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One Enlightened Statesman: Sen. Rand Paul Pauses TSCA Bill

Three cheers to Senator Rand Paul for actually caring enough to read legislation before voting on its passage. Last week, he held up legislation that will vastly expand the Environmental Protection Agency’s power to regulate chemicals. As I pointed out recently, this legislation to amend the federal Toxic Substances Control Act (TSCA) has been moving along without proper consideration from most members of Congress. In fact, rather than appoint a formal conference committee composed of legislators from both House and Senate, it appears that lawmakers largely let staff craft the compromise between the chambers. Those changes were all incorporated into the House bill, the Frank R. Lautenberg Chemical Safety for the 21st Century Act (H.R. 2576), for both chambers to consider.

On May 23, The House of Representatives quickly voted it through, with only twelve members voting nay—three Republicans (Ken Buck, Colo, 4th; John Duncan, Tenn., 2nd  and Tom McClintock Calif., 4th) and nine Democrats (Jared Huffman of Calif., 2nd; Jackie Speier, Calif., 14th; Zoe Lofgren Calif., 19th; Jan Schakowsky, Ill., 9th;  Chellie Pingree, Maine 1st;  John Sarbanes, Maryland., 3rd; Yvette Clarke, N.Y., 9th; Paul Tonko, N.Y., 20th; and Louise Slaughter, N.Y., 25th.).  You have to respect these members for being willing to go against the tide, even though they may each have had very different reasons for doing so. 

Members of Congress seem all to ready to blindly vote “yea” for such “popular” or “noncontroversial” legislation, acting more like sheep who follow the heard rather than enlightened lawmakers. Alas, James Madison was all to right when he explained in Federalist No. 10: “Enlightened statesmen will not always be at the helm.”

Rand Paul’s willingness to hold up this vote shows that there is at least one enlightened member who believes that lawmakers should read and digest the legislation they consider, and maybe even have a healthy debate. After Senator Inhofe proposed that there be three hours of debate and then a vote on the legislation, Paul objected. “One of the pledges I made to the people of Kentucky when I came here was that I would read the bills,” Paul explained on the Senate floor last Thursday (see page 3252 in the Congressional Record for May 26, 2016). 

Several Republican colleagues criticized Paul. The bill sponsor, Sen. David Vitter (R-La.), said that a final version had been available for a week for all members to read and that Paul’s objection was regrettable. Vitter argued on the Senate floor that members should feel comfortable about voting for this bill in part because all the interests worked so hard to get an agreement. He also argued that TSCA was an “old” law that somehow needed reform (I offer substantive arguments that suggest otherwise). He called on the “sheep” in Congress to follow the lead of all the lobbyists and bureaucrats with special interests in the bill:

The fact that we have a bill that has the Humane Society and the U.S. Chamber of Commerce both urging a “yes” vote tells you something. The fact that the bill is supported by the EPA, the chemical industry, many environmental stakeholders, and the trial lawyers tells you something about this bill.

But Paul’s objection and desire to take time to consider the bill is certainly more than reasonable. Three hours and a quick vote isn’t very much deliberation given the scope and complexity of this legislation.  It’s quite likely that most members have no idea what’s in the bill and will simply follow the heard and vote yea.

Paul noted that over two days he and his staff flagged numerous concerns of which many members are likely completely unware: “It involves new criminalization—new crimes that will be created at the Federal level. It includes preemption of States. It includes a new Federal regime which would basically supersede regulations—or lack of regulations—in Louisiana or Texas or Oklahoma,” he explained. But perhaps even more to the point, Paul noted: “Here is the whole problem: People are now saying ‘Please regulate us,’ and when they get overregulated, they say ‘Please stop overregulating us.’” 

In fact, the chemical industry has been pushing greater federal regulation with TSCA reform, hoping that empowering EPA and getting some limited preemption will ease state-level regulations. But it’s more likely that industry will simply face more federal regulations on top of state regulations. Zealous state bureaucrats will find ways to continually regulate the chemical industry and the feds will ratchet up action at that level as well. Then in a few years, chemical industry representatives will return to Capitol Hill complaining about over regulation!

The popularity or relatively “uncontroversial” nature of a bill should never be used as an excuse to rush it through the process. As I documented in a paper back in 2007, the Senate has passed very substantive environmental bills with very high margins of support, and in some cases didn’t even hold roll call votes. Yet later these popular laws became very controversial. Indeed, the Senate passed the Food Quality Protection Act unanimously on a voice vote, which as I noted in a prior post has proven to be a disaster. But rather than claim responsibility for it, members of Congress blamed EPA for poor implementation when, in reality, problems stemmed from the fact that few members had any idea about what was in the legislation when they voted it into law.

TSCA reform may not be terribly “controversial” right now, but members of Congress should at least bother to read it and try to understand its many complexities. Thank you Senator Paul for stepping away from the heard to at least try to understand the substance of this legislation.