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HEARING ON THE 

‘‘SEARCHING FOR AND CUTTING REGULATIONS 

THAT ARE UNNECESSARILY BURDENSOME 

(SCRUB) ACT OF 2014’’ 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

REGULATORY REFORM, 

COMMERCIAL AND ANTITRUST LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

FEBRUARY 11, 2014 

Serial No. 113–69 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON REGULATORY REFORM, COMMERCIAL AND ANTITRUST LAW

SPENCER BACHUS, Alabama, Chairman 

BLAKE FARENTHOLD, Texas, Vice-Chairman 

DARRELL E. ISSA, California 

TOM MARINO, Pennsylvania 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

JASON T. SMITH, Missouri 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

DANIEL FLORES, Chief Counsel 

JAMES PARK, Minority Counsel 
(III) 

C O N T E N T S 

FEBRUARY 11, 2014 

Page 

OPENING STATEMENTS 

The Honorable Spencer Bachus, a Representative in Congress from the State 

of Alabama, and Chairman, Subcommittee on Regulatory Reform, Commercial and Antitrust Law ........................................................................................ 1 

The Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress 

from the State of Georgia, and Ranking Member, Subcommittee on Regulatory Reform, Commercial and Antitrust Law ................................................. 39 

The Honorable Jason Smith, a Representative in Congress from the State 

of Missouri, and Member, Subcommittee on Regulatory Reform, Commercial 

and Antitrust Law ............................................................................................... 40 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 41 

WITNESSES 

Patrick McLaughlin, Ph.D., Senior Research Fellow, Mercatus Center, George 

Mason University 

Oral Testimony ..................................................................................................... 61 

Prepared Statement ............................................................................................. 64 

Sam Batkins, Director of Regulatory Policy, American Action Forum 

Oral Testimony ..................................................................................................... 78 

Prepared Statement ............................................................................................. 80 

Ronald M. Levin, Professor, William R. Orthwein Distinguished Professor 

of Law, Washington University School of Law 

Oral Testimony ..................................................................................................... 89 

Prepared Statement ............................................................................................. 91 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Discussion Draft of H.R. lll, the ‘‘Searching for and Cutting Regulations 

that are Unnecessarily Burdensome (SCRUB) Act of 2014’’ ............................ 3 

Material submitted by the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 43 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 58 

Material submitted by the Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress from the State of Georgia, and Ranking Member, 

Subcommittee on Regulatory Reform, Commercial and Antitrust Law .......... 118 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Bob Goodlatte, a Representative in 

Congress from the State of Virginia, and Chairman, Committee on the 

Judiciary ............................................................................................................... 123 
Page

IV 

Response to Questions for the Record from Patrick McLaughlin, Ph.D., Senior 

Research Fellow, Mercatus Center, George Mason University ........................ 125 

Response to Questions for the Record from Sam Batkins, Director of Regulatory Policy, American Action Forum ............................................................... 133 

Response to Questions for the Record from Ronald M. Levin, Professor, William R. Orthwein Distinguished Professor of Law, Washington University 

School of Law ........................................................................................................ 138 
(1) 

HEARING ON THE 

‘‘SEARCHING FOR AND CUTTING 

REGULATIONS THAT ARE UNNECESSARILY 

BURDENSOME (SCRUB) ACT OF 2014’’ 

TUESDAY, FEBRUARY 11, 2014 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON REGULATORY REFORM, COMMERCIAL AND ANTITRUST LAW

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 1:03 p.m., in room 

2141, Rayburn Office Building, the Honorable Spencer Bachus 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Bachus, Goodlatte, Farenthold, Issa, 

Marino, Holding, Collins, Smith of Missouri, Johnson, Conyers, 

DelBene, Garcia, Jeffries, and Cicilline. 

Staff present: (Majority) Daniel Flores, Subcommittee Chief 

Counsel; Ashley Lewis, Clerk; Justin Sok, Legislative Assistant for 

Rep. Smith of Missouri; Philip Swartzfager, Legislative Director for 

Rep. Bachus; Jonathan Nabavi, Legislative Director for Rep. Holding; Mike Geiselhart, Intern; (Minority) Perry Apelbaum, Staff Director & Chief Counsel; Susan Jensen, Counsel; Slade Bond, Counsel for Rep. Johnson; and Rosalind Jackson, Professional Staff 

Member. 

Mr. BACHUS. The Subcommittee on Regulatory Reform, Commercial and Antitrust Law hearing will come to order. 

Without objection, the Chair is authorized to declare recesses of 

the Committee at any time. 

Our Subcommittee hearing today is being held to examine old 

and outdated Federal regulations that are a barrier to the new job 

creation that we so badly need in our country. Let me commend 

Congressman Jason Smith from Missouri for the work he has been 

doing on this issue and for legislation he will soon be introducing, 

The Searching for and Cutting Regulations that are Unnecessarily 

Burdensome Act of 2014, for short, the SCRUB Act. 

This Subcommittee has heard testimony which has made a compelling case that Federal agencies do not properly account for input 

from small businesses and too often ignore the cost associated with 

new regulations. 

Today we consider an even larger problem. What happens to all 

those regulations passed long ago that no longer serve a useful pur-
2 

pose or no longer provide a benefit? Ronald Reagan once said nothing lasts longer than a temporary Federal program. He could have 

added Federal regulations to that. Nothing lasts longer than Federal regulations. 

No one who has studied the regulatory structure in this country 

would dispute that there are a lot of outdated Federal regulations 

on the book that no longer pass a cost-benefit test and in some 

cases no longer make sense. Employers spend time, money, and resources complying with antiquated regulations that could be better 

spent on hiring more workers or reinvesting in their enterprises. 

The total Federal regulatory burden has reached $1.75 trillion to 

$1.8 trillion by some estimates. If we remove just part of this burden, we would see immediate economic growth. 

The SCRUB Act establishes a systematic process for doing this. 

It would set up a BRAC-style commission to identify regulations 

that have been rendered obsolete by technology and the markets, 

that have achieved their goals, or that are duplicative or conflict 

with other Federal regulations. The commission’s recommendations 

to eliminate those unnecessary regulations would have to be implemented by agencies unless disapproved by a joint resolution of Congress. 

There is a role for Federal regulations that provides reasonable 

and clear rules of the road for businesses that provide benefits to 

the public that are greater than the costs. But we should acknowledge the unneeded burden that redundant and obsolete regulations 

place on job creation and our economy. 

Accordingly, I look forward to today’s testimony. 

At this time, I will recognize our new Ranking Member, Hank 

Johnson of Georgia, for his opening statement. We would like to 

say welcome as the new Subcommittee Chair to your position. So 

you are recognized for your opening statement, Mr. Johnson. 

[Discussion Draft of H.R. lll, the ‘‘Searching for and Cutting 

Regulations that are Unnecessarily Burdensome (SCRUB) Act of 

2014’’3 follows:] 
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Mr. JOHNSON. Thank you, Mr. Chairman. 

I am a little hesitant today because I have been informed that 

earlier this morning a gentleman was sitting in this chair, and the 

gentleman was operating this microphone and in doing so, he sustained a shock. And so I am deeply concerned that I may not survive this hearing. 

Mr. BACHUS. We have learned since then that he rests in peace. 

[Laughter.] 

Mr. JOHNSON. Well, I am hopeful that you all are praying for my 

salvation. 

But I am pleased to now serve as the Ranking Member on the 

Subcommittee on Regulatory Reform, Commercial and Antitrust 

Law. As the former Chairman of the Antitrust Subcommittee, I 

know that it has a particularly exciting range of issues, many of 

which should provide a pathway to work cooperatively across the 

aisle. That is why I am particularly disappointed with the process 

and substance of today’s hearing, which is my first as Ranking 

Member. 

Regarding process, although today’s hearing is intended to be a 

legislative hearing, we did not receive a copy of the draft legislation 

until Friday afternoon and did not receive a final version of the bill 

until yesterday evening. This is obviously problematic. It not only 

affects our ability to adequately prepare for the hearing, but also 

the ability of our witnesses to carefully analyze the legislation and 

draft their testimony under severe time constraints. 

As to substance, it had been my hope that the subject matter of 

this hearing would have better linked itself to a more collaborative 

effort. I think all would agree that retrospective review is a good 

idea. There is no doubt that out-of-date, redundant, and conflicting 

rules should be eliminated. In fact, President Obama, in recognition of the value of retrospective review, issued a series of executive orders requiring agencies to effectuate review plans, a process 

that is now in effect. This process is in addition to the self-initiated 

reviews that many agencies conduct, as well as the reviews conducted pursuant to the Regulatory Flexibility Act. 

Unfortunately, the so-called SCRUB Act, which is the subject of 

today’s hearing, appears to be a one-way ratchet with the sole aim 

of prioritizing costs over benefits. The measure fails to give agencies the necessary resources and guidance so that they will do an 

even better job of conducting retrospective review. 

Even more problematic is the fact that the SCRUB Act may very 

well be plainly unconstitutional. As Professor Levin explains in his 

prepared testimony, the commission, as established by this legislation, is given comprehensive authority to take actions that would 

have the force of law even though its members are not presidential 

appointees subject to Senate confirmation. I do not believe Professor Levin has reached this conclusion without careful reflection, 

and I encourage him to focus upon that issue in his oral testimony. 

