Public affairs teams spend countless hours working to pass legislation, knowing all along that opponents are working just as hard. What they may not know is that one of them could be a government regulator.
Agencies at the federal and state levels are often heavily involved in the legislative process, from testifying before committees to implementing laws after passage. These agencies often have their own agenda, which is not always in step with what lawmakers are trying to do. In fact, it sometimes conflicts directly.
While there’s no doubt agencies play a critical role in legislation, providing expertise, educating lawmakers, and implementing laws, some policy experts say that role can cross the line when agency viewpoints run counter to legislative intent.
“These people are unaccountable, they’re unelected and they’re able to throw a wrench into policies,” said Daniel J. Dew, legal policy director at the Pacific Legal Foundation, a nonprofit that has fought against government overreach for the last 50 years. “There shouldn’t be this unelected group of people who never go before the voters and get to shut that down.”
How Agencies Impact Both Bills and Law
Both in Congress and state legislatures, agency experts are often called upon to testify as experts, and rightly so. For example, it is easy to see how an expert from a state insurance commissioner’s office might be a valuable voice on a bill to regulate insurance. The agency has expertise, experience, data, and it may be called upon to implement and enforce whatever is passed.
However, Dew points out that agency experts do not always represent a neutral point of view. In cases where new laws may create more work for an agency, increase costs, or revise longtime procedures, the agency may present a factual argument against the changes, with or without expressing outright opposition. The line between expert and advocate can become blurry.
In state legislatures, where lawmakers often serve part time and have few staff, that kind of testimony can carry a great deal of weight. Another common tactic, Dew said, is to attach a high price tag to proposed changes, making bills tougher to pass.
“[Legislators] trust these bureaucrats who’ve been there for 10 or 20 years,” Dew said. “If they tell them there is a problem, they’re just going to say, ‘we can’t do this.’”
Another area where regulatory agencies can impact legislation is after a bill is passed and it is time for implementation. In many cases, legislative language is general and the specifics are left to agencies, which set regulations. While this is often done through a public process, Dew argues that it upsets the system of checks and balances. Dew says courts, not bureaucracies, should be charged with interpreting law. When agencies step in to do so, even though most are operating under the aegis of the executive branch, policies can veer from the legislature’s intent.
How to Address Agency Intervention
But there are solutions to that problem. For example, public affairs teams can urge lawmakers to consider implementation when they write legislative language. “When they do reforms, make sure they put teeth in them,” Dew said. “It makes it harder for agencies to sidestep. Make sure that there are consequences for not complying, or just write the statute in a way that is so crystal clear that they can’t write implementing regulations to water it down.”
In the long term, Dew says the answer is to provide lawmakers with more resources, something that lobbyists and public affairs professionals do on a regular basis. Many teams are well acquainted with the need to educate lawmakers and staff and provide high-quality research.
“I think it’s important that … they can make independent judgments, and not just rely on agencies,” Dew said. “We have to make sure that they have the adequate resources to make informed decisions.”
Dew is not the only one to express that viewpoint. In a report on agency authority this year, the Brennan Center for Justice wrote, “Congressional staff, capable and dedicated as they may be, too often lack the specialized knowledge and experience necessary to advise on complex policy areas. And they have far fewer internal resources to fill in the gaps in their knowledge than they did in years past.”
The Role of the Courts: Understanding ‘Chevron Deference’
Nationwide, the question of how laws are interpreted and implemented is being debated both at the state and federal level. For decades, a legal doctrine known as “Chevron deference” has determined how much room federal courts give federal agencies to interpret the laws passed by Congress. The doctrine has also been mirrored in many states.
The name comes from a 1984 U.S. Supreme Court ruling in the case Chevron U.S.A. v. Natural Resources Defense Council, which established a two-part test for courts and agencies, according to a report by the NRDC released this year.
“First, they examine the wording and the context of the statute in question to see if Congress’s intent is clear,” the report said. “If it is, then the matter is settled: The agency is obliged to follow the letter of the law. But if the statutory language is ambiguous—that is, if it has two or more reasonable interpretations—the reviewing court must defer to the agency’s choice in how to carry out the law. The idea behind such deference is that expert agencies, accountable to an elected president, are better suited than federal judges to make the policy choices that Congress left open.”
A Debate Over Doctrine
his year, the Supreme Court agreed to hear Loper Bright Enterprises v. Raimondo, a case that “presents the court with an opportunity to weaken the Chevron doctrine significantly, or perhaps even do away with it altogether,” according to the NRDC.
The result could change how the federal government implements and interprets the laws passed by Congress. Accordingly, a similar debate has emerged in some states, where state Supreme Courts are ruling on deference. As is often the situation when 50 different jurisdictions make decisions case by case, experts note that there have been inconsistencies.
Daniel Ortner, an attorney at the Foundation for Individual Rights and Expression and former lawyer at Pacific Legal Foundation, wrote in the Yale Journal on Regulation that “some of these states have veered back and forth from deference and non-deference so quickly that it makes my head spin.”
“This inconsistency is troubling,” he concluded. “I suspect that both defenders and critics of deference would agree that there is nothing worse than deference inconsistently applied.”
Whatever the outcome, Dew says it is an issue worth watching at both the state and federal levels. “It doesn’t matter which side of the political spectrum you’re on,” he said. “You should really, really care about this.”