New Report: Behind Closed Doors at the White House, Obama Administration Politicizes the Regulatory Process

When former Harvard Law Professor and eclectic intellectual Cass Sunstein was named administrator of the Office of Information and Regulatory Affairs (OIRA), conservative, industry-oriented Wall Street Journal editorial writers enthused that his appointment was a “promising sign.” A slew of subsequent events has proved their optimism well placed, as we have noted repeatedly in CPRBlog. 

But nothing beats hard, empirical evidence.  In a report released today, CPR announces the results of an exhaustive six-month analysis of the barebones information OIRA has eked onto the web regarding 1,080 meetings held over a ten-year period (October 2001-June 2011) with 5,759 outside lobbyists, 65 percent of whom represented industry and 12 percent of whom represented public interest groups.  The results were shocking even to us, long-time and admittedly jaded observers of OIRA’s one-way ratchet toward weakening public health and other protections.  

• Obama’s OIRA changes more rules than Bush’s did. The Obama Administration has further entrenched a regulatory system in which White House officials trump agency expertise with decisions based on raw politics. While the Bush Administration changed 64 percent of regulations under this process, the Obama Administration has changed 76 percent.
• Industry dominates the OIRA meetings process. OIRA makes no effort to balance its meeting schedule by hearing from even a rough equivalence of organizations supporting protective regulations.  In only 16 percent of reviews involving meetings did OIRA meet with organizations from across the spectrum of interested groups, while in 73 percent OIRA met only with industry representatives.  These meetings come on top of an already exhaustive public process run by the agencies themselves, involving numerous meetings before a rule proposal is even crafted, multiple rounds of public comments that give a wide range of interest groups the opportunity to file thousands of pages of advice, public hearings across the country, thousands of hours of staff work invested in reviewing the comments and either accepting or rebutting the information they contain, and—last but not least—court review for many major rules.
• OIRA meetings correlate with changes to rules. Rules that were the subject of meetings were 29 percent more likely to be changed than those that were not. OIRA does not disclose its changes, but there is extensive evidence that OIRA functions as a one-way ratchet, exclusively weakening agency rules.
• OIRA is obsessed with the EPA. While rules from the Environmental Protection Agency (EPA) made up only 11 percent of all reviews by OIRA, 41 percent of all OIRA meetings targeted EPA rules.  EPA rules were changed at a significantly higher rate—84 percent—than those of other agencies—65 percent—over the whole ten-year period.
• OIRA routinely misses deadlines, stalling public health and safety protections. By executive order, OIRA has 90 days to review a rule, plus a possible 30-day extension. Of the 501 completed reviews in which outside parties lobbied OIRA, 59 (12 percent) lasted longer than 120 days and 22 extended beyond 180 days (about six months).
• OIRA ignores public disclosure requirements. OIRA is required by executive order to make available “all documents exchanged between OIRA and the agency during the review by OIRA,” and agencies are required to “identify for the public those changes in the regulatory action that were made at the suggestion or recommendation of OIRA.” OIRA never follows those requirements, and the agencies—with the notable exception of the EPA in limited circumstances—don’t either.
• OIRA ignores the limitations on its reviewing authority. An executive order instructs OIRA to focus on “economically significant rules” (those imposing more than $100 million in annual costs), allowing OIRA to extend the scope of its review in very limited circumstances.  In practice, “non-economically significant rules” are reviewed at a ratio of six to one with the rules that should be the primary focus of OIRA’s work.

Despite his selection of experienced and well-respected appointees to lead health and safety agencies—most notably, Lisa Jackson at the EPA, Margaret Hamburg at the Food and Drug Administration (FDA), and David Michaels at the Occupational Safety and Health Administration (OSHA)—President Obama has not made lasting commitments to substantially increase their budgets, has not supported them when they are politically attacked, and done next to nothing to press for updating the outmoded laws that hamper their efforts to police corporate misconduct.  Worst of all, he has continued the Reagan and Bush tradition of enthroning OIRA as the final arbiter of whether public health and environmental protections see the light of day. 

Centralized White House regulatory review shoves policymaking behind closed doors, wastes increasingly limited government resources, confuses agency priorities, demoralizes civil servants, and, worst of all, costs the nation dearly in lost lives, avoidable illness and injury, and destruction of irreplaceable natural resources.