Repeal of rule hitting a snag
Trump revocation of disclosure regulation is temporary rollback
The legislation, approved on mostly party-line votes in Congress, unwound a Securities and Exchange Commission anti-corruption rule that required oil and mining firms to disclose how much they pay to foreign governments to drill in their countries.
“A lot of people going back to work now,” the president said in the Oval Office in early February. “The energy jobs are coming back.”
But the president’s remarks — and the subsequent explanation of the bill by the White House — failed to include an important piece of context: The rollback is temporary. The SEC must rewrite the rule, potentially within the next eight months. And when it does, oil companies will have to disclose the payments.
That’s because all of those requirements are included in the 2010 Wall Street reform law known as Dodd-Frank. When Trump signed the bill on Feb. 14 he repealed a regulation that implemented a part of that law. But the law still stands, and dismantling it would be trickier — likely requiring 60 votes in the Senate.
“The law is the law. It has to be enforced,” said Sen. Ben Cardin of Maryland. “The SEC needs to act.”
Cardin, the top Democrat on the Senate Foreign Relations Committee, crafted the law seven years ago with then-Sen. Dick Lugar of Indiana, a Republican.
Analysts say the process of rewriting the Cardin-Lugar rule could set a precedent for whether and how federal agencies deal with the other 14 regulations Trump and congressional Republicans have targeted through the mostly untested Congressional Review Act.
It is not clear whether that process has begun at the SEC, an independent agency that has two vacancies on its five-member board. The board currently has two commissioners appointed by President Barack Obama; Trump has named a third.
A spokesman at the SEC declined to answer questions for this article, including whether the process of rewriting a new resource extraction rule is underway.
Of the 40 bills the president has signed since taking office, a third have been measures to repeal regulations under the expedited review process allowed by the Congressional Review Act. They include a Department of Interior rule intended to protect streams from coal mining pollution and a Department of Labor regulation that limited when states could impose drug tests on residents collecting unemployment insurance.
The Congressional Review Act allows lawmakers to roll back regulations with a simple majority in the Senate. Most other legislation generally requires 60 votes.
Before this year, it was used only once, in 2001, when President George W. Bush overturned a Labor Department rule that set workplace ergonomic standards.
The GOP-led House approved a bill this month to gut Dodd-Frank, and some parts of it could potentially pass the Senate with a simple majority. But it’s not clear that GOP leaders are pursuing that option.
The American Petroleum Institute, which represents U.S. oil and natural gas firms, has argued for years that Cardin-Lugar puts its members at a competitive disadvantage in the global market because companies in other countries do not face the same disclosure requirements.
A spokeswoman for the group said it is working with the SEC to draft a new rule.
The API has proposed a model in which the SEC would report how much money had been paid to countries for mining but would not disclose which specific companies made those payments.
“We look forward to continuing these efforts and working with the SEC, Congress, and the administration to achieve reforms that do not harm our nation’s businesses and workers,” spokeswoman Brooke Sammon wrote in an email to The Baltimore Sun.
A White House spokesman did not respond to multiple requests for comment.
Supporters of the regulation say overseas companies are increasingly adhering to similar requirements. Canada, the European Union and Norway, citing the U.S. law as the impetus, have mandated that companies disclose payments to other governments. Gazprom, the state-owned natural gas company of Russia, is also disclosing payments.
“There’s a ton of disclosure going on right now with no ill effect,” said Jana Morgan, director of U.S. operations for Publish What You Pay, a London-based group that advocates for transparency.
The effort has its genesis in the bloody civil wars of Africa and the notion of the “resource curse.” Outside groups grew concerned that foreign mining payments were propping up repressive governments and that leaders were personally benefiting from the money rather than growing their nations’ economies.
Groups such as Publish What You Pay pressed developed countries to require publicly traded mining and oil companies to disclose how much money they were sending to foreign government for drilling rights.
Large oil companies in the United States resisted, saying that Cardin-Lugar had no relation to the housing and financial crisis that Dodd-Frank was created to solve.
In addition to the competition argument, the industry said disclosing the size of projects would increase security risks at its sites.
Trump ran for president last year on promises to roll back Obama-era regulations, which he described as hampering the U.S. economy and job growth. The Cardin-Lugar regulation, which stemmed from a bipartisan law, was never substantively addressed during the campaign. Trump’s secretary of state, Rex Tillerson, was previously the CEO of ExxonMobil, which had lobbied against the rule.
Opponents have said there is little evidence that disclosing the payments does anything to disrupt corruption.
“Unlike the potential benefits, though, the costs are reasonably certain,” Sen. Mike Crapo of Idaho, the Republican chairman of the Senate banking committee, said this year on the Senate floor. He cited SEC estimates, before the agency made the rule public, that it would cost companies up to $590 million annually.
“I have repeatedly stressed the need for the U.S. financial system and markets to remain the preferred destination for investors throughout the world, and this rule harms this status,” Crapo said.
Advocates have questioned the $590 million figure, noting that the most recent SEC rule included a provision that allowed companies to seek a waiver of the disclosure requirements on a case-by-case basis.
Sen. Bob Corker of Tennessee, the chairman of the Senate Foreign Relations Committee, was one of several Republicans who wrote the SEC in February that the rule would put U.S. companies “at a significant and unacceptable competitive disadvantage.”
The lawmakers wrote that they were committed to encouraging “corporate transparency,” and would work with the agency on rewriting the rule.
Corker declined through a spokesman to comment on whether that process had begun, or whether the SEC responded to the letter.
The Congressional Review Act, proposed by Newt Gingrich in the House Republicans’ 1994 “Contract with America” and signed into law two years later by Democratic President Bill Clinton, prohibits federal agencies from reissuing a repealed rule in “substantially the same form.”
But because the procedure has been used only once, the meaning of “substantially the same” has not been tested in court.
Analysts say they believe the Cardin-Lugar rule could give courts the opportunity to weigh in on that issue, and could have an impact on how departments approach rewriting other regulations struck down under the process.
“There’s no precedent,” said University of Pennsylvania law professor Cary Coglianese, director of the Penn Program on Regulation.
The lack of clarity, he said, underscores a weakness of the Congressional Review Act: It limits the ability of lawmakers and the White House to write the rules in a way they feel is more fair.
“This is really a clunky tool for policymaking,” Coglianese said. “This isn’t Congress saying, ‘Let’s try to rethink this, let’s try to do better.’ No. It’s Congress saying, ‘Let’s kill it, let’s shut it down, consequences be damned.’?”
Officials at the Departments of Interior, Labor, and Education — which drafted most of the other regulations struck down this year — either did not respond or declined to say whether they intended to rewrite the rules.
When Bush killed the ergonomic regulation in 2001, the Department of Labor let the issue drop. But that isn’t an option for the SEC on the Cardin-Lugar rule, Cardin and others say, because the underlying law requires a regulation. If the agency declines to rewrite the rule, it will likely be sued.
The antipoverty group Oxfam America successfully sued the SEC after it failed to finalize the same regulation in 2014. Isabel Munilla, an Oxfam senior policy adviser, said the group would not rule out another suit to force the issue again.
“The SEC is kind of in a pickle because they have a range of statutes that apply to this work, and they have to balance them,” Munilla said. “From an objective perspective, that is a challenge for the SEC no matter who the leadership is.”
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