Compounding the problem is the fact that the bill uses undefined 

terms that are inherently subjective in nature, such as, ‘‘excessive 

compliance cost,’’ and ‘‘excessively burdensome.’’ Clearly ‘‘excessive’’ 

can be a matter of opinion depending on which perspective one 

views the issue, such as regulations that save lives but impose certain compliance costs. As a result of these and other serious flaws 
40 

with this legislation, it is clear that the SCRUB Act is yet another 

shortsighted anti-regulatory measure that has no hope of becoming 

law. 

But I do have hope that I will survive this hearing, and I hope 

that during this time that Chairman Bachus and I are working together on this Subcommittee, that we will be able to find common 

ground on process and substance. As we begin this new session of 

Congress, I very much look forward to working with you, Mr. 

Chairman. 

And I yield back. 

Mr. BACHUS. Thank you. 

Mr. Johnson, we did have a very good meeting earlier today, and 

I think we mutually pledged to try to work cooperatively together 

and try to find consensus on the issues. And I appreciate your spirit of cooperation that you have shown in the past. 

And I will say to you that this bill, in its preparation, did come 

late, and I think there was some, obviously, limited time that you 

had to review it, and I concede that to you. In the future, we will 

work together to see that that is not the norm but that is the exception. 

Mr. JOHNSON. Would the gentleman yield? 

Mr. BACHUS. Yes. 

Mr. JOHNSON. I might add, Mr. Chairman, that I have such great 

respect and admiration for you. You have been a vocal supporter 

of civil rights, being an initial cosponsor of the Voting Rights 

Amendments Act. This kind of conduct that you have exemplified 

throughout your years in Congress is a hallmark of civility. And so 

I have no doubt that whatever happened this past week is something that happened, but we are going to proceed on from here. 

And so I look forward to serving with you, and I think everything 

is going to be okay if I survive this hearing. 

Mr. BACHUS. Thank you. We will try, make every effort to get 

you through this hearing. And I appreciate your words. 

With that, I would like to recognize the sponsor of this legislation, Mr. Jason Smith of Missouri, for an opening statement. 

Mr. SMITH OF MISSOURI. Mr. Chairman, thank you for holding 

this hearing. Much appreciated. 

As the former Chairman of the Joint Committee on Administrative Rules back in the Missouri House, which I served just over 8 

months ago, I have some experience working to reduce the regulatory burden facing families, small business owners, and farmers. 

In 2012, while serving in the Missouri House of Representatives, 

I worked to pass House bill 1135, which requires that all State 

rules and regulations be reviewed every 5 years. Like the bill we 

are discussing today, House bill 1135 required that rules be examined under various criteria to determine if, among other things, 

they were effective, obsolete, or duplicated. 

The Federal Government could learn a thing or two from what 

we have accomplished in the State of Missouri. It was Missouri’s 

over 6,000 State regulations that led me to believe that reform was 

necessary. In the Code of Federal Regulations, there are over 

174,000 pages of rules and regulations. During my short time in 

Congress, I have been amazed by the broad Federal authority 

agencies have to write numerous new regulations. Worse yet, Con-
41 

gress and the American public have very little oversight and authority over agencies’ rulemaking process. 

The Searching for and Cutting Regulations that are Unnecessarily Burdensome Act of 2014, or SCRUB Act, creates a bipartisan 

commission to examine Federal rules and regulations that merit repeal and amendment to reduce unnecessary cost burdens for American citizens. In addition, it requires an automatic review on all 

new rules after 10 years and creates a cut-go procedure whereby 

agencies need to repeal old regulations before they can issue new 

ones absent congressional consent. 

I look forward to hearing from the witnesses and other Members 

about ways to really tackle regulation reform and invite input on 

a way to move forward. 

Thank you, Mr. Chairman, for this opportunity today to discuss 

this legislation. 

Mr. BACHUS. Thank you, Mr. Smith. 

I would now like to recognize the full Committee Ranking Member, Mr. John Conyers of Michigan, for his opening statement and 

also warn you that we are getting shocks from some of these mics. 

[Laughter.] 

Mr. CONYERS. Well, thank you very much, Chairman Bachus. 

I am here to participate with a question. Why do we not have 

a bill instead of a discussion draft with these distinguished witnesses who are here? 

Mr. BACHUS. That is a good question, a valid question. It is my 

understanding that in introducing the bill, there were some—as my 

able counsel advised me, we had already sent the witnesses notice 

when we realized that we were not going to be assigned a bill number, but actually the draft before you is the bill in its final form. 

It does not have a number. And I am not sure that I can give you 

an explanation of that, John. I am not going to give you an incorrect. 

As I told Mr. Johnson in response to his statement, that is an 

anomaly and we will try not to repeat that in the future. 

Mr. CONYERS. Thank you, Mr. Chairman. 

Can you, Mr. Bachus, indicate to me when the bill will be 

dropped and we will be able to compare the discussion draft with 

the actual legislation? 

Mr. BACHUS. Yes. My understanding is this is the bill in the final 

form. But, Mr. Smith, could—— 

Mr. CONYERS. I will yield to Mr. Smith. 

Mr. SMITH OF MISSOURI. You know, this appears to be the bill 

in the final form. One of the purposes of a draft legislation is I 

want some true bipartisan regulation reform, and this is a way to 

start. If you all have suggestions on how to move this forward to 

actually do some substantial reform, this is the way that we can 

make the changes. 

Mr. CONYERS. Well, when will the bill be introduced? 

Mr. SMITH OF MISSOURI. Well, right now, I would say as soon as 

possible, but we have been working on this for some time. 

Mr. BACHUS. I would say this. By the time we reconvene, after 

today, our next legislative session, which is about 10 or 12 days 

away, assuming that we address our debt ceiling today, which I am 
42 

assuming we will, when we return, we should have the bill in final 

form. 

Mr. CONYERS. Thank you very much. 

I would like to ask unanimous consent to introduce two of President Obama’s—well, actually three executive orders. Yes, I have 

three executive orders outlining steps that Federal agencies must 

take to formulate plans for retrospective review of their regulations 

on an ongoing basis. 

Mr. BACHUS. Without objection. 

[The information referred to follows:] 
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Mr. CONYERS. And in compliance with these directives, executive 

agencies and various independent regulatory agencies have submitted retrospective review plans. All together, these plans have 

identified numerous ways to reduce redundancy and inconsistency 

among existing regulations. 

As the Coalition for Sensible Safeguards notes, the commission 

would itself be redundant and duplicative in light of the President’s 

executive orders. It should be noted that this process comes in addition to the ongoing retrospective review efforts that agencies have 

been undertaking even before the issuance of these executive orders. 

As the Government Accountability Office reported in 2007, agencies routinely conduct these often at their own initiative, and to 

that end, the GAO has made several recommendations to improve 

that process, which would have been a good starting place for any 

analysis. 

Unfortunately, we have a one-sided, unbalanced approach that 

has been alluded to by the Ranking Member from Georgia on this 

Subcommittee, Hank Johnson. As a threshold matter, the commission is plainly unconstitutional, as will be explained very shortly, 

because it empowers the commission to take actions that would 

have the force of law in violation of the Constitution’s Appointment 

Clause. And I will let him handle that from there. 

Virtually all of the bill’s objectives have this one-way approach. 

It is a measure designed to result in the repeal or amendment of 

a rule only to eliminate or reduce costs. In contrast, the bill does 

not do anything—very little or nothing—to promote actions that 

would enhance the benefits of rules. 

Another point that I might want to make is that the commission 

members, other than the chair, would not be required to have any 

expertise in either administrative law matters or the subject matter of the rules that they consider. Notwithstanding that fact, the 

commission would be empowered to second guess Congress with respect to the need for certain rules, as well as the agencies with respect to the science and analysis warranting such rule. 

And the most grievous part of the bill is the so-called cut-go offsetting provisions, which comes into play even if Congress enacted 

a joint resolution to disapprove the commission’s report. 

Now, after all of that, I am amazed that we are here today. I can 

sympathize with the Chairman of this Subcommittee, as does the 

Ranking Member, because he is held in high esteem by his colleagues on both sides of the aisle. But this legislation; this provisional draft is hardly a way for us to start an important hearing 

like this. 

And I submit the rest of my statement and I yield back the balance of my time. 

[The information referred to follows:] 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary 

In principle, retrospective review of existing regulations is not a bad idea. It is 

hard to argue against the notion that agencies should periodically assess whether 

the rules they have promulgated are as good as they can be or whether they are 

even necessary in light of changed circumstances. 
59 

Nonetheless, there are certain considerations that we must keep in mind as we 

proceed with today’s hearing. 

To begin with, President Obama has already taken a series of significant steps 

towards instituting regular retrospective reviews by agencies. 

To date, he has issued two Executive Orders outlining steps that federal agencies 

must take to formulate plans for retrospective review of their regulations on an ongoing basis. 

And, he has issued a third Executive Order encouraging independent regulatory 

agencies to take similar steps to plan for ongoing retrospective reviews of their 

rules. 

In compliance with these directives, executive agencies and various independent 

regulatory agencies have submitted retrospective review plans. 

Altogether, these plans have identified numerous ways to reduce redundancy and 

inconsistency among existing regulations. 

As the Coalition for Sensible Safeguards notes, the Commission would itself be 

redundant and duplicative’’ in light of the President’s executive orders. 

It should be noted that this process comes in addition to the ongoing retrospective 

review efforts that agencies have been undertaking even before the issuance of these 

executive orders. 

