The Other Half of the Fight: What Goes on Behind
By Khan Shoieb '13
Health care reform and the financial regulatory overhaul passed this year will be long hailed as two of the modern liberal’s proudest achievements — indeed, regardless of whether one agrees with the merits of either bill, few will deny their transformative effect on American life in decades to come. They were the products of long, consuming fights between administration officials, advocates, Congressmen, grassroots organizers, lobbyists and the media. Meetings were scheduled, drafts were written, arms were twisted, amendments were offered, votes were tallied, parties were held and alas, everyone went home.

The long battle is finally over, cried the media. The American public, fatigued from the caustic, repetitious debate over what the Obama administration was or wasn’t trying to do to their family, happily tuned out from the issue and moved on to the next one Fox News told them to care about. But while the media, Congressmen and community organizers all left the party, the lobbyists stuck around. For them, the fight wasn’t over.

Nor should it have been for the rest of us. Few outside the Beltway realize that modern legislation is next to meaningless as passed. The 2,000 page bills that Rep. Boehner slams on the House floor are filled with legalese and vague terms that must be translated into complicated, practical rules by federal agencies over months and even years. Indeed, the provisions that are written into bills pay little heed to the realities of the industry within which they are intended to operate.

Thus, in what is known as the rulemaking process, federal agencies such as the Department of Health and Human Services, Securities and Exchange Commission (SEC) and the Federal Trade Commission spend the months and years following passage trying to interpret and apply the principles underlying those provisions to the complex realities of the modern regulatory state. In doing so, they attempt to anticipate unintended consequences and predict the outcomes of specific rules.

Stakeholders — big business, health insurance companies and the sort — realize this unfortunate fact and hire lobbyists to continue to make their case to these regulatory agencies. Operating under the belief that “hearing from all interested parties leads to better rule-making,” as a spokesman for the SEC put it, the agencies often actively solicit input from lobbyists. What results is that the agencies are then “captured” by the very industries they are meant to regulate; exposed only to the arguments for why they shouldn’t be doing their job, they allow the industry to set the terms of the debate and find themselves convinced.

Add to this the nature of the revolving door in Washington. The Times reported over the summer that almost 150 lobbyists registered in the past year alone had previously worked for regulatory agencies such as the S.E.C. Indeed, hundreds of lobbyists in D.C. are lobbyists precisely because their colleagues who remain at these agencies are more likely to pick up their phone call, more likely to listen and more likely to assign merit to their arguments. The revolving door is no myth. If anything, the fact that it extends beyond regulatory agencies is more troublesome. Most notoriously, Peter S. Roberson, an aide to Rep. Frank, Chairman of the House Financial Services Committee, left his post in April for Goldman Sachs immediately after drafting derivatives regulations that would invariably affect the investment bank. Alas, the lines between the two universes are a lot more fluid than one would hope.

By allowing lobbyists to try to persuade former colleagues that Congress’ intentions for the bill were different from the American people’s perceptions of it, regulatory agencies are prone to eviscerating the intended impacts of legislation passed in the 21st century. Americans of all political stripes need to become aware of the fact that the fight is not over with the mere passage of a bill. The transparency that eludes the rulemaking process can make the difference between a functioning democracy and one that is corrupted by money. Indeed, if organizers, advocates, journalists and citizens across America are as passionate about certain issues as they seem to be, they should stay vigilant and see these causes to the end.

Issue 03, Submitted 2010-09-22 00:15:30