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Rolling Stone (May 5, 2005), Apr. 21, 2005


With a vote of hand-picked lobbyists, the president could terminate
any federal agency he dislikes

By Osha Gray Davidson

If you've got something to hide in Washington, the best place to bury
it is in the federal budget. The spending plan that President Bush
submitted to Congress this year contains 2,000 pages that outline
funding to safeguard the environment, protect workers from injury and
death, crack down on securities fraud and ensure the safety of
prescription drugs. But almost unnoticed in the budget, tucked away in
a single paragraph, is a provision that could make every one of those
protections a thing of the past.

The proposal, spelled out in three short sentences, would give the
president the power to appoint an eight-member panel called the
"Sunset Commission," which would systematically review federal
programs every ten years and decide whether they should be eliminated.
Any programs that are not "producing results," in the eyes of the
commission, would "automatically terminate unless the Congress took
action to continue them."

The administration portrays the commission as a well-intentioned
effort to make sure that federal agencies are actually doing their
job. "We just think it makes sense," says Clay Johnson, deputy
director for management at the Office of Management and Budget, which
crafted the provision. "The goal isn't to get rid of a program -- it's
to make it work better."

In practice, however, the commission would enable the Bush
administration to achieve what Ronald Reagan only dreamed of: the end
of government regulation as we know it. With a simple vote of five
commissioners -- many of them likely to be lobbyists and executives
from major corporations currently subject to federal oversight -- the
president could terminate any program or agency he dislikes. No more
Environmental Protection Agency. No more Food and Drug Administration.
No more Securities and Exchange Commission.

"Ronald Reagan once observed, 'The closest thing to immortality on
this earth is a federal government program," " says Rep. Kevin Brady,
a Republican from Texas who has been working for the past nine years
to establish a sunset commission. "We need it to clear out the

Without many of those programs, however, American consumers, workers
and investors would be left to the mercy of business. "This is
potentially devastating," says Wesley Warren, who served as a senior
OMB official in the Clinton administration. "In short order, this
could knock out protections that have been built up over a

Others note that the provision goes beyond anything attempted by
conservatives in the past. "When you look at this," says Marchant
Wentworth, a lobbyist for the Union of Concerned Scientists, "it's
almost like the Reagan administration was a trial run."

The man behind the sunset commission is Clay Johnson, the most
influential member of Bush's inner circle whom you've never heard of.
The two Texans have been close friends since 1961, when they met as
fifteen-year-olds at Andover prep school and later roomed together for
four years at Yale. When Bush was elected governor of Texas in 1994,
he put the buddy he calls "Big Man" -- Johnson is six feet four -- in
charge of all state appointments. Johnson, a former executive at
Neiman Marcus and Frito-Lay, refers to Americans as "customers" and is
partial to Chamber of Commerce bromides such as "We're in the results
business." He is also partial to giving corporate lobbyists a direct
role in gutting regulatory protections. One of his first acts in Texas
was to remove all three members of the state environmental-protection
commission and replace them with a former Monsanto executive, an
official with the Texas Beef Council and a lawyer for the oil
industry. Overnight, a commission widely respected for its
impartiality became a "revolving door between the industry lobby and
government," says Jim Marston, the senior attorney in Texas for the
nonprofit organization Environmental Defense.

Johnson continued his anti-regulatory efforts in the early days of the
Bush presidency, when he helped place industry champions in positions
throughout the government. As director of OMB, an obscure but powerful
arm of the White House, he has implemented a "Program Assessment
Rating Tool" to evaluate federal programs and cut funding to those
that are "not getting results." In reality, though, Johnson uses PART
to slash government efforts that don't fit the administration's
political agenda. This year's budget eliminates twenty percent of the
programs that were rated most effective, including efforts to improve
the environment and education, and increases funding for programs that
received the lowest possible rating -- including an attempt to reduce
the number of poor people claiming a low-income tax credit.

The evaluations "are based on the whims of White House budget bean
counters," says Gary Bass, executive director of the nonpartisan OMB
Watch. "These are meaningless numbers that do nothing but back up
preordained political conclusions."

The Sunset Commission would go even further. The panel -- which will
likely be composed of "experts in management issues," according to one
senior OMB official -- will enable the administration to terminate
entire government programs that protect citizens against injury and
death. Consider what America might look like if Reagan had wielded
such an anti-regulatory ax twenty years ago. Abolishing the EPA would
have increased air pollution, causing tens of thousands of children to
develop chronic respiratory diseases. Terminating the National Highway
Traffic Safety Administration would have eliminated many protections
we now take for granted -- including air bags, child safety seats and
automatic seat belts. And getting rid of the Occupational Safety and
Health Administration would have forestalled workplace regulations
that have prevented illnesses among millions of farmworkers.

Even if such regulations remain on the books, eliminating entire
agencies would leave no one to enforce them. "And if there's no cop on
the beat, who's going to follow the law?" says J. Robert Shull, senior
policy analyst at OMB Watch.

The first hint of Bush's plan to create a commission surfaced only
weeks after he won re-election last November. At an economic
conference convened by Treasury Secretary John Snow, one panel member
made the case for inserting a sunset provision into existing
regulations. Such a move would "shift the burden of proof onto the
regulations and require us to demonstrate that they're still needed,"
said Susan Dudley, director of regulatory studies at the Mercatus
Center, a free-market think tank based in Washington, D.C.

It's fitting that the first public mention of Bush's plan came from
Mercatus. The center's "regulatory studies program" was founded by
Wendy Gramm, the wife of former Texas Sen. Phil Gramm and the woman
Reagan called "my favorite economist." As a senior official at OMB
under the Gipper, Gramm fought hard to eliminate federal regulations.
Her most notorious victory came in 1992 when, as chair of the U.S.
Commodity Futures Trading Commission, she pushed through a measure
exempting companies that trade in energy derivatives from regulation,
following an intense lobbying campaign by Enron. Gramm resigned from
the commission and accepted a seat on the Enron board of directors,
where she was paid $1.85 million and received donations from the
company to support Mercatus. Enron, meanwhile, used its exemption from
federal oversight to engage in its infamous accounting fraud that
destroyed the company and bankrupted investors.

But such dangers of eliminating regulations have done nothing to slow
Bush's drive for a sunset commission. Given its political gains last
November, the administration is optimistic about winning approval in
Congress. "The stars and the planets are aligned," Johnson recently
declared, citing the solid Republican majority in Congress and the
need to curb the soaring federal deficit.

But there may be a stumbling block. The commission not only threatens
the environment and public health -- it would also violate the
constitutional separation of power between Congress and the executive
branch, enabling the president to dismantle programs created by
lawmakers. "Under the administration's proposal, Congress would
relinquish its constitutional power to legislate," says Rep. Henry
Waxman, a Democrat from California who has been the commission's most
vocal opponent. "Power would be consolidated in the executive branch,
and the legislative role would be emasculated."

Republicans already have a plan to counter such concerns. Under a bill
expected to be introduced soon, the power to appoint the commission
would be given to Congress rather than to the president -- simply
transferring the authority from Bush to his GOP allies on the Hill.
And if the commission is challenged in court, the administration is
likely to drag out the fight until it has firmly established a
conservative majority on the Supreme Court.

Either way, opponents consider the commission a serious threat. "The
end result," says Waxman, "would be a field day for corporate

Copyright 2004 Rolling Stone

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