As the Government Accountability Office reported in 2007, agencies routinely conduct these, often at their own initiative. To that end, the GAO made several recommendations to improve that process, which would have been a good starting place 

for any analysis. 

Accordingly, I see no reason for Congress to jump the gun in seeking to mandate 

retrospective review legislatively. 

At the minimum, before Congress considers imposing a legislative mandate regarding retrospective review, it should ensure that the President’s efforts have been 

thoroughly evaluated and have had a chance to fully take root. 

Turning to the so-called SCRUB Act, it has numerous flaws. 

As a threshold matter, the Commission is ‘‘plainly unconstitutional,’’ as Professor 

Levin explains in his prepared testimony. The legislation empowers the Commission 

to take actions that would have the force of law in violation of the Constitution’s 

Appointments Clause. 

Second, the bill unfortunately reflects a one-sided, unbalanced approach to retrospective review. 

For example, virtually all of the bill’s objectives and mechanisms are a ‘‘one-way’’ 

ratchet. The measure is designed to result in the repeal or amendment of a rule 

only to eliminate or reduce costs. 

In contrast, the bill does absolutely nothing to promote actions that would enhance the benefits of rules. 

Another problem with the bill is that the Commission members—other than the 

Commission chair—would not be required to have any expertise in either administrative law matters or the subject matter of the rules that they consider. 

Notwithstanding that fact, the Commission would be empowered to second guess 

Congress with respect to the need for certain rules as well as the agencies with respect to the science and analysis warranting such rules. 

Worse yet, the bill’s so-called ‘‘cut-go’’ offsetting provisions would come into play 

even if Congress enacted a joint resolution to disapprove the Commission’s report. 

Finally, we must acknowledge what the real intent of this legislation is. 

This is yet another attempt to hobble the ability of agencies to regulate and thereby prevent them from protecting public health and safety based on unsubstantiated 

rhetoric that regulations inhibit economic development. 

Just yesterday, our Republican colleague, Bill Shuster, tweeted: ‘‘As Americans, 

we should all feel safe to drink the water that comes out of our faucets.’’ 

Right now, do the citizens of West Virginia and North Carolina feel it is safe to 

drink their water? 

Did the contamination result from too much regulation? 

What balance should be struck between preventing carcinogens from appearing in 

our Nation’s water supply and the cost of regulatory compliance? 

Do we want an unelected group of Commissioners to second guess the legislative 

priorities of Congress and the scientific expertise of agencies when it comes to safe 

drinking water standards? 

These are just some of the major concerns that I have about this legislation. 

Mr. BACHUS. I thank you, Mr. Chairman—Mr. Ranking Member, 

who I still call ‘‘Mr. Chairman’’ when I served under you. 
60 

We have a very distinguished panel today. I would like to introduce the witnesses. Dr. Patrick McLaughlin is Senior Research Fellow at the Mercatus Center at George Mason University. His research focuses on regulations and the regulatory process, with additional interest in environmental economics, international trade, 

industrial organization, and transportation economics. His research 

and opinions are regularly published. 

Prior to joining Mercatus, Dr. McLaughlin served as Senior Economist at the Federal Railroad Administration in the United States 

Department of the Transportation. As a former railroad attorney in 

Congress, you know, railroads is probably my favorite subject. I 

have followed your work there and appreciate your work in the 

field of railroad transportation. Very few people understand the 

railroads, understand the tremendous economic benefit they bring. 

They really keep our economy rolling, and they are one of the least 

understood modes of transportation. I still get questions all the 

time by people saying do the passenger trains and the freight 

trains run on the same line. Normally the answer is yes, but sometimes it is no. 

Dr. McLaughlin has published in the fields of law and economics, 

public choice, environmental economics, and international trade. 

He holds a Ph.D. in economics from Clemson University. So thank 

you. 

Mr. Sam Batkins is Director of Regulatory Policy at the American Action Forum. Mr. Batkins’ research focuses on the rulemaking efforts of administrative agencies and the related efforts of 

Congress. His work has appeared in the ‘‘Wall Street Journal,’’ the 

‘‘New York Times,’’ ‘‘The Hill,’’ ‘‘National Review Online,’’ ‘‘Reuters,’’ and the ‘‘Washington Post,’’ among other publications. In 

fact, you just recently published a study that has drawn quite a lot 

of publicity, and there are some rather important findings. 

Prior to joining the Forum, Mr. Batkins worked at the U.S. 

Chamber of Commerce, Institute of Legal Reform, and the National 

Taxpayers Union. At the U.S. Chamber, he focused on lawsuit 

abuse, tort reform, and Federal regulation. At the National Taxpayers Union, he focused on State and Federal spending. 

Mr. Batkins received his B.A. in political science summa cum 

laude from Sewanee University of the South. He received his J.D. 

from Catholic University of America, Columbus School of Law. And 

we welcome you before our Committee. 

Mr. Ronald Levin, who has testified before our Committee on 

several occasions, is the William R. Orthwein Distinguished Professor of Law at Washington University in St. Louis. He is co-author of a case book, State and Federal Administrative Law. 

Professor Levin has chaired the section of administrative law and 

regulatory practice of the American Bar Association, a group to 

which he is still an active member. He served as the ABA’s advisor 

to the drafting committee to revise the Model State Administrative 

Procedure Act. 

Professor Levin also serves as a public member of the Administrative Conference of the United States and the chair of its Judicial 

Review Committee. 
61 

Professor Levin clerked for the Honorable John Godbold of the 

U.S. Court of Appeals for the Fifth Circuit and practiced with the 

Washington, D.C. firm of Sutherland, Asbill and Brennan. 

He received his B.A. from Yale and his J.D. from the University 

of Chicago, quite a distinguished academic institution. 

And that was with the Fifth Circuit in New Orleans? 

Mr. LEVIN. It is now, but at the time—— 

Mr. BACHUS. It was in Atlanta? 

Mr. LEVIN. So the situation is that the Fifth Circuit was broken 

into two. So at the time of my clerkship, Judge Godbold was on the 

Fifth Circuit. Then after the break, he was on the Eleventh Circuit, 

so he was the only judge who has ever been chief judge of two circuits. 

Mr. BACHUS. So he is in Atlanta now. 

Mr. LEVIN. At that time, his chambers were in Montgomery. The 

base was New Orleans. 

Mr. BACHUS. Thank you. I knew, obviously, he is a very distinguished jurist. 

We will now proceed under the 5-minute rule with questions. 

And I am going to recognize Mr. Smith for 5 minutes, if you are 

ready to proceed. I should have given you some warning. 

Mr. SMITH OF MISSOURI. Are they going to testify first? 

Mr. BACHUS. That is what Barney Frank used to do all the time. 

Now I am doing it. I guess it must catch. I cannot believe I did 

that. 

Yes. Mr. McLaughlin, if you can begin your testimony. I will 

have to quit following this script. 

TESTIMONY PATRICK McLAUGHLIN, Ph.D., SENIOR RESEARCH 

FELLOW, MERCATUS CENTER, GEORGE MASON UNIVERSITY 

Mr. MCLAUGHLIN. Thank you. Chairman Bachus, Ranking Member Johnson, and Members of the Committee, thank you for inviting me. As an economist and senior research fellow at the Mercatus 

Center at George Mason University, my primary research focuses 

on regulatory accumulation and the regulatory process. So it is my 

pleasure to testify on today’s topic. 

The accumulated stock of regulations almost certainly contains a 

multitude of unnecessary burdens. As the title of the discussed legislation implies, the current regulatory system makes it difficult to 

identify and eliminate such unnecessary burdens. 

Our goal here today should be to ascertain whether the SCRUB 

Act would succeed where previous efforts have failed. 

To that end, first I will discuss why regulatory accumulation is 

a problem, which is primarily that it creates substantial drag on 

economic growth. 

Second, I will discuss the search for obsolete, unnecessary, duplicative, or otherwise non-functional regulations covering both why 

similar searches in the past have failed and what could be done differently to increase the odds of success. In my estimation, an independent commission, as opposed to regulatory agencies, is required 

to successfully identify non-functional rules. 

Third, I will address the difficulties of eliminating non-functional 

rules once identified. Here I point to the wisdom of the crafters of 

the BRAC process. 
62 

Finally, I will cover specific recommendations for effectively reducing the problem of regulatory accumulation, recommendations 

that are directly relevant to the SCRUB Act. 

By design, regulations restrict choices. These restrictions have 

accumulated for decades, exceeding 1 million by the year 2010. 

This accretion of restrictions is what I refer to as regulatory accumulation. Regulatory accumulation inhibits innovation. And I am 

not just talking about business ideas that would create new products and jobs. Would-be entrepreneurs are sometimes prohibited 

from pursuing ideas that could improve the environment and consumers’ quality of life. My written testimony gives a couple realworld examples of how regulations can actually deter environmental stewardship and prevent companies from implementing potentially lifesaving technologies, which I would be happy to discuss. 

Through lost innovation and entrepreneurship, regulatory accumulation negatively affects economic growth. An academic study 

found that between 1949 and 2005, the accumulation of Federal 

regulations has slowed economic growth by an average of 2 percent 

per year. Over a 57-year period, that adds up to about $277,000 in 

lost annual income per household. 

So how can we fix the regulatory accumulation problem? The solution boils down to two elements. First, we must identify non-functional rules. Second, once identified, non-functional rules should be 

eliminated or modified. In my written testimony, I have identified 

11 elements that my research with my colleague, Richard Williams, 

identifies as characteristics of successful regulatory reform. I want 

to highlight just three. 

