.
[6] See Rep. Tim Walberg Press Release, “Walberg Introduces Bill to Prevent Rulemaking Misconduct by Government Agencies,” May 13, 2016.

Cost

The Congressional Budget Office (CBO) estimates that enacting H.R. 5226 would have no significant cost over the next five years. The bill could affect direct spending by agencies not funded though annual appropriations; therefore, pay-as-you-go procedures apply. CBO estimates, however, that any net increase in spending by those agencies would be negligible. Enacting H.R. 5226 would not affect revenues.

Amendments

  1. Charles Boustany (R-LA) – This amendment requires the results of a Regulatory Impact Analysis or a similar cost-benefit analysis, as well as the formula and data for the analysis to be included in the details disclosed by the agency on either regulations.gov or on the executive agency’s website.
  2. John Fleming (R-LA) – This amendment adds a requirement that proposed regulations that duplicate or overlap with other existing regulations must be disclosed.
  3. David McKinley (R-WV) – This amendment restricts employees or officers of an executive agency from using private email accounts when discussing a pending agency regulatory actions with the public.

Additional Information

For questions or further information please contact John Huston with the House Republican Policy Committee by email or at 6-5539.