The greatest concentration of regulatory power is housed in a little known office deep inside the executive branch's bureaucracy. In the Office of Information and Regulatory Affairs, 50 staffers review all agency-proposed federal regulations and approve or reject all the "economically significant" rulemakings proposed by agencies under the president's authority. This enormous concentration of power attracts lobbyists like a magnet.
Because of OIRA's central role, presidents have issued a series of directives intended to quiet critics who complain that OIRA's decisionmaking -- and the influence peddling that surrounds it -- is hidden in the shadows and more responsive to politics than good policymaking. The most notable directives are Executive Order 12866 (September 1993), which requires agencies to disclose changes made to proposed rules after OIRA review, and an October 2001 OIRA memo, which extended EO 12866 to require disclosure of substantive meetings and contacts with outside parties in additional circumstances. In practice, however, compliance has been spotty and these directives have been loosely interpreted.
A new report from the Center for Progressive Reform [PDF] lays out these problems in detail, based on its examination of OIRA meetings over the decade between October 2001 and June 2011. Among the findings, OIRA has "routinely flouted" disclosure requirements and deadlines, most notably through the "the nondisclosure of communications between OIRA and the agencies." In addition, OIRA has moved much of its work to the pre-proposal stage, holding 43% of meetings with outside interests "before the agency's proposal was released to the public." CPR makes several transparency recommendations, including requiring the online posting of all written communications between OIRA staff and the originating agency, and the online publication of all changes demanded by OIRA (plus the original version of the rule submitted to OIRA and its final version).
It's not just CPR that has found OIRA's process lacking. The U.S. Government Accountability Office, the federal government's watchdog, has documented OIRA's transparency failings in several reports, most notably this April 2009 report, which follows up on this September 2003 report. OIRA only implemented one of OIRA's eight transparency recommendations. Among the concerns that GAO raised that are still unaddressed are the following recommendations to OIRA:
- Define the transparency requirements applicable to the agencies and OIRA in Executive Order 12866 in such a way that they include not only the formal review period, but also the informal review period when OIRA says it can have its most important impact on agencies’ rules.
- Reexamine OIRA’s current policy that only documents exchanged by OIRA branch chiefs and above need to be disclosed because most of the documents that are exchanged while rules are under review at OIRA are exchanged between agency staff and OIRA desk officers.
- Establish procedures whereby either OIRA or the agencies disclose the reason why rules are withdrawn from OIRA review.
- Define the types of “substantive” changes during the OIRA review process that agencies should disclose as including not only changes made to the regulatory text but also other, noneditorial changes that could ultimately affect the rules’ application (for example, explanations supporting the choice of one alternative over another and solicitations of comments on the estimated benefits and costs of regulatory options).
- Instruct agencies to put information about changes made in a rule after submission for OIRA’s review and those made at OIRA’s suggestion or recommendation in the agencies’ public rulemaking dockets, and to do so within a reasonable period after the rules have been published.
- Encourage agencies to use “best practice” methods of documentation that clearly describe those changes.
The entirety of OIRA's transparency problems are within the president's power to fix. With this administration's stated commitment to transparency, and its particular concerns about the undisclosed or disproportionate influence of special interests, its full implementation of the existing presidential directives would have a salutary effect. Building on those directives to create a downloadable online disclosure database that is linked to the relevant regulations would be a demonstration of vision and leadership.
However, if the White House is unwilling to take up this mantle, Congress should act to make sure that rulemakings represent the best policy decisions, not those who have the best access to the rulemakers. For more, watch this recent discussion with former senior OIRA administrators, the author of the GAO reports, and the head of Public Citizen.