First, the process should entail independent assessment of regulations. Independence is crucial. Our study documents attempts by 

every Administration since Reagan’s to address regulatory accumulation. Those attempts share at least two characteristics. 

Each of them relied, at least partially, on agencies to assess their 

own stocks of regulations, and each of them failed in substantively 

changing the stock of regulations or the ongoing accumulative process. If the reasons for these efforts’ limited success is the reliance 

on agency self-assessment, then an independent commission could 

be a better alternative. 

Second, the process should use a standard method of assessment, 

and that method should include a focus on whether and how rules 

lead to the outcomes desired. There is a difference between outcomes and outputs. A rule may lead to an increase in an output 

such as increased safety inspections, but that does not guarantee 

that there has been an increase in the outcome, safety. The assessment of rules should focus on outcomes. 

Third, congressional action, such as a joint resolution of disapproval, should be required in order to stop the commission’s recommendations. I previously mentioned the wisdom of the crafters 

of the BRAC process. Legislation addressing regulatory accumulation must overcome similar obstacles as the BRAC process did. One 

of those is the possibility of congressional inaction. In order to stop 

the recommendations put forth by the BRAC commission, the 

BRAC process required Congress to pass a joint resolution of disapproval. In other words, even if Congress did nothing, the default 

was implementation of the recommendations. 
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These are three of the 11 elements that our research has identified as essential to success. 

Regulatory accumulation in the U.S., with its adverse impact on 

economic growth, is now a widely recognized problem. The problem 

has not been meaningfully addressed despite the efforts of several 

Administrations. My written testimony covers other essential elements that my research indicates are necessary, and I have highlighted just three now. 

I would be happy to answer any questions after this is finished. 

Thank you. 

[The prepared statement of Mr. McLaughlin follows:] 
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Mr. BACHUS. Thank you. Your opening statement was exactly 5 

minutes. 

Mr. MCLAUGHLIN. I had a little bit more. 

Mr. BACHUS. I do not think I have ever had a 5-minute opening 

statement right to the second. 

Mr. Batkins? And you do not have to be right at 5 minutes. 

Mr. BATKINS. I probably will not replicate that. 

Mr. BACHUS. No, no. I am not expecting to see that again this 

year. 

TESTIMONY OF SAM BATKINS, DIRECTOR OF 

REGULATORY POLICY, AMERICAN ACTION FORUM 

Mr. BATKINS. Thank you, Mr. Chairman, Ranking Member Johnson, and Members of the Subcommittee. Thank you for the opportunity to testify today and examine regulatory reform opportunities. 

I would like to start by highlighting the successes and struggles 

of President Obama’s current attempt at regulatory reform and the 

potential benefits of codifying retrospective review. 

First, when President Obama continued the strong tradition of 

ensuring that regulatory costs justify benefits, he called for a periodic review of existing significant regulations. President Obama 

and then-OIRA Administrator Cass Sunstein made a very public 

push to highlight some of the redundant and outmoded rules in our 

regulatory system, including the fabled ‘‘Spilled Milk’’ regulation. 

The Administration has release plans with hundreds of possible 

retrospective reviews, but upon closer scrutiny, it is clear that 

many of these measures are not regulatory look-backs and they do 

not streamline, expand, or repeal existing regulations. 

For example, the Department of Energy lists 19 rulemakings in 

its latest retrospective report. However, six of these are new energy 

efficiency standards that do not appear to revisit existing rules, but 

instead impose significant new costs. 

Likewise, Health and Human Services included at least nine Affordable Care Act regulations in its latest report. These measures 

did not look back at existing regulations or attempt to repeal certain regulatory provisions. Instead, they implemented the recent 

health care law. 

There have been successes in regulatory reform. The Department 

of Transportation plans to save the trucking industry $1.7 billion 

annually and cut the agency’s paperwork budget by 15 percent. 

Likewise, HHS finalized a rule to reduce procedural hurdles for 

hospitals and health care providers, saving approximately $900 

million annually. 

However, if we examine all retrospective reports and compare 

new rules that impose costs and compliance time to rules that actually look back to streamline or eliminate costs, the ratio is 3.7 to 

1 in favor of higher costs. For paperwork, the ratio is 6.7 to 1. In 

other words, retrospective reports contain more new rules with 

higher costs than regulatory look-backs with lower costs. 

Regulatory reform through executive order alone has not produced the desired results. During the past 10 years, the Nation’s 

cumulative paperwork burden has increased 28 percent, or 2.2 billion hours. In the equivalent amount of time, it would take 1.1 mil-
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lion new employees working 2,000 hours a year to complete these 

new requirements. 

Codifying retrospective review would submit more than 30 years 

of informal review into law. I believe legislation that addresses the 

Nation’s cumulative regulatory burden would have a variety of benefits. 

The Government Accountability Office, as we have noted here, 

has highlighted duplication in its annual report for the past few 

years. GAO found 17 areas of duplication, including veterans employment and renewable energy. We replicated GAO’s methodology 

for paperwork requirements and found 990 duplicative forms and 

more than 642 million paperwork burden hours. The regulatory 

cut-go provision in the proposed legislation would address this duplication by allowing agencies to choose from a range of past rules 

eligible for reform. To date, the U.S. has never had a formal system 

to address regulatory duplication, but if the commission is successful, it could identify hundreds of past rules in need of reform. 

To some extent, the U.S. is behind the curve on regulatory reform. The United Kingdom has a system to remove two regulations 

for every new rule. Closer to home, Indiana has codified retrospective review for regulations 3 years after implementation. The proposed legislation actually provides agencies with some deal of flexibility compared to the British one-in/two-out system. 

Perhaps most importantly, the proposed bill would extend some 

level of OIRA review to independent agencies, the same regulatory 

bodies that govern our telecommunications and financial system. 

During the past 2 years, financial regulators have produced more 

than 113 regulations with quantifiable burdens with little executive oversight. As the Administrative Conference of the United 

States has noted, it is past time for heightened regulatory scrutiny 

of independent agencies. 

In conclusion, I would like to emphasize that retrospective review 

dates back to the Carter administration and is by no means a radical step. It is simply implementing best practices. 

Thank you for your time, and I look forward to answering questions. 

[The prepared statement of Mr. Batkins follows:] 
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Mr. BACHUS. Thank you. 

Professor Levin, you are recognized. 

TESTIMONY OF RONALD M. LEVIN, PROFESSOR, WILLIAM R. 

ORTHWEIN DISTINGUISHED PROFESSOR OF LAW, WASHINGTON UNIVERSITY SCHOOL OF LAW 

Mr. LEVIN. Yes, Mr. Chairman. I apologize for arriving a few moments late. 

Mr. BACHUS. You actually arrived fine. 

Mr. LEVIN. Okay, that is good. 

Chairman Bachus, Ranking Member Johnson, and Members of 

the Subcommittee, thank you for inviting me to testify on retrospective review today. I did testify on general principles in this 

area in 2012 before you. It is a privilege to return to the subject 

in the context of a specific bill. 

As we all know, the regulatory system already has a number of 

methods of inducing agencies to do more look-back review, and 

they include some statutes, presidential initiatives like the one 

President Obama pursued, congressional oversight, and the ability 

of anyone to file a petition for revision or repeal of a regulation and 

get an answer from the agency and potentially get judicial review. 

The question is whether we need to supplement these systems 

with a new mechanism. 

I think the case for doing that has been overstated. We should 

not equate the growth of regulations with the growth of unnecessary regulations. Many of them are directly contemplated by legislation and confer enormous benefits on society, such as safe skies, 

clean air, safe workplaces, and a sound banking system. It is often 

the absence of regulations that causes harm to our economy and society. 

But we can agree that some rules are obsolete and ineffective or 

cause unwanted side effects, and I would not rule out the possibility that some new structure could be helpful. But the one contemplated by the SCRUB Act is not it, in my judgment. 

In the first place, the commission that it would establish does not 

comply with the Appointments Clause of the Constitution. Most of 

its members would be appointed by House and Senate leaders of 

the majority and minority parties. A group like that can recommend, but it cannot itself exercise significant authority under 

the laws of the United States. The Supreme Court established this 

in Buckley against Valeo in 1976. I know Representative Johnson 

asked me to elaborate, but really, the law is clear and simple, and 

unfortunately, this bill is on the wrong side of it. 

But let us assume that you fix that defect and look at the bill’s 

policy implications. The commission would still not be a credible 

authority because most of its members would not need to be experts in anything, and they could not possibly be experts in all the 

areas that they would have power to affect and that power would 

be breathtaking. They could order the elimination or amendment 

of any rule of any agency that they consider unnecessarily burdensome, and they could use any methodology they want. Even soothsayers or astrological charts would do under the bill. And nobody 

could prevent their decisions from going into effect, not the courts 

presumably, not the agency. OIRA and the White House would 
90 

have no review. And even if Congress passes a disapproval resolution with the House, the Senate agreeing, with the President signing, the commission’s decisions would still be merely postponed, not 

canceled. And if all that is not far-fetched enough, a minority of the 

commission, outvoted, could wield these same powers. In Justice 

Cardozo’s phrase, this is delegation run riot. 

Then the bill provides for a cut-go process in which an agency 

cannot adopt a new rule without offsetting its cost with a rule from 

the commission’s list. The biggest problem with that is that the 

commission’s list itself would not be reliable, but also this process 

would complicate the process of rulemaking no matter how important or urgent the rule may be. 

