Last week, The Washington Post ran a story about regulation, headlined, “Regulators surge in numbers while overseers shrink.” The story came from Bloomberg and was written by reporter Andrew Zajac. The headline captures the thrust of the piece. Zajac writes:
As the U.S. government’s regulatory bureaucracy has ballooned, one agency has been left behind: the office that oversees the regulators. The number of people working in federal agencies with regulatory authority has doubled to about 292,000 under both Republican and Democratic administrations during the past 30 years.
Yesterday, the Columbia Journalism Review dismantled the story’s premise in the kind of takedown that ought to prompt the Post not just to run a correction, but to reconsider the way it reviews future Bloomberg stories on the subject before it prints them.
The takedown comes from Ryan Chittum, writing for CJR’s “The Audit on the Business Press.” Its headline also tells the tale: “Inflating the regulatory state: TSA and border security account for almost half of the increase in the regulatory staff since 1980.”
The regulatory bureaucracy has ballooned? That doesn’t sound right. The federal workforce, after all, is down over the last 40-plus years, and places like OSHA are shadows of their former selves.
Then he goes on to do what it would appear the Bloomberg and Post editors did not: He actually looked at the data cited in the original story. That revealed:
More than 83 percent of the new regulatory-agency jobs since 1980 came in the Department of Homeland Security, and almost all of those DHS jobs were created after 2000. That spike came when the Bush administration and Congress federalized private airport security in the wake of the catastrophic failure on 9/11. The Transportation Security Administration accounts for 60,000 of those 145,000 new regulatory jobs. Meantime, ramped-up border security—most of it since 9/11, accounts for another 61,000.
Quasi-defense jobs are hardly what most people think about when they talk about regulators. And Bloomberg’s story is about who oversees the rulemakers, not the guy checking your driver’s license at LAX.
The data come from a study co-authored by Susan Dudley, Administrator of the White House Office of Information and Regulatory Affairs (OIRA) in the latter part of the George W. Bush Administration and now a professor at George Washington University. OIRA is the office that supposedly “oversees” the regulatory agencies. Dudley runs with her numbers in the Bloomberg story, saying that she thinks the comparison between the “growth” of regulators and the static size of the OIRA staff “tells a valid story about the resources devoted to developing and implementing regulations versus the resources devoted to checking or constraining them.”
Bloomberg doesn’t bother to check the numbers or allow for a dissenting view, so it’s helpful that CJR took the time to do the math. But, as the inflated numbers concerning post-9/11 TSA and border security hires indicate, Dudley’s “valid” story isn’t actually valid upon inspection.
There’s another fallacy in the article, too, also in the lede. OIRA certainly has a significant role in the regulatory process—not always a constructive one, but a significant one—but “overseeing” the regulatory agencies isn’t its job. When it comes to writing regulations to enforce laws, the agencies’ obligation is to the statutes themselves, not to a group of White House staffers. It’s true that the Administrator of the EPA, for example, serves at the pleasure of the President. But the statutes delegate regulatory authority to the Administrator of the EPA, for example, not to the President, and certainly not to OIRA. That may sound like a distinction without a difference, but it’s not. If EPA or some other agency wanted to adopt a regulation over the objections of OIRA, it would be within its statutory authority. The head of the agency might pay with his or her job, but the power to regulate still rests with the agency, not the White House.
By contrast, OIRA’s authority comes from an Executive Order, not a statute. It lays down timelines for OIRA review of regulations and for the cost-benefit analyses done as part of the agencies’ review. But the executive order doesn’t—and can’t—trump the authority granted to the agencies by statute.
So the Bloomberg story is wrong to suggest that OIRA is the agencies’ supervisor. It may seem that way, but only because OIRA and the White House get away with it. And, of course, one reason they get away with it is that news services like Bloomberg treat OIRA’s penchant for substituting its inexpert judgment on the substance of regulations for the informed judgment of the agencies themselves as if it were a perfectly normal, reasonable, even traditional exercise in governance. Nothing to see here, move along.
Since the House GOP began its push two years ago to persuade Americans that the problems with the economy are the product of Obama Administration regulatory overreach, and not the 2008 economic crash that resulted from their own deregulatory policies, we’ve seen lots of media stories that flow from the premise that the nation is overregulated. The same stories rarely acknowledge the very real benefits of regulations — safer cars, breathable air, potable water, safer workplaces, and so on. (I took a previous Bloomberg story to task on such grounds just a couple months ago, in fact.) It’s no surprise to see a Bloomberg story that falls for the GOP line. It’s aimed at a business audience, and sees the world through a business lens, sometimes at the expense of other viewpoints, and occasionally at the expense of facts themselves.
But the The Washington Post is a different story. Government is its bread and butter, its hometown business. It owes its readers better than a story that blithely distorts facts to suit a partisan talking point, particularly on a topic like regulation that should be right in its wheelhouse.