What does President Joe Biden believe on regulatory policy? It is striking that after 20 months of his administration, we still do not know. Unfortunately, rather than shed light on this crucial issue, tomorrow’s Senate confirmation hearing to consider the nomination of law professor Richard Revesz as the next administrator of the White House Office of Information and Regulatory Affairs (OIRA) is likely to raise more uncertainty. This, in turn, will make it harder for Biden to defend his regulatory agenda going forward, both in the hostile federal courts and the “gettable” court of public opinion.
But it didn’t have to be this way. Early in his administration, Biden had a golden opportunity to do something that the American political left has failed to do for 40 years: stake out a positive vision of regulation in our democracy and our economy. He had memorably teed up the issue with his memorandum on “Modernizing Regulatory Review,” which promised to overhaul how OIRA reviewed pending rules and how agencies would evaluate those rules. At the time, I characterized the memo as having “the potential to be the most significant action Biden took on day one.”
For almost two years, though, the Biden administration has squandered that potential — an unforced error that could be one of its most enduring legacies on domestic policy. In retrospect, this shouldn’t have been a surprise. The Modernizing Regulatory Review memo itself seemed to be crafted as a kind of ink blot test, permitting everyone to see in its vague and at times contradictory provisions whatever they wanted to see. And with the deafening silence that has followed the memo’s release, the administration has continued to allow everyone to define its own regulatory vision for it.
This dynamic is certain to continue during Revesz’s confirmation hearing, where the conservative members of the committee will seek to portray the Biden administration’s regulatory agenda in overwrought and blatantly inaccurate terms. They will no doubt use these false claims to attack the regulatory system more broadly and to justify their legislative proposals for permanently kneecapping the regulatory system so that it is no longer able to deliver the essential safeguards that the public expects and deserves.
Biden, of course, could have averted all of this by setting forth a progressive vision of the regulatory system and by using implementation of the Modernizing Regulatory Review memo as a vehicle for institutionalizing this vision in a durable and meaningful fashion. His regulatory agenda was always going to face stiff opposition from small government ideologues and corporate special interests, and from the decades of accumulated “conventional wisdom” that had mischaracterized regulation as a necessary evil, at best.
By failing to build a principled foundation for that agenda — by failing to weave some overarching narrative that explains in a clear and compelling manner how it is using the power of the presidency to make our lives better — the Biden administration has made the already difficult challenge of achieving its policy goals through regulations even harder.
Critically, Revesz’s hearing could have and should have provided a powerful platform for proclaiming and amplifying that progressive vision of regulation.
I have no doubt Revesz will be a good OIRA administrator — likely the best in the history of the agency. I expect that under his watch, rules will be cleared expeditiously and many will even emerge stronger — rather than weaker — as a result of the OIRA process. These are all outcomes that would have been unthinkable in the past.
But as an advocate for a stronger regulatory system — one that is more robust, responsive, and inclusive — it is not my job to worry about the past, or even just about the remainder of the Biden administration. I, like all advocates of progressive regulatory policy, have to worry about what happens after the Biden administration. And that means we need some indication that the current administration intends to leave OIRA and the institution of regulatory review substantially better off than it found it. Based on my experience over the last 20 months, I have very little confidence left that this will take place. The potential I once celebrated has been squandered. And I doubt very much that anything that is discussed during Revesz’s confirmation hearing will shake me of my pessimism.
The American political left has a long history of being its own worst enemy on regulatory policy. The Revesz hearing will go simply down as another chapter in that history.
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