And finally, the bill provides that every new rule, no matter how 

trivial, would have to be accompanied by a plan to reexamine it a 

decade hence. That is way overbroad for most rules. And even for 

important ones, it is premature to make a plan in 2014 for how you 

are going to reexamine it in 2024 when you cannot foresee what 

the situation a decade from now would be. 

So I really think that the Subcommittee needs to take a pause 

in this area. The best thing it could do would be to wait for the 

forthcoming recommendations of the Administrative Conference, 

which is now launching a study, of retrospective review, to be finished by the end of the year. See what proposals they make. But 

if the Subcommittee does decide to go forward with this bill, the 

bill will need a thorough and fundamental scrubbing. 

That concludes my statement, and I will be happy to take your 

questions. 

[The prepared statement of Mr. Levin follows:] 
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Mr. BACHUS. Thank you, Professor. 

I will recognize myself for 5 minutes for questions. 

The Ranking Member talked about the Administration’s efforts 

to identify regulations that could be either eliminated or amended. 

I will ask each of you. How does the SCRUB Act compare to other 

executive branch and legislative proposals that have been brought 

forth in the past? I will start with you, Dr. McLaughlin. 

Mr. MCLAUGHLIN. I think the most fundamental difference is 

putting the responsibility for retrospective review in the hands of 

an independent commission as opposed to leaving it in the hands 

of the agencies who created the rules in the first place. And it is 

my opinion that that will improve the quality of assessment. To 

make a simplistic analogy here, I am a professor as well as a researcher, and if I let my students grade their own tests, I would 

expect on average their scores to be a lot higher than if an independent arbiter were to grade them and give an objective analysis. 

Mr. BACHUS. Mr. Batkins? 

Mr. BATKINS. I would agree with Mr. McLaughlin that there is, 

I think, a need for an independent look at retrospective review. 

And if you just look at all the data that we have compiled under 

Executive Order 13563, there are a few provisions that streamline, 

modify, reduce hours and costs, but on net, a majority of the provisions are actually new regulations that they are including in these 

retrospective reports. It is tough to tell the difference between a 

regular unified agenda of Federal regulations and a lot of these retrospective reports. Several agencies that were reviewed did not 

have a single measure that we found to actually look back at existing regulations. So I would agree that an outside voice is probably 

welcome. 

Mr. BACHUS. Could you give me some specifics on those agencies 

that you are talking about? 

Mr. BATKINS. Well, sir, I mentioned Health and Human Services. 

We counted, judging from the REN’s from their report, there were 

at least nine Affordable Care Act regulations that they plan to implement. And for example, the Department of Energy had several 

new efficiency standards for transformers, for metal halide lamp 

fixtures. And a lot of agencies will include basically a boilerplate 

that this rule was designed to minimize burdens consistent with 

Executive Order 13563, and that may be fine but you could have 

used the same minimize burdens/maximize net benefits under Executive Order 12866 or Executive Order 12044. So it was not necessarily a regulatory look-back as it was implementing a new rule 

and putting it in your retrospective report. 

Mr. BACHUS. Professor Levin? 

Mr. LEVIN. Well, I agree with Mr. McLaughlin that the biggest 

difference is that the SCRUB Act would put an independent body 

into control rather than the agency. But I think that is a vice and 

not a virtue. 

I think the better comparison would be if he asked me to grade 

his exams in his course when he is the one who runs the course, 

organizes it, and I am a complete outsider. 

The problem is that the agency has always been rightly considered to be the best entity to evaluate the rules. They have the expertise. That is why Congress created it in the first place, to bring 
106 

specialized experience to bear. They are the ones who understand 

the overall program and all the interconnections among the different parts of the program. And they are the ones who are politically accountable in the way that a commission would not be. So 

we agree on the difference, but we do not agree as to its merit. 

Mr. BACHUS. Are agencies really politically accountable for their 

actions? 

Mr. LEVIN. For sure. The executive agencies are accountable to 

the President. All agencies are accountable to Congress. They are 

accountable at the initiation stage. Congress can change their laws. 

They have oversight hearings, as you well know, and they are part 

of an Administration that usually is very cognizant of public opinion. 

Mr. BACHUS. Out of all the regulations that have been passed 

over the years, there has been one that has been repealed by Congress. Of course, you could look at that two different ways. One is 

that they have all been appropriate and another that Congress simply has lacked that because I think it is fair to say that there were 

probably in the universe of tens of thousands of regulations, there 

had to be hundreds, if not thousands, that were probably not well 

thought out. 

Mr. LEVIN. But it is not just the congressional review act that 

you should take into account. Authorizing legislation will sometimes have that effect. And informal contacts through the oversight 

process will often have that effect because agencies are dependent 

on Congress in so many ways. 

Mr. BACHUS. I think my time has expired. 

At this time, I recognize the Ranking Subcommittee Member. 

Mr. JOHNSON. Thank you. 

Dr. McLaughlin, the Mercatus Center is a 501(c)(3) nonprofit 

that does not receive support from George Mason University or any 

Federal or State or local government and only receives funding 

through donations from companies like the Koch brothers. Is that 

correct? 

Mr. MCLAUGHLIN. Our organization is funded by private donations. However, we have a strict firewall between fundraising and 

research. 

Mr. JOHNSON. No, no, no. 

Mr. MCLAUGHLIN. I am not familiar with the details of the fundraising. 

Mr. JOHNSON. But companies like Koch Industries or companies 

that would be contributors or funders of your efforts. Is that right? 

Mr. MCLAUGHLIN. Again, I am not familiar with the details of 

our fundraising. 

Mr. JOHNSON. Are you aware of the fact that the Mercatus Center moved to George Mason University after George Mason University accepted $30 million from the Koch brothers? 

Mr. MCLAUGHLIN. That was prior to my time working at the 

Mercatus Center. So I did not experience that, if that is what occurred. 

Again, what matters to me at least is that we have this firewall 

of separation between all of the fundraising and the research. My 

research is my own. It is not influenced or controlled by any donors. 
107 

Mr. JOHNSON. All right. Thank you, sir. 

And, Mr. Batkins, have you ever heard of the American Action 

Network? 

Mr. BATKINS. Pardon me? The American Action Forum. No. The 

American Action Forum is a 501(c)(3). Network is a separate organization with a separate board. 

Mr. JOHNSON. And it is a 501(c)(4). 

Mr. BATKINS. Correct. 

Mr. JOHNSON. And it is your sister organization. Correct? 

Mr. BATKINS. They have a separate board and a separate president. 

Mr. JOHNSON. But you are sister corporations basically. 

Mr. BATKINS. I rarely, if ever, have any interaction with the Network, and I focus purely on the policy analysis and regulatory policy, and I have never engaged in any political advocacy of the kind 

that the Network does engage in. 

Mr. JOHNSON. The Network and the Forum are housed in the 

same offices. You are basically sharing office space with Crossroads 

GPS and American Crossroads. Is that correct? 

Mr. BATKINS. That is not correct. American Crossroads, I believe, 

is off of New York Avenue and we are a few blocks away on Pennsylvania Avenue. 

Mr. JOHNSON. What about Crossroads? 

Mr. BATKINS. No. It is just the American Action Forum, the 

American Action Network. 

Mr. JOHNSON. So you do not share office space with Crossroads 

GPS? 

Mr. BATKINS. We do not. 

Mr. JOHNSON. Have you ever? 

Mr. BATKINS. During the formation of our organization in 2010, 

for a few months we did. 

Mr. JOHNSON. And Crossroads GPS/American Crossroads is, of 

course, tied to Karl Rove. 

Mr. BATKINS. That is my understanding, yes. 

Mr. JOHNSON. Is the Forum or the Network still tied to Karl 

Rove? 

Mr. BATKINS. No. That is a completely separate organization, 

again housed somewhere else with a separate board and a separate 

staff. 

Mr. JOHNSON. Well, now, okay. 

I would like to ask Dr. McLaughlin. On page 10, the bill uses 

terms such as, ‘‘excessive compliance costs’’ and also ‘‘excessively 

burdensome.’’ What exactly do those terms mean, sir? 

Mr. MCLAUGHLIN. I think that is a great question. I agree with 

your statement that some terms could be interpreted with subjectivity. And I actually think that on page 11 of the bill, the statement that the commission shall establish a methodology for conducting its review hopefully goes to some length to addressing potential problems with subjectivity. 

So it is my hope—and, in fact, I have a study that I just released 

this morning where I recommend methods for addressing the problem of regulatory accumulation, and one of the points that I make 

is an objective method of assessment is key. So I share your concerns, and I hope that can be dealt with. 
108 

Mr. JOHNSON. And tell me now, on page 13, the bill requires the 

commission to review a rule that is identified by the public? So 

does that mean that if the Mercatus Center identifies 1,000 rules 

that it believes should be reviewed, then the commission would be 

required to examine each and every one of those rules? 

Mr. MCLAUGHLIN. Well, I think that the provision for allowing 

the public or any entity to propose a rule is designed to make sure 

there is equal treatment of all. Whether one entity attempts to 

dominate that is perhaps something to be concerned with. It is 

similar to the current notice and comment process that is implemented by the Administrative Procedure Act. So if there is a problem with this, there is also a problem with that in that any entity 

can dominate the submission process. 

Mr. JOHNSON. Thank you, sir. 

And my time has expired. 

Mr. BACHUS. Thank you. 

At this time, I recognize the gentleman from Missouri, Mr. 

