The Washington PostDemocracy Dies in Darkness

Psst, wanna change the law? Lobby this little-known government office after it’s passed.

Pigeons fly over the intersection of 17th and K streets in Northwest Washington, Thursday, Jan. 26, 2006. K Street bisects the nation’s capital on a route that stretches from Georgetown through the city’s business district into a working-class neighborhood. But “K Street” has long been invoked as shorthand for the monied lobbyists who ply influence in the city from offices scattered along the avenue or nearby. (AP Photo/Charles Dharapak)
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When Americans think about lobbying, they usually think about lobbying legislatures. Take the Affordable Care Act (ACA). According the Center for Responsive Politics, the ACA was one of the most lobbied bills in Congress over the last decade with more than 1,250 organizations registered on more than 5,000 issues.

But what’s missing from this discussion are the hundreds of groups that lobbied an obscure office in the White House to influence the regulations implementing the ACA: the President’s Office of Information and Regulatory Affairs (OIRA). Since the 1960s, the meat of policymaking has steadily shifted from crafting statutes to writing and issuing regulations — and both the news media and a great deal of academic scholarship seems to have missed that shift.

Yet how a law is put into practice can matter almost as much as whether there’s a law at all. We’ve recently seen examples of the power of executive-branch rules and regulations in everything from Obama’s attempt to change immigration policy to the provision of ACA subsidies that led to the recent Supreme Court ruling in King v. Burwell. For example, the Dodd-Frank legislation, which passed in the aftermath of the Great Recession, contained more than 300 provisions that required or authorized new agency rulemaking.

In a forthcoming study in the American Political Science Review, we uncover suggestive evidence that when interest groups lobby OIRA, they influence the legally binding regulations that result. Specifically, we find that when groups send a consistent message to OIRA officials, that rule is more likely to change.

[The week in SCOTUS: Who gets to decide what a law means?]

Why lobby OIRA (and what is it again)?

Why lobby OIRA? OIRA is charged with reviewing “significant” government agency regulations, including those issued by federal agencies like the Department of Health and Human Services, the Department of Education, or the Department of Labor, before they become law.

Take for example the most heavily lobbied rule in our study, the Department of Education’s rule on Gainful Employment Measures. According the rule’s abstract, the rule sought to “establish measures for determining whether certain postsecondary educational programs lead to gainful employment in recognized occupations, and the conditions under which those educational programs remain eligible for the student financial assistance programs authorized under title IV of the Higher Education Act of 1965, as amended.” With enormous financial stakes involved, lobbying groups and OIRA held 17 individual meetings with 43 interest groups and lobbying firms with almost 200 individuals present.

OIRA is also authorized to offer “suggested policy changes” to the issuing agency, so that the agency can modify its rules to better fit “Presidential priorities” and other goals. Most close observers think that agencies rewrite rules to reflect OIRA’s — and presumably the president’s — preferences.

[Cass Sunstein on how government regulations could be a lot simpler.]

Beyond this, we know surprisingly little about how lobbying OIRA actually changes policy.

Does lobbying OIRA change the law?

This stage of regulatory policymaking can be pivotal. We examined all regulations reviewed by OIRA from January 2005 through June 2011. We find — using plagiarism software, similar to what a college professor might use to check for violations across student papers — that (1) draft Final Rules that agencies submit to OIRA for review and (2) Final Rules promulgated after OIRA’s “suggested changes” often differ substantively. In other words, agencies appear to rewrite the rules — and therefore, reshape the law — based on OIRA’s suggestions.

Of course, many rules receive no lobbying while OIRA is reviewing them. But when interest groups do lobby OIRA about a rule, OIRA is more likely to suggest changes to that rule. What’s more, when only business groups lobby — unopposed by public interest groups — the rule is especially likely to change. For example, a rule titled “Nondiscrimination on the Basis of Disability in Air Travel” saw lobbying only by major airlines, as well as their trade association. Numerous changes occurred between the draft and the final rule, including the exemption of certain aircraft from the requirement to provide an on-board wheelchair, laxer requirements regarding which parts of a terminal need to be accessible to individuals with disabilities, and a restriction of the number of armrests on an airplane that need to be movable.

We did not find similarly strong effects when public interest groups lobby unopposed, which only occurred in a handful of cases.

Both news stories and scholarly research too often ignore how much corporate, political, and interest groups can affect laws after they’re passed. The president shapes the law through a variety of strategies like OIRA’s review of agency regulations. And lobbyists know it — and don’t give up their pursuit until the final regulations emerge. Most media and scholarly accounts miss the significant shift that has occurred from statutory to regulatory policymaking since the 1960s. If you’re interested in understanding how the statutory sausage is made, keep your eyes on rulemaking, all the way through the president’s OIRA review process for agency regulations.

Simon F. Haeder is a doctoral student in the department of political science at the University of Wisconsin–Madison. Susan Webb Yackee is a professor of public affairs and political science, and is the director of the La Follette School of Public Affairs, at the University of Wisconsin–Madison.