White House delayed enacting rules ahead of 2012 election to avoid controversy

December 14, 2013

The White House systematically delayed enacting a series of rules on the environment, worker safety and health care to prevent them from becoming points of contention before the 2012 election, according to documents and interviews with current and former administration officials.

Some agency officials were instructed to hold off submitting proposals to the White House for up to a year to ensure that they would not be issued before voters went to the polls, the current and former officials said.

The delays meant that rules were postponed or never issued. The stalled regulations included crucial elements of the Affordable Care Act, what bodies of water deserved federal protection, pollution controls for industrial boilers and limits on dangerous silica exposure in the workplace.

The Obama administration has repeatedly said that any delays until after the election were coincidental and that such decisions were made without regard to politics. But seven current and former administration officials told The Washington Post that the motives behind many of the delays were clearly political, as Obama’s top aides focused on avoiding controversy before his reelection.

The number and scope of delays under Obama went well beyond those of his predecessors, who helped shape rules but did not have the same formalized controls, said current and former officials who spoke on the condition of anonymity because of the sensitivity of the topic.

Proposed federal rules face longer review wait times, lower chance of being enacted

Those findings are bolstered by a new report from the Administrative Conference of the United States (ACUS), an independent agency that advises the federal government on regulatory issues. The report is based on anonymous interviews with more than a dozen senior agency officials who worked with the Office of Information and Regulatory Affairs (OIRA), which oversees the implementation of federal rules.

The report said internal reviews of proposed regulatory changes “took longer in 2011 and 2012 because of concerns about the agencies issuing costly or controversial rules prior to the November 2012 election.”

Emily Cain, spokeswoman for the Office of Management and Budget, said in a statement that the administration’s “approach to regulatory review is consistent with long-standing precedent across previous administrations and fully adheres” to federal rules.

Administration officials noted that they issued a number of controversial rules during Obama’s first term, including limits on mercury emissions for power plants and Medicaid eligibility criteria under the Affordable Care Act.

“OMB works as expeditiously as possible to review rules, but when it comes to complex rules with significant potential impact, we take the time needed to get them right,” Cain said.

But Ronald White, who directs regulatory policy at the advocacy group Center for Effective Government, said the “overt manipulation of the regulatory review process by a small White House office” raises questions about how the government writes regulations. He said the amount of time it took the White House to review proposed rules was “particularly egregious over the past two years.”

Previous White House operations have weighed in on major rules before they were officially submitted for review. But Jeffrey Holmstead, who headed the EPA’s Office of Air and Radiation in the George W. Bush administration, said the effort was not as extensive as the Obama administration’s approach.

“There was no formalized process by which you had to get permission to send them over,” Holmstead said, referring to rules being submitted to the White House.

The recent decision to bring on Democratic strategist John Podesta as a senior White House adviser is likely to accelerate the number of new rules and executive orders, given Podesta’s long-standing support for using executive action to achieve the president’s goals despite congressional opposition.

Sen. Richard Blumenthal (D-Conn.), who chairs the Judiciary Subcommittee on Oversight, Federal Rights and Agency Action, said he’s concerned about the real-world impact of the postponements in the first term.

“Legal protection delayed is protection denied,” Blumenthal said. “I’ve spoken to officials at the top rungs of the White House power structure and at OIRA and we’re going to hold their feet to the fire, and we’re going to make sure they’re held accountable in a series of hearings.”

The officials interviewed for the ACUS report, whose names were withheld from publication by the study authors, said that starting in 2012 they had to meet with an OIRA desk officer before submitting each significant rule for formal review. They called the sessions “Mother-may-I” meetings, according to the study.

The accounts were echoed by four Obama administration political appointees and three career officials interviewed by The Post.

At the Environmental Protection Agency, for example, a former official said that only two managers had the authority to request a major rule in 2012: then-administrator Lisa P. Jackson and deputy administrator Bob Perciasepe. Perciasepe and OIRA’s director at the time, Cass Sunstein, would have “weekly and sometimes semi-weekly discussions” to discuss rules that affected the economy, one said, because they had political consequences, the person said.

“As we entered the run-up to the election, the word went out the White House was not anxious to review new rules,” the former official said.

Sunstein, who has returned to his post as a Harvard Law School professor, declined to comment.

Several significant EPA proposals were withheld as a result of those meetings, officials said, including a proposal requiring cleaner gasoline and lower-pollution vehicles that had won the support of automakers but angered the oil industry.

That regulation, which would reduce the amount of sulfur in U.S. gasoline by two-thirds and impose fleetwide pollution limits on new vehicles by 2017, was ready in December 2011, said three officials familiar with the proposal. But agency officials were told to wait a year to submit it for review because critics could use it to suggest that the administration was raising gas prices, they said. The EPA issued the proposed rule in March.

Other EPA regulations that were delayed beyond the 2012 election included rules on coal ash disposal, water pollution rules for streams and wetlands, air emissions from industrial boilers and cement kilns, and carbon dioxide limits for existing power plants.

Ross Eisenberg, who serves as vice president of energy and resources policy at the National Association for Manufacturers and has criticized several EPA regulations, noted that in the past year the administration moved ahead with proposals such as the rules on greenhouse gas emissions and boilers.

“The agenda certainly did slow down, but it doesn’t change,” he said.

The administration also was slow to handle rules pertaining to its health-care law. Several key regulations did not come out until after the 2012 election, including one defining what constitutes “essential health benefits” under a health plan and which Americans could qualify for federal subsidies if they opted to enroll in a state or a federal marketplace plan.

The latter focused on what constitutes “affordable.” Treasury proposed a regulation in August 2011 saying an employer plan was affordable as long as the premium for an individual was no more than 9.5 percent of the taxpayer’s household income. Several groups — including labor unions — argued that the proposal did not take into account that the premium for a family plan might be much higher than that standard.

Unions represent a vital part of the Democratic coalition, in part because they help mobilize voters during elections.

The Treasury Department held the proposal back while finalizing all the other tax-credit rules on May 23, 2012. Treasury officials later told those working on the regulation that it could not be published before the election, according to a government official familiar with the decision who spoke on the condition of anonymity because of its sensitive nature. The department made the rule on Feb. 1.

OMB has reduced the length of time that rules are pending this year. The agency has cut the number of rules that were under review for more than 200 days by more than half.

But while the administration is pressing ahead, activists say the delays took a toll. Peg Seminario, director of safety and health for the AFL-CIO, points to an update of the nation’s silica standards proposed Sept. 12 after a long delay. The rule, which would prevent an estimated 688 deaths and 1,585 silica-related illnesses each year, won’t be finalized until 2016.

Jon Devine, a senior lawyer in the Natural Resources Defense Council’s water program, said small streams and wetlands remain vulnerable because of the administration’s foot-dragging. The EPA recently withdrew a proposal to outline what kind of water bodies deserve federal protection that had been pending since February 2012 and announced it would issue a legally binding rule instead.

“What’s disappointing is it leaves waters subject to the existing, weak state of affairs until they get the rule over the final hurdle,” Devine said.

Juliet Eilperin is a White House correspondent for The Washington Post, covering domestic and foreign policy as well as the culture of 1600 Pennsylvania Avenue. She is the author of two books—one on sharks, and another on Congress, not to be confused with each other—and has worked for the Post since 1998.
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