Smith. 

Mr. SMITH OF MISSOURI. Thank you, Mr. Chairman. 

Professor Levin, in the closing part of your statement, you—I just 

want to correct. I think you made the statement Federal agencies 

are reliant on Congress in some ways. Is that correct? 

Mr. LEVIN. I am not sure exactly what you are referring to, sir. 

Mr. SMITH OF MISSOURI. Just in your last few sentences, in your 

comments when you were giving oral testimony, you made the comment, Federal agencies are reliant on Congress in some ways. 

Mr. LEVIN. I said that during my response to the Chairman. 

Mr. SMITH OF MISSOURI. Okay, in your oral conversation. 

Mr. LEVIN. Yes, sir. 

Mr. SMITH OF MISSOURI. And that brings a very important point 

to me that I want to make sure is on the record for this Committee. 

Federal agencies are creatures of Congress. They did not just exist. 

Agencies are created by Congress, and Congress can pass whatever 

laws it sees fit to cabin the authority of these agencies when they 

create laws. You know, Federal agencies only exist because Congress has decided by law to delegate its legislative power to agencies. So that statement in saying that Federal agencies are only reliant on some ways to Congress where that agency was created because of Congress is a huge problem, especially coming from a gentleman that teaches at a great university in my State. 

How do you respond to that? 

Mr. LEVIN. Sure. What I said was that they are accountable. But 

I agree 100 percent with what you just said. They are creatures of 

Congress and they are subject to congressional revision, actually 

not 100 percent. Congress cannot pass a law that violates the Appointments Clause or other relevant constitutional restrictions. But 

broadly speaking, Congress can adjust their mandates. So on that, 

I think we essentially do agree. 

Mr. SMITH OF MISSOURI. Exactly. So that goes forward with the 

concern that you said that this current draft violates the Appointments Clause, which I disagree with. But I think we both could 

agree—and you even said in your testimony that there could be 

areas where we could pass recommendations or we could just, in 

my opinion, put it directly in the legislative branch, much like Sen-
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ator King and Blunt’s bill over in the Senate. Would you not agree 

with that? 

Mr. LEVIN. That would solve the Appointments Clause problem 

I believe. It would certainly not deal with all of the policy concerns. 

There is a potential non-delegation constitutional problem with 

what is contemplated, but it does solve the Appointments Clause 

part. 

Mr. SMITH OF MISSOURI. But Congress has the power to say that 

we are going to create this commission to do this process, and in 

regards to appointing the individuals to serve on the commission, 

Congress can set the parameters. This is just a thought off the top 

of my head, but could Congress say that the President would need 

to appoint to this commission two out of the four nominations that 

the Speaker and the Minority Leader present to him? 

Mr. LEVIN. The constitutional criteria for appointment are not 

well defined in case law. I would think certainly the Justice Department would tell you that that is a violation of the President’s 

prerogatives to appoint. 

Mr. SMITH OF MISSOURI. But does the Appointments Clause not 

also provide Congress has the power to decide in the appointment 

process of the President, of the courts, of the heads of departments. 

Correct? 

Mr. LEVIN. Not the clause. I assume the Necessary and Proper 

Clause gives them some authority. 

Mr. SMITH OF MISSOURI. I am talking about the constitutional 

clause of the appointments, the Appointments Clause that you 

brought up. 

Mr. LEVIN. The Appointments Clause itself says the President 

shall appoint. 

Mr. SMITH OF MISSOURI. But does it not say, in regards to inferior officers, that Congress can decide by law of those three different appointments of how they are appointed? 

Mr. LEVIN. I do not think these are inferior officers. They have 

more power probably than any agency that exists today. 

Mr. SMITH OF MISSOURI. But if Congress would say that these 

commissioners are inferior officers—— 

Mr. LEVIN. They would be mistaken. 

Mr. SMITH OF MISSOURI. But we could do that. 

So let us get to the policy process of this bill. Do you see that 

there is a need to reduce obsolete and duplicated regulations off the 

books? 

Mr. LEVIN. Certainly. 

Mr. SMITH OF MISSOURI. What percent would you think would be 

a good target rate? You know, like 1 percent, maybe 5 percent, 10? 

What do you think would be a good target goal in reducing some 

of these regulations off the books? 

Mr. LEVIN. I would not set a target because I think the process 

of weighing the costs against the benefits is an enormously complex 

matter, and I think it would be unhelpful to set a numerical figure. 

Mr. SMITH OF MISSOURI. So you would not want to say 1 percent 

of the regulations are probably outdated or obsolete? 

Mr. LEVIN. I would not want to set a target figure because I 

think any such target would not be helpful in deciding which are 

the ones to eliminate. 
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Mr. SMITH OF MISSOURI. So do you feel like 174,000 pages of regulations is too many or not enough? 

Mr. LEVIN. I think there are many areas where—many of them 

we do not need, and there are many more we do need. So how they 

net out I am not sure. 

Mr. SMITH OF MISSOURI. So no response. 

Thank you, Mr. Chairman. 

Mr. BACHUS. Thank you. 

At this time, I recognize the gentleman from Michigan, our 

former Chairman, Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman Bachus. And I thank the 

witnesses. 

Let me ask my two friends, Mr. Batkins and Mr. McLaughlin, if 

you were persuaded—and I am not saying that you are already— 

that this provision could not pass constitutional muster, would that 

change your support for it? I will start off with Mr. McLaughlin. 

Mr. MCLAUGHLIN. Thank you. 

First, I need to clarify that I am not formally endorsing this. I 

am merely comparing the components that are in the bill to what 

I have laid out in my own research, elements that are necessary 

for successful reform. 

Secondly, I am a Ph.D. economist. I am not a constitutional lawyer, so I do not really have the wherewithal to weigh in on the constitutionality of the issue here. I apologize. 

Mr. CONYERS. Well, that is okay. There are many Members of 

Congress who cannot either. 

But the problem is that if you were confronted by the legal opinions of constitutional scholars, would that affect your opinion? 

Mr. MCLAUGHLIN. My opinion is that there is a lot of merit to 

addressing the problem of regulatory accumulation from an economics perspective, and I would hope that issues like the constitutionality of any approach could be ironed out by legal scholars so 

that the issue can actually be dealt with. So my support would go 

toward dealing with the problem. 

Mr. CONYERS. Mr. Batkins, with the American Action Forum, 

how would you react to a finding of unconstitutionality on this 

draft measure that we are discussing here this afternoon. 

Mr. BATKINS. Again, I just want to clarify that we did not as a 

(c)(3) sort of formally supported the bill, but just sort of the broad 

principles of retrospective review. 

As to the constitutionality, that is not something that I discussed 

in my testimony. I understand that there is the presumption of 

constitutionality and that going forward, as this bill progresses, if 

there are serious defects, I am confident that they will probably be 

cured during the process. 

Mr. CONYERS. Well, Professor Levin, would you care to make any 

comment about this issue that a number of us, including yourself, 

have raised already? 

Mr. LEVIN. About the constitutional issue? Well, just to elaborate 

a little bit on this distinction that Representative Smith made between principal and inferior officers, which I did not address in my 

first remarks, but beyond the fact that any officer who exercises a 

significant authority must be appointed under the Appointments 
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Clause, some may only be appointed by the President with senatorial confirmation. 

And to be an inferior officer, you would need a superior. Well, 

this commission is not supervised by anyone. So in my view, they 

would be principal officers. You would need presidential appointment and senatorial confirmation. 

Mr. CONYERS. Thank you so much. 

On page 10, Professor, you use the terms ‘‘excessive compliance 

costs’’ and ‘‘excessively burdensome.’’ I wanted to review those with 

you. It seems like there is so much subjectivity involved that it is 

kind of hard for us to get it together. 

Mr. LEVIN. Correct. They are entirely subjective or at least undefined. 

Mr. CONYERS. Exactly. 

Last, but not least, on page 13, the bill requires the commission 

to review a rule that is, quote, identified by the public, unquote. 

So if Mercatus Center identifies 1,000 rules that it believes should 

be reviewed, would the commission be required to examine each of 

these rules? 

Mr. LEVIN. Since I had only 3 days to examine the bill, I am not 

sure about the specific point of what the scope would be. I generally agree with Mr. McLaughlin that a commission like this probably should look at submissions from the public. My problem is not 

that they are willing to listen, that they receive things from other 

people, but that I do not trust the conclusions they would reach. 

Mr. CONYERS. Thank you so much, all of you. 

I yield back the balance of my time, Chairman Bachus. 

Mr. BACHUS. Thank you. 

At this time, I recognize Mr. Doug Collins, the gentleman from 

Georgia. 

Mr. COLLINS. Thank you, Mr. Chairman. I appreciate it. 

I think this is definitely an opportunity to discuss the issues of 

transparency, the issues that we are dealing with here, and I think 

to include that further, I am going to yield the balance of my time 

to the gentleman from Missouri, Mr. Smith. 

Mr. SMITH OF MISSOURI. Thank you, Representative. 

Mr. McLaughlin, we were talking about having an independent 

commission. Right now how the process is that through executive 

orders, agencies monitor their own policy or ineffective or duplicated regulations. Correct? 

Mr. MCLAUGHLIN. Yes, sir. There have been a series of executive 

orders dating back decades that have exhorted agencies to review 

their own regulations. It is my opinion through research that none 

of them has had a substantive impact. 

