Where are President Joe Biden’s regulatory process reforms? That’s the question many progressive advocates have been asking since the administration released its Day One memo inaugurating a “process with the goal of producing a set of recommendations for improving and modernizing regulatory review.” Two years later, this process remains in limbo.
The wait may soon be over, thanks to the Senate’s recent confirmation of Richard Revesz, who is now serving as the administrator of the White House Office of Information and Regulatory Affairs (OIRA). Because OIRA is charged with conducting centralized regulatory review and is leading the reform effort, many had speculated that a lack of a Senate-confirmed OIRA head was a major contributing factor in the reforms’ delayed rollout.
As we look forward to the release of the Biden administration’s regulatory reforms, these are some things worth keeping in mind:
Don’t be deterred by the wonkiness — these reforms are really important. When the memo was released, I predicted that it had the “potential to be the most significant action Biden took on day one.” I stand by that claim. The regulatory system remains one of the most critical tools available to the administration for achieving its policy objectives. That is especially true now, as administrative agencies face the daunting task of implementing two major infrastructure bills: the Infrastructure Investment and Jobs Act and the Inflation Reduction Act. Also, because the return of divided government squelches prospects for new, constructive legislation, the administration will have to rely heavily on its regulatory agenda.
Time is quickly running out for agencies to complete rules before the end of Biden’s first term, and the existing rulemaking process has become too cumbersome. If done well, though, the Modernizing Regulatory Review reforms could help agencies move proposed rules through approval pipeline more quickly. Also, a better review process could help agencies navigate the hostile federal judiciary and defend their rules against major questions doctrine attacks.
How “people-centered” are the reforms? Our regulatory system works best when people, not well-heeled corporate special interests, are its guiding star. For too long, though, the centralized review process that OIRA oversees has undermined this goal by focusing on abstract concepts like “marginal costs” and “maximized economic growth” that are difficult to understand and act upon and ultimately weaken protections.
With its Modernizing Regulatory Review initiative, however, the administration has a unique opportunity to get regulatory policy back on the right track — to put the “public” back into “public policy,” if you will. The administration should reform how regulatory analysis is conducted so it is accessible to everyone, not just experts and corporate lobbyists. What’s more, regulatory analysis should clearly communicate how rules impact people, their lives, and their communities. Traditional cost-benefit analysis does none of these things.
Do the reforms put agencies back in charge of regulatory decision-making? The last several decades have seen the regulatory system’s center of gravity shift from federal agencies to the White House, as presidents from both political parties accumulated greater authority over regulatory decision-making. This pattern has played out despite the fact that Congress has assigned decision-making authority to agencies and that agencies have greater expertise and experience in the complex policy issues involved.
OIRA’s centralized review process and its use of cost-benefit analysis are two driving forces behind this shift. One of Biden’s goals should be to repatriate decision-making authority where it belongs: at expert agencies. He can do this by limiting the scope and intrusiveness of the regulatory review process and by deferring to agency judgment on legal and policy matters.
Do the reforms increase the transparency of the OIRA regulatory review process? For too long, OIRA’s centralized regulatory review process has been the least transparent stage in the rulemaking process. Not surprisingly then, it has also become the place where many of the most controversial decisions and closed-door special interest lobbying occur. The policies governing the transparency of the rest of the regulatory process are meaningless unless and until OIRA review is brought up to the same standard.
The Biden administration can take such steps as affirmatively disclosing all the written and spoken communications involving OIRA staff during the review of a particular rule (and fully waiving any applicable exemptions under the Freedom of Information Act that might otherwise be interpreted as preventing such disclosures). These disclosures should include any meetings that OIRA staff conduct with members of the public — the so-called Executive Order 12866 “lobbying meetings.” Better still, the administration should abolish these lobbying meetings altogether.
There will, of course, be a lot to say when — if — the administration finally releases its regulatory review reforms. But these are complex issues, and it can be easy to lose sight of the big picture amid the wonky details. Hopefully, highlighting what is at stake in these reforms will help observers make sense of them, evaluate them, and, ultimately, hold the Biden administration accountable for them.
