The Obama Approach to Public Protection: The Regulatory Process
When Barack Obama took the oath of office in January 2009, the country faced problems unlike any the country had faced in generations. Each year, food-borne illnesses sickened millions, workplace hazards killed and injured thousands on the job, and air pollution triggered asthma attacks in millions of children and adults. Long procedural delays and political interference in the regulatory process caused deficits in safety and health standards, exacerbating these problems.
President Obama seemed to understand the magnitude of the problems and the need to reestablish a badly needed role for government to provide public protections for the economy, workers, consumers, and the environment.
This report is the third of three OMB Watch reports evaluating the Obama administration's record on regulatory issues. This report focuses on the regulatory process, including transparency and participation, regulatory analysis, scientific integrity, and the role of the White House, especially the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB), in shaping the administration's record. The first report addressed health, safety, and environmental rulemaking at federal agencies. The second report focused on federal agency enforcement.
This report is divided into five chapters. Following the introduction is a brief history and summary of the existing regulatory process. The third section of the report addresses the role of the Obama White House in the regulatory process. Federal agencies' regulatory actions during the first 20 months of the administration are described in the fourth section, including both rulemaking activity and enforcement activity. Finally, there is a brief conclusion.
Findings and Conclusions
The administration set very early a regulatory tone that was far different from that of the Bush administration by appointing talented professionals to head many of the regulatory agencies, restoring badly needed resources to agencies, revoking a Bush executive order that centralized more power in OIRA, and calling for a new regulatory executive order. In short, President Obama created expectations that there would be what he called a "fundamental transformation" of the regulatory process.
In regulatory agencies, a significant philosophical shift is evident. In stark contrast to the Bush administration, the Obama administration has taken its role of protecting the public seriously and has been far more active in pursuing its regulatory responsibilities. Obama’s philosophy regarding the role of government is very different from the Bush philosophy, with many agencies aiming to prevent harm and trying to more aggressively find and police known bad actors.
The administration has not, however, succeeded in changing the process. Obama failed to issue a new regulatory executive order that could have dramatically changed the relationship between the White House, specifically OIRA, and federal regulatory agencies and addressed controversial elements of the process such as the use of cost-benefit analysis. OIRA is operating the same way it has for the last 30 years, focusing on the review of individual agency rules and information collection requests. The Obama administration missed an opportunity to significantly overhaul the regulatory process and create institutional change – an opportunity that is unlikely to come the administration's way again.
In contrast, the Obama administration has clearly adopted an expansive vision for open government unmatched by previous administrations. Throughout the White House and executive agencies, there have been numerous efforts to provide greater government accountability through openness, including a FOIA policy that favors disclosure and an Open Government Directive that is a long-term effort to address transparency, participation, and collaboration in the agencies.
Although OIRA has a leadership role in this openness agenda, its own actions often lag behind other agencies. For example, neither OIRA nor agencies typically make available the communications or edits that occur during the review of a draft proposed or final regulation. It is often nearly impossible for the public to determine what impact OIRA – and/or other agencies participating in the interagency review – have had on a rule. These stages of the regulatory process are still cloaked in secrecy.
In March 2009, Obama raised expectations that a new era of scientific integrity would be ushered in when he issued a memo aimed at restoring the importance of science in the decisions of the federal government. Many agencies, especially those charged with protecting the environment, workers, and public health and safety, rely heavily on scientific studies and conclusions to do their work. Obama’s top science advisor has started to make progress in implementing the 2009 memo, but there is still much work to be done, and more details are needed on how agencies will promote scientific integrity and protect government scientists from undue political influence.
OIRA has taken incremental, positive steps to reform parts of the regulatory process. The office has issued several memos that, taken together, may ease agency compliance with the Paperwork Reduction Act and facilitate agency information disclosure. Evidence indicates that OIRA has allowed agencies more discretion over rulemakings than they have had in the recent past. OIRA now seems to be acting more as a counselor to agencies than a gatekeeper and final arbiter of regulatory decisions – an improvement over the tight control exerted over agencies during the Bush administration.