Mr. SMITH OF MISSOURI. So where I come from in Missouri, we 

would call that the fox guarding the henhouse. And that is why we 

need an independent commission that is going to do some serious 

work in finding these regulations and to see if they are doing what 

they are supposed to be doing. 

What would you think would be a good target rate in what percent of maybe regulations that are out there that this commission 

could find that are duplicated or obsolete? Would you say 5 percent, 

1 percent, 25 percent? I would like to have your judgment. 
112 

Mr. MCLAUGHLIN. Unfortunately, I am not going to be able to 

give you a number. And I think part of the reason is we do not 

know. As you have said a few times, there are over 174,000 pages 

in the CFR. That would take something like 2 years of someone’s 

life to read. So to get to the point where we know what percentage 

to get rid of, it will first require a careful assessment of what we 

have on the books in the first place. I think that the assessment 

that is done by agencies, even if it were to be objective, could probably not deal with the number of rules that they have created over 

the decades anyway. 

Mr. SMITH OF MISSOURI. Mr. Batkins, would you want to give a 

target, a percentage of how many you think that may be out there 

that need to be amended or repealed? 

Mr. BATKINS. I do not know that I could necessarily quantify it, 

but I can say that there is probably a lot of low-hanging fruit just 

from the reviews that I have seen from the Administration. It is 

2014. There is a lot of electronic reporting, updating that we can 

do aside from the paper filings. I know that EPA has proposed 

rules for its National Pollution Discharge Elimination System and 

Hazardous Waste Management System that is moving toward electronic filing that, according to EPA, could save roughly $200 million annually. So I think there is probably some low-hanging fruit 

in the CFR, and a lot of that might just be getting technology to 

2014. 

Mr. SMITH OF MISSOURI. Would you want to take a guess at a 

percentage? 

Mr. BATKINS. Like I said, I do not know that I could necessarily 

quantify it. 

Mr. SMITH OF MISSOURI. I am not going to hold you to it, but say 

15 percent, 20? 

Mr. BATKINS. I would say that the—it is not necessarily the case, 

but the older provision more or less might be more ripe for review 

and amendment. But again, we have added a lot to the books just 

in the last few years, but again, I do not know if I could quantify 

it. 

Mr. SMITH OF MISSOURI. All right. 

Professor Levin, have you read S. 1309, Senator King’s and Senator Blunt’s review commission, because you mentioned it in your 

testimony? 

Mr. LEVIN. Yes, S. 1390, I believe it is. 

Mr. SMITH OF MISSOURI. 1309. 

Do you think that passes constitutional muster in the appointment of their commission? 

Mr. LEVIN. As I recall—and again, I did not focus on that bill because it is not the one we are considering today, but roughly speaking, if the commission merely makes recommendations to Congress 

for Congress to act on, that is, in general, constitutional. 

Mr. SMITH OF MISSOURI. And if a commission is solely rested 

within the legislative branch, would it be constitutional? 

Mr. LEVIN. If it is solely a legislative agency, it cannot exercise 

executive power. 

Mr. SMITH OF MISSOURI. Exactly. If the commission was just 

doing the work that was delegated to it by Congress but it sat 
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within the legislative branch, just like another Committee in Congress. 

Mr. LEVIN. It depends on what the assignment is. The Supreme 

Court struck down the Gramm-Rudman Act in which power was 

entrusted to the Comptroller General because his actions were 

going to be legally binding, and you cannot ask the Comptroller 

General to do that. 

Mr. SMITH OF MISSOURI. Thank you, Mr. Chairman. 

Mr. COLLINS. I yield back, Mr. Chairman. 

Mr. BACHUS. The gentleman from New York is recognized for 5 

minutes. 

Mr. JEFFRIES. Thank you, Mr. Chairman. 

Dr. McLaughlin, would you say that this bill is designed to address an urgent problem that confronts this country? 

Mr. MCLAUGHLIN. I think it is a significant problem. Regulatory 

accumulation, as I noted in my testimony, has been found to slow 

economic growth substantially, and that harms everyone. 

Mr. JEFFRIES. So it is urgent because excessive regulation exists. 

Is that correct in your view? 

Mr. MCLAUGHLIN. In my view the regulatory process we have in 

America results in consistent accumulation over decades. There is 

no process for getting rid of obsolete, duplicative, outdated, or ineffective regulations, at least no streamlined process. And I guess 

one way to put this is this is an opportunity for us to improve our 

economy at the rate of which—— 

Mr. JEFFRIES. What is the adverse impact of the outdated, cumulative, excessive regulations that you speak to that you have characterized as a significant problem? What is the impact on the economy? 

Mr. MCLAUGHLIN. Primarily it reduces innovation and entrepreneurship. People who would have undertaken some sort of entrepreneurial endeavor—maybe it could be—for example, Logan City, 

Utah was going to install—actually did install micro-hydropower 

systems in order to create some clean energy for local residents. 

But they ran into a lot of regulations that were duplicative and not 

applicable to this particular scenario. End result: the cost of this 

environmentally friendly endeavor doubled. 

Mr. JEFFRIES. Okay. We have the world’s most significant economy. I get that you are pointing to a situation in Logan City, Utah, 

and I am sure that is a wonderful place. But I am asking about 

the significant nature of the problem that you have indicated and 

for you to be able to point to evidence that exists as it relates to 

the impact of the economy. What evidence do you have in a macroeconomic way? 

Mr. MCLAUGHLIN. Yes, sir. My testimony cites several studies 

that have been published in peer-reviewed academic journals, one 

of which is the one I cited in my testimony. However, others have 

been produced by scholars at the World Bank, the OECD. The evidence is it is wide-ranging that a regulatory system that does not 

address obsolete and duplicative or ineffective regulations—— 

Mr. JEFFRIES. Give me an example of an ineffective rule in the 

food safety area, for instance. 

Mr. MCLAUGHLIN. An effective regulation would be one that does 

not achieve its outcomes, does not have an effect. 
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Mr. JEFFRIES. I am asking for an example. 

Mr. MCLAUGHLIN. I am sorry? 

Mr. JEFFRIES. Can you give me an example? 

Mr. MCLAUGHLIN. Of a regulation in food safety? I am not an expert in food safety. 

Mr. JEFFRIES. Give me an example of a regulation that fits that 

description of being outdated, ineffective, non-constructive in the 

occupational safety area. 

Mr. MCLAUGHLIN. Well, there is a regulation that I am familiar 

with that is in the safety area. NHTSA, for example, requires headlights to be designed in a certain way, high beam and low beam, 

and the reason is you do not want the high beam to blind an oncoming driver. That regulation is, in my opinion, outdated because 

now adaptive headlight systems have been created, sold in Europe, 

sold in Asia, but not in America because this regulation prohibits 

them. This adaptive system would allow the high beam to be 

dimmed for the oncoming driver—— 

Mr. JEFFRIES. I am sorry to cut you off, but my time is limited. 

Your position is that we need a presidentially-sanctioned, legislatively-authorized commission to deal with an outdated high beam 

regulation. That is essentially what you are here to testify to 

today? 

Mr. MCLAUGHLIN. The regulation is still impeding progress in 

our economy, and I am sure that is only one of many examples that 

could be found, were we to be able to go through all 174,000 pages. 

Mr. JEFFRIES. Can you give me an example in the consumer safety area of an outdated regulation that is having a devastating impact on our economy that requires us to move forward with some 

degree of urgency and connected with this legislation? 

Mr. MCLAUGHLIN. Sir, I think your line of questioning is actually 

underscoring the point that we do need to do a thorough assessment of all these regulations. There is no way I can sit here and 

come up with example after example after example because I have 

not spent my time reading all 174,000 pages of regulations. However, we have a good suspicion, I think, on both sides of the aisle 

for all parties involved that there are some there that could be gotten rid of and could offer chances for—— 

Mr. JEFFRIES. All right, but sir, we are here to address problems 

that confront the American people, not enact legislation in search 

of a problem that heretofore, for me at least, has been ill-defined. 

One last question. So you took the position that you are not familiar with the fact that the Koch brothers have provided funding 

assistance to the center that you work for. Is that your position on 

the record? 

Mr. MCLAUGHLIN. We have a firewall separating research from 

fundraising. I am not familiar with the details of fundraising. That 

is my position. 

Mr. JEFFRIES. Thank you. 

Mr. BACHUS. Thank you. 

Professor, there have been three executive orders by this President to review regulations, to look for outdated regulations, duplicative regulations, those that have more of a detriment or cost than 

a benefit. Do you agree with an effort to systematically go through 

all the regulations and do a regulatory reform effort? 
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Mr. LEVIN. Mr. Chairman, I testified on this point in 2012, and 

I think there are diminishing returns to looking repeatedly at every 

regulation. 

Mr. BACHUS. I am out of order. 

Mr. Cicilline from Rhode Island. 

Mr. CICILLINE. Mr. Chairman, thank you, and I thank the witnesses. 

I will concede for the purpose of this hearing that there are some 

regulations that are duplicative and unnecessary and obsolete and 

we ought to eliminate them. I think each of us could find one. 

But the notion of creating a new bureaucracy of unelected bureaucrats with no particular experience or expertise to make critical, often lifesaving determinations about issues ranging from safe 

chemical levels to energy standards, to health care is a frightening 

prospect and I think something that I would resist with tremendous resolve. 

