An extraordinary but almost hidden centralization of power is taking place in Washington. Less than a month after his inauguration, President Reagan issued an executive order that overturned some 35 years of practice under the Administrative Procedures Act and was as radical an act in the area of government rule-making as the congressional approval of the Reagan budget was in the area of government spending.
In essence, Executive Order 12291, issued on Feb. 17, requires that all regulations prepared by executive agencies be cleared by the White House Office of Management and Budget before they are promulgated or even released for public comment.
If OMB is dissatisfied with an agency's regulation, it can continue its review indefinitely. In short, the president, through OMB, effectively can exercise veto power over the issuance of executive agency regulations.
To some extent the president's intent is laudable and supportable, with certain conditions.
We need public and political accountability in the rule-making process. We need someone to blame and someone to look to for results. And we need a way in which we can avoid unnecessary duplication and inconsistency.
Most of all, we need to make sure that the inevitable "tunnel vision" of agency personnel that comes from being identified as "the protector" of any particular interest area is countered somewhere along the line by someone who is obligated to fit all of those interests into an overall framework and pattern.
But if we are going to allow this experiment to proceed, we in Congress and the public need to know how it is being conducted and whether the results are beneficial. So far, we've been closed off from this information.
Since February, OMB has refused to approve at least 55 regulations. It has returned them to the agencies for "revision" and in some cases, I would suspect, demise. Our requests in Congress to obtain OMB's reasons for taking the action it did on these regulations have been tenaciously resisted. OMB has also opposed a requirement that its comments relative to a proposed regulation be disclosed to the general public.
This secret and hidden approach bothers me. Regulatory agencies were created to carry out the legislative will of Congress, and denying Congress access to information on which decisions are based dangerously shifts the delicate balance of power between the two ends of Pennsylvania Avenue.
I'm even more concerned about the broader process issues raised by this unchecked and unaccountable power of OMB. We all recognize that any decision is the product of a host of pressures, some substantive, some political and some personal. The possibility of unwanted pressures under this executive order is increased by the fact that OMB has invited private parties to contact it when rule-making "problems" arise. This event only increases our need to keep the rule-making apparatus as it was designed to be: as open as possible, on the theory that public scrutiny will minimize improper influences.
In order to protect the openness of the rule-making process in light of OMB's new role as "super-regulator," we must require that OMB adhere to some basic disclosure requirements.
The public should be able to see draft rules sent to OMB by the regulatory agencies, so it can know the position of the rule-making agency before OMB involvement, and the public should have access to comments made by OMB to the agencies.
Unless OMB's role in the rule-making process is open and on the record, we will be denying Congress its appropriate oversight role, and more importantly we will be denying the public its basic right to petition government effectively. The result will be no less than a highly significant institutional shift in the balance of power between the executive and legislative branches and a serious erosion of our democratic principles.