White House staffers don't typically welcome a hailstorm of criticism. But Michael Fitzpatrick, a former administrator in Obama's regulatory office, wears it as a badge of pride. "It's an amazing thing to be blasted by left and right," Fitzpatrick marveled, recounting on the attacks from industry groups and liberal advocates alike on the regulations he helped review. "It's a pretty good indication you're doing your job right."
Fitzpatrick was speaking at a Monday event on "the president's super-regulators"—the Office of Information and Regulatory Affairs—as part of a committee that advises the House's Transparency caucus. Currently headed by "regulatory czar" Cass Sunstein, OIRA reviews all of the administration's regulations deemed to be "significant" before they take effect, whether they're new fuel economy rules or food labeling standards. Fitzpatrick and Susan Dudley, another former OIRA official, believe the office provides a "dispassionate and analytical second opinion" to improve regulations before they go out the gate, in Dudley's words.
But OIRA's ultimate purpose is to allow the White House to put its imprint on the most important regulations before they go into effect: Even when Congress passes new rules, they typically create blueprints for them that the administration must finalize. The process gives the White House's OIRA the final say on many major regulations. However, it's not always easy to tell what or who has prompted the agency to make certain changes. The issue has prompted calls not only for greater transparency but also for an alternative, independent office to review regulations.
For Fitzpatrick and other OIRA alum, criticism from both sides is a sign that the office is striking the right, fair-minded balance. Republicans and industry groups have complained about the "tsunami of regulations" and undue burden they believe the Obama administration has put upon the private sector. Although Obama's finalized fewer regulations overall than either Clinton or Bush during the same point in their first terms, he's pushed through more rules with more than a $100 million impact. (Though that threshold for such "economically significant" rules isn't adjusted for inflation). Meanwhile, liberal groups have blasted OIRA for being beholden to industry interests, dragging its feet on vital rules and carving out loopholes to weaken regulation. "They are pains in the rear to agencies and others because they ask tough questions," says Fitzpatrick.
Dudley, OIRA's administration during the Bush years, argues that the office is actually less likely "to be captured by concentrated special interests that influence agency decisions," as its authority isn't limited to any particular set of policies. "Its analytical principles are generally not controversial and certainly not partisan," she said. Fitzpatrick points out that the agency's 50-some staffers are mostly career bureaucrats, remaining "essentially the same from administration to administration."
But that doesn't change the fact that OIRA is an organ of the White House, housed in its Office of Management and Budget, with the intention of putting the administration's final stamp on agency regulations. And it frequently does alter the draft regulations before they're put into effect: "OIRA changed 76 percent of rules submitted to it for review under President Obama, compared to a 64 percent change rate under President Bush," according to a 2011 report from the Center for Progressive Reform.
There are some windows into how the White House's "superregulators" make their decisions: OIRA is required to post all meetings held with outside groups—including lobbyists and industry reps—as well as regulations before and after they're finalized. But there are blind spots, as well. During the "informal review" process, for instance, agencies are told not to document the changes made to regulations, explained Curtis Copeland, who has examined OIRA for the Government Accountability Office. Because the office isn't required to document its changes to regulations, it's difficult to tell whether "OIRA gutted a rule or the agency changed a comma."
That's prompted calls for more transparency during the process. But there's also been a push to give Congress more of a role, not only as a check on the executive branch but also to make legislators more responsible for the laws that they pass. "Congress can agree on statute, but then the details are passed onto executive branch to actually fill out. When regulations tick off their constituents, [legislators say], 'Well, then it's the agency's fault, it's not my fault,'" Dudley explains.
Instead, Dudley proposes having an independent Congressional office analyze regulations—akin to the Congressional Budget Office, which is generally considered an independent, nonpartisan authority. That would allow lawmakers and the public a more objective way to assess the White House's regulations and those issued by independent agencies, apart from the special-interest advocates who tend to dominate the discussion.
Similar proposals have been floating around Congress for decades, but they haven't made much progress. In January 2011, Rep. Don Young (R-Alaska) introduced a bill to create a "Congressional Office of Regulatory Analysis" that would provide an independent take on agency regulations. As with the CBO, the agency's director would be appointed by the House speaker and Senate majority leader. But the bill attracted only one co-sponsor. And Dudley acknowledges that funding such an office would be hard to scare up in the current economic environment.
Far more popular has been a GOP proposal to mandate that all federal regulators be subject to an up-or-down vote by Congress—a bill known as the Regulations From the Executive in Need of Scrutiny (REINS) Act, which the House GOP has pushed in the current Congress.
But the REINS Act would risk bogging down regulations in partisan fights and Congressional gridlock. And rather than provide more fair-minded analysis of regulations, it could make the regulatory process even more political.