Panelists Question and Defend Actions and Transparency of ‘Super-Regulators’
The White House Office of Information and Regulatory Affairs isn’t transparent or effective enough, some said at a panel Monday. Hosted by the Sunlight Foundation’s Advisory Committee on Transparency, panelists discussed the future of the “super-regulators” at OIRA. OIRA doesn’t do enough to encourage regulation, said Public Citizen President Robert Weissman. Instead, he said, the agency plays a role in a “fundamentally broken system” of regulating that has “an industry bias from the start to the end.”
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"The agencies are not biased towards expanding their regulatory power,” Weissman said, saying OIRA lets special interests play a role in decreasing regulatory power and increasing industry freedom. “A way forward for OIRA would be to move away from a case-by-case, rule-by-rule review,” he said. There needs to be more analysis of the regulatory process, not just individual regulations, he continued. “That is a hard problem,” he said. “And it’s not something that’s getting sufficient attention."
OIRA gets accused of doing both too much and too little when it comes to moving regulation, said Michael Fitzpatrick, former associate administrator under President Barack Obama and current senior counsel for government and regulatory affairs at General Electric. “When you have the right and the left both attacking you,” he said, “it’s a pretty good indication you're doing your job right.” Fitzpatrick defended the agency’s transparency practices, saying, “OIRA has probably the most transparent process,” when it comes to rulemaking. OIRA publicly documents when it’s reviewing a regulation, what it has said to agencies about that regulation and when it meets with outside parties.
There are still ways in which OIRA needs to improve its transparency, said Curtis Copeland, a consultant for the Administrative Conference and past official at the Congressional Research Service and the GAO. Copeland, citing a GAO report from 2003 which provided suggested improvements to OIRA, pointed to instances where he felt the office fails to provide information. For instance, he said, any drafts and communications that are sent between OIRA and agencies during the informal review process that typically precedes the official review process are not publicly disclosed. “They get most of the changes from agencies during the informal reviews,” he said. Once a rule has been reviewed by OIRA and changed by the agency to be compliant, Copeland said, OIRA’s disclosure process doesn’t make it clear what has been changed or which party was behind that change. “The public gets to see the rule as it came in and the rule as it went out,” he said. When the documents are hundreds of pages, he continued, “it’s not easy to find those changes."
More transparency is not the answer, said Susan Dudley, former OIRA administrator under President George W. Bush and current director of the George Washington University Regulatory Studies Center. That’s especially if it involves documenting and disclosing interactions between OIRA and agencies, she said. OIRA is already transparent, she said, and “a fishbowl type of transparency would focus the debate on who said what to whom.” This would actually decrease transparency, she said, because these conversations would be moved to unofficial channels.
Instead, Dudley pushed for a more active role for Congress. “I would love to see Congress be more involved,” she said, suggesting the formation of a congressional office for regulatory analysis and oversight and calling the legislative body “not very accountable.” Under the current system, she said, Congress gets to pass the laws and then blame federal agencies if their constituents don’t like the resulting regulation.