For all the partisan gridlock on Capitol Hill, U.S. Sen. Mike Lee (R-Utah) and two former senators said they weren't expecting another government shutdown as Congress prepares to grapple with new budget issues in the coming months.
With the approach of the 2014 election cycle, Lee said Congress wasn't likely to take up much big-ticket legislation, particularly on controversial subjects. Lee, speaking on a panel at the National Law Journal's Regulatory Summit, expressed optimism about getting a bipartisan patent litigation reform bill approved in 2014.
Lee and his fellow panelists, former Sen. Norm Coleman and former Sen. Byron Dorgan, agreed the U.S. Environmental Protection Agency would likely be at the heart of significant regulatory controversies next year, from the regulation of carbon emissions to new applications of the Clean Water Act.
Carbon emission regulation is "going to be a very significant issue—I think a hard-fought issue," said Dorgan, a former democratic senator from North Dakota who now serves as a senior policy advisor at Arent Fox.
Lee disputed Republicans were to blame for gridlock in Congress, saying they attempted to reach a compromise to avoid the October shutdown. Republicans proposed a series of measures, he said, that would have allowed the Senate to fund the government while defunding or at least deferring a decision on funding President Barack Obama's signature health care reform law.
If there was less compromise, Lee said, it was because Democrats were less likely to negotiate knowing they could rely on executive branch agencies to take action through regulation. He said he was in favor of regulatory reform that would require congressional and executive approval of new rules that carried compliance costs in excess of $100 million.
"It's not that agencies are in the normal circumstance are acting unilaterally," Lee said. "It's that the delegation of authority itself is, I think, constitutionally problematic when the regulatory product at the end of the day is something that carries the effect of public law."
Dorgan refuted the notion that Democrats embraced inaction—knowing that the White House and federal agencies could craft regulations on their own.
"It's far better to do these things legislatively because most of them cannot be done in significant ways through regulation," he said. Dorgan said legislators who came to Congress saying they wouldn't compromise—pointing to Sen. Ted Cruz (R-Texas) as an example—affected the operation of the whole Senate.
"We need a Congress that can take a look at these problems square in the eye and address them with some courage," he said.
Coleman, a former Republican senator from Minnesota now working as of counsel at Hogan Lovells, said he'd like to see Congress come together on energy regulation, given the surge in energy production in the United States.
Still, Coleman said it was hard to look ahead when agencies were already behind when it came to rule-making. He noted that more than half of the regulations associated with the Dodd-Frank Act hadn't been issued yet and nearly three dozen rules related to the Affordable Care Act were still in the works.
Lee said he didn't think the upcoming battles in Congress over approving a new federal budget and the debt ceiling would slow down the "regulatory machine." He expressed concern about the growing trend in Congress of "government by cliff"-passing legislation at the last moment before a deadline expired.
"It happens all the time and it's got to stop," he said.
National Law Journal photo by Diego M. Radzinschi. From left, National Law Journal editor-in-chief Beth Frerking, Sen. Mike Lee, Byron Dorgan, Norm Coleman and NLJ reporter Todd Ruger.