Suzy Khimm of the Washington Post reports on a meeting held yesterday under the auspices of the Sunlight Foundation’s Advisory Committee on Transparency. The meeting arrayed the usual defenders and opponents of OMB’s Office of Information and Regulatory Affairs.
In other words, it appears to have plowed no new ground.
Centralized review of Executive branch regulations has been in place since early 1981. President Carter had just signed the Paperwork Reduction Act establishing OMB’s Office of Information and Regulatory Affairs. President Reagan issued Executive Order 12291 to create the review process, terminated the Council on Wage and Price Stability andtransferred the COWPS regulatory review personnel to the new OIRA.
In 1993, President Clinton signed Executive Order 12866, thereby cementing the bipartisan nature of presidential review, albeit in a much diminished format. (Whereas OIRA reviewed all regulations under Executive Order 12291, under the Clinton Order its review was limited to about 10% of them.) President Bush made minor changes to the Clinton process (Executive Order 13258 and Executive Order 13422). President Obama also made some changes at the margin (Executive Order 13563), but the general structure established in 1993 remains in place.
So why does OIRA review continue to elicit so much apparent controversy? Three reasons dominate, and nothing the Advisory Committee on Transparency might try to do would address any of them.
1. The Inherently Adversarial Relationship between the Legislative and Executive Branches
The purpose of OIRA review is to enable the president to effectively manage the rulemaking activities of the Executive branch. Where Congress delegates legislative authority — that is, the authority to promulgate regulations — presidents believe that it is they who are constitutionally empowered to “take care that the laws are faithfully executed,” not their appointees. Thus, OIRA’s broad purpose is to ensure that agency heads exercise their legislative discretion in ways consistent with the views of the president.
Unsurprisingly, congressional leaders have opposed this because they view Executive branch agencies as accountable to them, not to the president. When they write legislation stating that the Secretary of Department X shall do Y, they expect Secretary X to do Y independent of the president. And therein lies the inherent conflict between the two political branches.
2, Partisan Politics
During the Reagan and Bush 41 administrations, OIRA was routinely subjected to congressional accusations that it was interfering with the prerogatives of the heads of Executive branch agencies, just as described above. However, this criticism essentially vanished after President Clinton was inaugurated. It returned somewhat after the 1994 mid-term elections when Republicans regained control of the Senate and gained control of the House of Representatives for the first time in 40 years. It subsided again during the Bush 43 administration, then returned again when Democrats regained control of Congress after the 2006 election. To the extent that congressional criticism returned after the 2010 election, it has been a complaint that OIRA no longer does the job it was established to perform. But this misses the point: OIRA’s role depends exclusively on what its one client wants; that client is the president.
In any case, congressional criticism of OIRA follows a pattern that is much more consistent with partisan politics than genuine constitutional conflict. Congress could eliminate the specter of constitutional conflict by simply foregoing the practice of delegating the hardest policy choices to the Executive branch. Simply, but not easily.
3. The Limited Value of the Administrative Procedure Act
That’s also true for myriad interest groups, many of whose members serve on Sunlight’s Advisory Committee on Transparency, that are allied with one or the other political party. Their criticisms of OIRA review are likely to reflect these partisan interests. What they have in common is shared comfort and fear — comfort gained from access to the OIRA review process when their party holds the presidency, and fear that that they will be excluded when the other party does. The professionalism of the OIRA career staff is irrelevant; they are either themselves excluded from decision making by senior White House staff, or they are under orders to make changes that White House staff want.
What happens during OIRA review is not entirely beyond scrutiny by Congress, though it tends to scrutinize OIRA ineffectively at best, and clearly beyond the reach of the courts. What goes on at political levels within the Executive Office of the President is particularly inscrutable. But the main reason why is the Administrative Procedure Act has not kept up with changes in federal administrative practice. The APA certainly makes rulemaking more time consuming, but it does not erect any substantive quality standards that agencies must meet. Almost any “reasoned basis” for decision making is enough. The test of a good agency general counsel is an ability to deter litigation over regulations and win the litigation that cannot be avoided.
Would Greater Transparency within OIRA Solve this Problem?
It is hardly surprising that the goals of the Advisory Committee on Transparency at least implicitly include greater transparency within OIRA. This is the kind of goal that both sides can pretend to support. Committee members can demand transparency of presidents of the opposite party without ever intending to be transparent when their party holds the office.
If any bona fide common ground exists, however, it will have to grounded in three uncomfortable facts. First, presidents regardless of party will insist on having the last word with respect to how legislative authority delegated by Congress is interpreted and implemented. That means both sides have to abandon the idea that presidents of their own party should be dynamic leaders and presidents of the opposing party should be mere figureheads.
Second, presidents need information that is independent and reliable. There is no reason why presidents (or anyone else) should ever trust without verification information provided by the regulatory agency that is its advocate. This obviously includes, among other things, risk assessment and regulatory impact analysis prepared in support of regulation. As a practical matter, risk- and benefit-cost analysts employed by an agency owe their allegiance to the agency — not to the president or some abstract notion of the public interest. There is a lot of value in this abstract notion, and historically the job of providing objective analysis was delegated by presidents to the OIRA staff. Yet there is nothing sacred about this. Presidents may prefer that the OIRA staff do other things besides provide independent analysis in accordance with objective quality standards.
And that leads to the the third uncomfortable fact: Whatever the OIRA staff is directed to do, it must be able to do it confidentially.That doesn’t mean the president could not decide to make OIRA reviews and analyses public. Indeed, every president since Reagan has had the authority to disclose anything and everything about OIRA review. None has done so, which pretty much confirms that it is exceedingly unlikely that any president will agree to relinquish confidentiality.
If OIRA is compelled to publicly disclose its advice, it will no longer have any value to the president. Some of OIRA’s opponents may actually desire this outcome, but it is based on a naive misunderstanding of the modern presidency. If OIRA did not exist, every president would want to create one. If OIRA were hamstrung by disclosure requirements, the next president would have to create a new one that isn’t.
In short, transparency is every political actor’s preferred way for every other political actor to behave.
From the Advisory Committee on Transparency website:
The Committee’s goals include:
- Promoting transparency in all institutions of the federal government, including Congress, by making the work of government available to the public on the Internet.
- Maximizing the openness of government and participation by the people.
- Preventing and rooting out corruption and the appearance of corruption.
- Fostering improved oversight of government decisions and actions.
- Reducing opportunities for and occurrence of waste, fraud and abuse in all branches of the government.
- Developing standards for openness, transparency, and accountability.
- Providing a forum where concerns about transparency may be raised.
- Promoting the education of members of Congress and their staff on transparency-related issues.