The House Judiciary Committee recently reported out HR 3862, known as the Sunshine for Regulatory Decrees and Settlements Act. Sponsored by Rep. Ben Quayle (R-AZ), HR 3862 purports to shine some sun on the “bevy” of settlement agreements and consent decrees generated whenever the government is taken to court for failing to enforce a law or regulation. The bill would block either party in the case from filing a motion for a decree or settlement until all other affected third parties have had an opportunity to intervene.
Giving third parties the opportunity to intervene in such cases is nothing new. What’s new in this bill is the reduction in the degree of discretion the court has to deny a third party's intervention.
Not only does that sound boring, it seems harmless. At first glance, Quayle’s bill is so tedious and benign that it would be hard to imagine it having anything to do with a messy, blood-and-guts assault on civil rights. But as our mothers always tell us, the devil is in the details…and the procedures.
The expanded ability for third parties to intervene could mean additional delays in forcing an agency to step in and protect consumers from unsafe business practices. It could mean that a discrimination suit against a corporate giant might be delayed months or years as other giant corporations – as “affected third parties” – take the time to weigh in on the case.
We have seen time and again that big corporate interests benefit the most from changes to legal procedure, and this bill is certainly no exception.
At last week’s markup, Chairman Lamar Smith (R-TX) summarized the reasoning behind this bill by saying:
“Job creators need relief from the flood of new regulations… [A] heavy contributor to the burden of new regulations is the use of consent decrees and settlement agreements to force federal agencies to issue new rules.”According to the sponsors of this bill, the need for HR 3862 all boils down to a little TLC: transparency (or the absence thereof) in the current process; lack of access by third parties; and a covert conspiracy between federal agencies and pro-regulatory businesses.
Yes, you read it right: a conspiracy.
Rep. Quayle explained that settlements or decrees:
“…often made behind closed doors, are the result of activist, pro-regulatory parties suing the federal government when an agency misses an enforceable statutory deadline… this closed door process… can effectively make public participation meaningless.”He went on to argue that the current legal process of obtaining decrees and agreements is a smokescreen for:
“pro-regulatory parties conspiring in secret with agencies prior to formally initiating litigation and then proposing a settlement agreement and filing suit concurrently.”Quayle did not mention that speedy resolution of disputes over enforcement might be beneficial to Americans who want to protect rights such as access to clean water and air, freedom from racial and gender discrimination, and protection of Medicaid and other benefits. Following the argument of Quayle and his cosponsors, that’s all part of the conspiracy.
Rep. Mel Watt summed it up best when he said HR 3862 is ”inviting delay, inviting more expenditure of funds by parties who really can just rope a dope and game the system for as long as the courts will allow them to do that, and you have given them the licenses to do it.”
No cosponsors at the markup mentioned that this conspiracy of speedy resolution to disputes can occasionally prevent large corporations from prolonging the process of making the government accountable, and that third-party corporations often have a financial interest in altering the outcome of such disputes.
Now who’s doing the conspiring?