From Classroom to Congress

From Classroom to Congress

July 21, 2015
How one Richmond Law professor approaches a congressional testimony

Richmond Law professor Noah Sachs has just delivered his congressional testimony on the subject of regulatory reform. He’s exceeded his five-minute time limit by 30 seconds, but he’s not too worried about it. In fact, he’s pretty relaxed. That may be because, instead of speaking to a committee of the U.S. Congress, he’s addressing a room of colleagues at Richmond Law School. Sachs has arranged a mock hearing to prepare for his congressional testimony, and Professors Dale Cecka, Andy Spalding, and Jim Gibson are standing in for the members of Congress.

Just four days earlier, the House Judiciary Committee had invited Sachs to testify about how the government administers regulations regarding health, safety, and the environment. Sachs teaches several environmental law classes at the law school and has written extensively on administrative law and environmental regulation. The committee had called the hearing “not to consider any particular bill or piece of legislation,” said Sachs. “The subject was the whole enchilada: how regulations are working in the United States.”

With that broad subject matter and little time before the hearing, Sachs got to work, putting together both written and oral testimonies to deliver to Congress. Sachs decided that his testimony should speak to the value of regulations and the need for improvements in the regulatory process – particularly when it comes to delays in moving from regulatory proposals to final regulations. “I wanted to highlight the real world impacts of delays that occur because Congress and the President keep adding more and more procedures that agencies have to adhere to,” said Sachs. He researched examples to illustrate his point – including one recent rule on construction crane safety that took over a decade to finalize, resulting in an estimated 220 deaths in the meantime.

Working with the other three professors in Room 206 of the law school to prepare for his testimony, Sachs faces some tough questions in this mock hearing. “So you want to eliminate checks and balances that slow down the regulatory process?” asks one professor. “My constituency is telling me that regulatory costs are out of control,” says another.

Sachs cites studies that document that regulatory benefits exceed costs and gives examples of justifiable regulatory costs: “The FAA has regulations to limit the amount of hours pilots can fly without a break,” says Sachs. “Does that raise costs for business? Of course. But is it a sensible regulation, one that protects the public? I think we all agree, yes.” His colleagues say this is a strong point because it speaks to multiple constituencies, and everyone can relate to the example.

The faculty members break character more often than not – when Sachs uses a particularly good turn of phrase, or illustrates a point with an effective example, they ring in with affirmation.

His colleagues discuss the more nuanced aspects of the testimony, too. Is “robust” the best word to use in the opening language, or would “efficient” be more appropriate? Is there a different way to frame the narrative that he is trying to present? Can he find some more examples to have on hand?

The next day, Sachs travels to D.C. for the House Judiciary Committee hearing. He’s the last of a panel of experts to deliver his testimony, and the questions from the committee come immediately, including: “Does the law of diminishing marginal returns apply in the regulatory context, i.e., once basic safeguards are in place, does further improvement require spending increasingly more to achieve increasingly less?”

Sachs doesn’t skip a beat. He says that when a law is working well to protect the public, there is no need to keep adding more regulations. “But what I see in my work is that there are whole areas that are either uncovered by regulation or that are covered by very weak regulations,” he responds.

The whole process takes a couple of hours from start to finish, including a 30-minute break for the representatives to leave the floor to vote. The testimony has been delivered and recorded. But what happens now? “There are always going to be bills coming through the House and the Senate aimed at modifying the regulatory system,” says Sachs. “I think a lot of these are meant to intentionally gum up the works, to make it harder for the agencies to do their jobs.” He adds, “I will keep my eye out for that kind of agenda.” He’ll write about it, and yes, perhaps even testify about it again.