But I want to just try to understand how it would work, even if 

you had your way. Your legislation says that in this cut-go, that 

the cost of any new rule to the United States’ economy has to be 

offset by a repeal. So I want to understand how we would calculate 

the cost of a new rule. So suppose you had a rule—and this is for 

you, Dr. McLaughlin—that said you have to have a level of this 

particular toxin below a certain amount because it proved to be 

very deadly to children. It is in children’s food. And it would add 

a dime to the cost of food for children, but it would save countless 

lives. At high levels, it would cause infant death. It presumably 

would save thousands of lives. If you calculate the cost of the new 

rule to the U.S. economy, do you take into account not just the 10 

cents but there is no requirement that you net out the children 

whose lives would be saved, the children who would be healthier 

because they are not ingesting the toxin? Is there anything in this 

legislation that would net out what the value of regulation is? And 

if not, how do you possibly implement it? 

Mr. MCLAUGHLIN. It is my understanding that the analysis of 

costs for the cut-go portion of the bill for any new rules proposed 

would actually be performed by the agency that is proposing those. 

Under their methods that they use right now, they perform regulatory impact assessment following OMB Circular—— 

Mr. CICILLINE. But, Dr. Levin, the statute that we are being 

asked to consider says the annual costs of the new rule to the 

United States’ economy. There is no assurance that there is actually even an assessment done about what the net benefit of any 

regulation is. Right? And, of course, that is consistent with what 

you said in your opening comment where you said currently regulations by design restrict choices. Well, I guess that is true. It restricts the choice of a parent to have their child to eat food that 

is poisoned. But it does not just restrict choices. It also is about 

keeping people safe, for example. Would you agree? Regulations do 

not just restrict choices. They also keep people safe. 

Mr. MCLAUGHLIN. Regulations have both costs and benefits. Absolutely. 

Mr. CICILLINE. Okay. Benefits are safety, health. Right? 

Mr. MCLAUGHLIN. Regulations can—— 
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Mr. CICILLINE. And you agree we should take those into account 

before we make a determination as to whether or not to repeal a 

regulation. Correct? 

Mr. MCLAUGHLIN. I think that benefits should be weighed 

against costs. 

Mr. CICILLINE. And in fact, you said in a letter to the editor to 

‘‘The Hill’’—and I quote. You wrote, ‘‘It is unlikely that anyone 

knows what the actual net benefits of regulation are although I 

maintain hope that further research can produce some reliable lessons.’’ Those are your words. 

Mr. MCLAUGHLIN. Those are. 

Mr. CICILLINE. So this bill would then allow individuals who 

have no expertise in a subject-matter area to make a determination 

as to whether or not a regulation should be repealed based on the 

offset that comes solely from the cost to the U.S. economy without 

any consideration of the benefits. 

Mr. MCLAUGHLIN. I do not think that is a completely correct 

characterization. I do not know that it would be consisting of people without expertise in the area. I actually tend to think that we 

should make sure they have expertise in the areas being reviewed. 

Mr. CICILLINE. Well, do we not have another mechanism available to us, both through the APA and through statutory directives, 

obligating people who actually have responsibility and expertise in 

this area to do assessments and allowing individuals to petition for 

the repeal or review? Does there not already exist an infrastructure 

to do exactly what you are advocating for? 

Mr. MCLAUGHLIN. The problem with that infrastructure, sir, is 

that expertise does not necessarily equate to objectivity. So under 

current processes, the agencies review their own regulations, but it 

is not guaranteed that you will get an objective analysis. Agencies 

are stakeholders in this process. 

Mr. CICILLINE. But if, in fact, an agency refuses to repeal a regulatory provision that ought to be repealed, that matter can then be 

taken up by the Congress of the United States through legislative 

action. 

Mr. MCLAUGHLIN. Something that I think is very rare. 

Mr. CICILLINE. But there are mechanisms that currently exist to 

address the very problem that this legislation intends to address. 

Mr. MCLAUGHLIN. And the study that I released today and that 

I submitted to the record—if not already, I will make sure it is— 

I have addressed these efforts, and it is my conclusion that none 

of the methods that we have right now for retrospective review are 

making much difference. 

Mr. CICILLINE. I thank you, Mr. Chairman, and yield back. 

Mr. BACHUS. Thank you. 

There is a vote on the floor. So at this time, we are going to wrap 

up. 

You know, Senator Joseph McCarthy is dead, but the Ranking 

Member may want to actually—you went into the Koch brothers. 

You may actually want to talk to Professor Levin. He is actually 

in the Anheuser-Busch Hall. You might actually want to see if 

there is some tie-in with the beer industry, which I know does not 

exist. 
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Mr. LEVIN. I concede that I work in Anheuser-Busch Hall, Mr. 

Chairman. 

Mr. BACHUS. We will not to explore your beer preferences or 

whether your work is influenced by being in the Anheuser-Busch 

Hall. 

Mr. LEVIN. I try to give sober assessments, sir. [Laughter.] 

Mr. BACHUS. Thank you. 

Mr. JOHNSON. Mr. Chairman, if I might, I would like to offer, 

with unanimous consent, these two letters, one from the Natural 

Resources Defense Council and the other from the Coalition for 

Sensible Safeguards, both of which oppose the SCRUB Act. I would 

like to submit those for the record. 

Mr. BACHUS. And the Natural Resources Defense Council—we 

could have predicted that. Could we not? 

Mr. JOHNSON. Just as we could predict that Karl Rove and the 

Koch brothers are in favor of fewer rules. 

Mr. BACHUS. Anheuser-Busch folks—they got to be in there 

somewhere. 

Without objection. 

[The information referred to follows:] 
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Mr. JOHNSON. Thank you. 

Mr. BACHUS. This hearing is adjourned. 

Professor Levin, I would like to explore with you whether there 

is some bipartisan way to—you talked about—to look at these regulations. 

Mr. LEVIN. I take it you are wrapping up, but I would be happy 

to work with the Subcommittee over time in looking at alternative 

ways of dealing with retrospective review. 

Mr. BACHUS. Thank you. 

This concludes today’s hearing. Thanks to all our witnesses for 

attending. 

Without objection, all Members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

materials for the record. 

This hearing is adjourned. 

[Whereupon, at 2:31 p.m., the Subcommittee was adjourned.] 
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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Bob Goodlatte, a Representative in 

Congress from the State of Virginia, and Chairman, Committee on the Judiciary 

Just over six months ago, President Obama announced that he would once again 

pivot to the economy. The bottom line of his speech: after four-and-a-half years of 

the Obama Administration, ‘‘We’re not there yet.’’ 

The President was right. We were not there yet. Regrettably, the same can be 

said today. Job creation and economic growth continue to fall short of what is needed to produce a real and durable recovery in this country. The nominal unemployment rate is down, but that is not because enough workers have found jobs. It is 

because so many unemployed workers have despaired of ever finding new full-time 

work that they have left the work force or settled for part-time jobs. 

As long as this situation continues, Congress must stay focused on enacting reforms that will stop the losses, return America to prosperity and return discouraged 

workers to the dignity of a good, full-time job. 

Throughout this term of Congress, the Judiciary Committee and the Subcommittee on Regulatory Reform, Commercial and Antitrust law has worked hard 

to produce the regulatory reforms that will help to produce these results. Today, we 

turn to one of the biggest remaining pieces of the puzzle—how to clear the clutter 

of outdated and unnecessarily burdensome regulations that too often keep growth 

and job creation down. 

For years, there has been a bipartisan consensus that this is an important task 

that must be performed. But, as with so many things, the hard part has always 

been the details. Different approaches have been tried by different presidential administrations, and some solutions have been offered by Congress. But, to date, no 

sufficiently meaningful results have been produced. 

In many ways, this must be because past approaches have never fully aligned the 

incentives and tools of all of the relevant actors—regulatory agencies, regulated entities, the President, the Congress, and others—to identify and cut the regulations 

that can and should be cut. On their own, regulators have little incentive to shine 

a spotlight on their errors or on regulations that are no longer needed. Regulated 

entities, meanwhile, may fear retaliation by regulators if they suggest ways to trim 

the regulators’ authorities. And the sheer volume of the Code of Federal Regulations—which contains well over 150,000 pages of regulations—presents a daunting 

task for any Congress or President to address. 

The SCRUB Act represents a real step forward in our attempts to identify a way 

to cut the forest of federal regulations down to size without compromising needed 

regulatory objectives. By establishing an expert commission with the resources and 

authority to assess independently where and how regulations are outdated and unnecessarily burdensome, it overcomes the disincentives for agencies and even regulated identities to identify problem regulations. 

In addition, by providing a fast-track legislative method to green-light repeal and 

amendment of the highest priority regulations, the SCRUB Act assures that we will 

take care of the biggest problems quickly. Further, by instituting regulatory ‘‘cut- 
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go’’ measures, the bill assures that the rest of the work of cutting regulations will 

finally happen. 

Finally, by instituting efficient means for Congress to provide the ultimate checks 

on the regulatory review exercise, it assures that the Legislative Branch has the ultimate say over the exercise of legislative authority it delegates to agencies. 

I urge my colleagues to support the RAPID Act and cut down the time it takes 

America’s workers to see a real Jobs Recovery. 

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Response to Questions for the Record from Patrick McLaughlin, Ph.D., 

Senior Research Fellow, Mercatus Center, George Mason University 
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Response to Questions for the Record from Sam Batkins, 

Director of Regulatory Policy, American Action Forum 
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Response to Questions for the Record from Ronald M. Levin, Professor, William R. Orthwein Distinguished Professor of Law, Washington University 

School of Law 
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