by Leif Fredrickson, EDGI Member, Op-Ed reblogged from Washington Post.
The Office of Information and Regulatory Affairs (OIRA) is foreign to most Americans. It had no cameos in “The West Wing” or “House of Cards,” and rarely makes news headlines.
OIRA (it rhymes with Elvira) has also been nearly dormant in the first six months of the Trump administration, but that is changing now that it is fully staffed with political appointees. This month, it ordered federal regulators to get with President Trump’s deregulatory agenda. This pressure will only increase after Trump’s speech on rolling back regulations next week.
OIRA’s soporific name belies its status as one of the most powerful bureaucracies inside the Beltway: The office can effectively shape, delay and even nix critical regulations proposed by executive agencies such as the Environmental Protection Agency, Occupational Safety and Health Administration and the Department of Health and Human Services.
Now more than ever, OIRA deserves scrutiny. The office has become a political tool that the White House has increasingly stockpiled with powers that can undermine health, safety and civil rights protections in the name of “small government.” And the current administration may seek to expand OIRA’s powers even further, giving it more influence over important regulations.
Federal programs and regulations created in the post-World War II era, particularly in the 1960s and 1970s, expanded civil rights, reduced poverty, safeguarded human health and protected the environment. To be effective, the regulatory state required the collection of information. For example, to make and enforce rules that increased workplace safety, OSHA needed to know where and how workplace accidents happened.
As regulation threatened business profitability, however, anti-regulation proponents recast “information collection” as burdensome and pointless “paperwork.” Presidents Gerald R. Ford and Jimmy Carter agreed. Like many proponents of deregulation, these presidents accentuated the costs of information collection and marginalized the benefits.
In the twilight of his presidency, Carter signed the Paperwork Reduction Act of 1980, heralding the law as a win against the “bureaucrats.” The law required agencies to justify their information requests and to reduce paperwork burdens by 25 percent. A new office, OIRA, was charged with overseeing these new strictures. OIRA’s oversight was a significant, if modest responsibility, that, importantly, did not include any broader authority to review or affect regulations.
But the following year, the new president, Ronald Reagan, radically recast OIRA.
Having famously proclaimed that government was the problem and not the solution to political problems, Reagan made deregulation a staple of his administration. With an executive order, he required agencies to submit all major regulations to OIRA for review.
In doing so, Reagan gave OIRA unprecedented centralized power over agencies — agencies to which Congress had explicitly, and usually exclusively, delegated regulatory powers. In passing the Clean Air Act, for example, Congress gave the EPA power to create pollution regulations, not the White House. In addition, Reagan required cost-benefit analyses of all new regulations — with OIRA oversight — even when Congress had never directed agencies to consider, or quantify, the costs of regulations.
Ironically, Reagan’s attack on big government required state-building. Jim Tozzi, who became head of OIRA under Reagan, characterized his goal as similar to that of all good bureaucrats: amassing power. But that power was to be used to control, even undermine, other bureaucracies, often with stereotypical bureaucratic tools: procedural red tape, burdensome paperwork and analysis paralysis.
Criticism of OIRA’s practices quickly emerged. Public interest groups accused Reagan’s OIRA of undermining the regulatory state by blocking or delaying regulations related to diesel exhaust, toxic chemicals and sex discrimination, among others.
Another issue was that industry had extensive input into OIRA’s regulatory review under Reagan, although the specific influence of businesses on rules was shrouded by another problem: OIRA’s lack of transparency. Even the Government Accounting Office threatened to sue the office for refusing to hand over documents about how it operated.
OIRA also angered legislators. Congress held numerous meetings about OIRA’s weakening and delay of regulations. Legislators threatened to defund the office several times, and did so in 1983.
In 1985, five House committee chairmen filed an amicus curiae brief in a suit brought by a public interest group against OIRA’s obstruction of an OSHA health standard. The chairmen argued that OIRA interfered with Congress’s delegation of authority to agencies, subverted public participation and ultimately threatened the separation of powers. While the court found in favor of plaintiffs, it did not rule on the constitutionality of OIRA’s regulatory review. No court has.
Since OIRA serves the president, it reflects the governing priorities of different administrations. President Bill Clinton, embracing an active regulatory agenda, ushered in a gentler OIRA — a shift from the office as regulatory “gatekeeper” to “counselor.” A Clinton executive order “reaffirm[ed] the primacy of Federal agencies” in regulatory decisions. OIRA reviews dropped from thousands per year to hundreds. The order also softened cost-benefit analysis requirements and set time limits on OIRA reviews.
Although Clinton’s OIRA was gentler, it maintained OIRA’s centralized review function. When George W. Bush took office looking to relieve regulatory burdens, OIRA again became a regulatory “gatekeeper” and returned to more rigid cost-benefit analysis.
OIRA’s actions under Bush also reignited questions about who OIRA was a gatekeeper for. A GAO review in 2003 found that, in general, OIRA’s suggested regulatory changes focused on reducing costs (which are typically incurred by businesses), although it was not clear that these cost reductions “would necessarily be accompanied by increases in net benefits to society.” The GAO also found that some of OIRA’s recommendations mirrored those suggested by “outside parties.”
For example, after industry representatives objected to a proposed rule listing manganese as a hazardous waste constituent, OIRA successfully urged the EPA to delay the rule, even though it acknowledged that manganese posed “significant issues that ultimately should be resolved.”
OIRA’s gatekeeper role continued under President Barack Obama, who styled himself a critic of government inefficiency. Obama appointed a vigorous proponent of regulatory review and cost-benefit analysis to head the office. OIRA, prodded by industry opposition, delayed stricter health standards for ozone and silica dust. And the office continued to suffer from a lack of transparency.
The rhetoric, policies and appointments of the Trump administration indicate an extreme anti-regulatory agenda, reminiscent of Reagan, in which OIRA will play a key, and perhaps expanded, role.
Trump has already signed several strong deregulatory executive orders. One calls for agencies to identify two regulations to be eliminated for each new regulation issued and another establishes “regulatory reform officers” to identify rules to be repealed, replaced and modified. Using these orders, OIRA recently directed agencies to drastically reduce regulatory costs, with no consideration of the benefits of those regulations.
Even more worrisome than the power and mission handed to OIRA by these zealously deregulatory orders, the administration may expand OIRA’s bureaucratic reach to independent agencies, including the Consumer Product Safety Commission, the Nuclear Regulatory Commission and the Securities and Exchange Commission to carry out more deregulation. Currently, these agencies are outside of the executive branch and thus more insulated from presidential influence. Trump’s head of OIRA, Neomi Rao, however, believes that OIRA should be able to review the regulations they issue and has even argued for the complete abolition of their independence.
Critics of big government frequently charge government bureaucracies with “overreach” — of bursting the bonds of their congressional mandates. This criticism is often unfounded, but it is true of OIRA. Congress gave rulemaking powers to specific agencies, not the White House. But OIRA gives the president substantial power to review regulations, and effectively shape and delay them. And neither Republican nor Democratic presidents have been willing to cede the power OIRA has accumulated.
Absent such executive self-control, we need Congress to step up and define what OIRA can and cannot do. OIRA needs a gatekeeper.