Letter to Obama on Revitalizing the Rulemaking System

A former Department of Labor career employee who is expert in administrative law offers three simple steps for the Obama Administration to revitalize the federal rulemaking system.  Pete Galvin's open letter to President-elect Obama provides thoughtful insight and recommendations that, if implemented, would go a long way to get our public health agencies (OSHA, MSHA, EPA) back on track for the common good.  One in particular might be most difficult for the Obama team to swallow is:

"...trust your appointees to do their jobs without direct oversight by the White House staff.  Specifically, I would urge you to dispense with any direct White House role in the regulatory activities of Federal agencies for a test period of a year."

Galvin's talking about OMB.

Here is his open letter.

Dear President-elect Obama,

I want to encourage you to take three easy steps early in your Administration as a down-payment on reforming the Federal regulatory process.  I am referring not to the dozens of specific regulatory determinations nor Executive Order policies of the Bush Administration that warrant amendment or repeal, but rather to the process itself. 

Dozens if not hundreds of critical Federal functions are implemented through rulemaking, and as we know from the recent credit crisis, more such regulations will soon have to be authorized or issued.  The process to actually issue rules has become mired in 25 years of accumulated red tape.  In the early days of the "Contract on America" we came within a whisker of having the whole system wiped out, and we have paid a heavy price to keep it on life support.  As Clinton appointees will testify, a committed Administration cannot succeed unless the rulemaking process is revitalized.        

I know you enter office with a very full plate.  What I am therefore proposing are actions that will move the ball forward during your first year or two while freeing you the Congress for the critical challenges we face. 

First, you should select to run regulatory agencies only those who will commit to go where the facts take them, and who will not wilt in the face of sustained, organized and well-funded opponents.  This is a tough town, and many earn their living by blowing up problems well out of proportion in order to obtain, and retain, paying clients.  They seduce newcomers through a strategy of repeated requests for limited delays, endless meetings with coalitions that will never reach consensus, convince vulnerable or cash-hungry members of Congress to derail important efforts through though back-door appropriations amendments, hire scientists and economists to sign off on junk science masquerading as fact, raise spurious legal arguments that cow agency lawyers, and otherwise bring tremendous pressure to bear on your appointees.  The proponents of new rules can sometimes be just as difficult.  You need the right people in every one of these slots or you will surely pay a steep price down the road.    
       
Second, you need to trust your appointees to do their jobs without direct oversight by the White House staff.  Specifically, I would urge you to dispense with any direct White House role in the regulatory activities of Federal agencies for a test period of a year.  Intensive engagement by the White House isn't required by statute. 

The practice was started to deflect conservative criticism about "out of control government bureaucrats", and each successive Administration has imposed additional controls of one sort or another to deal with further political pressures.  When added to the highly technical and financial findings required of particular program agencies by law, and a cave-in to the small business lobby that gives them a special opportunity to delay proposed rules, the resulting "paralysis by analysis" makes it impossible for agencies to update scores of outdated rules. 

It is not uncommon for an Administration appointee to be to unable to see through from beginning to end even a single rulemaking of any significance.  And as if that isn't enough, the White House is constantly being forced to meet with lobbyists who want to influence the agency process â putting the White House on the hook for highly technical decisions based on years of study and subject to court challenge and Congressional oversight. 

Your appointees are selected by you, and confirmed by the Congress, to tackle this or that problem under special parameters set by the Congress for tackling exactly such problems, and if they don't show enough political savvy to avoid creating an avoidable problem you can always can them.  But some problems are unavoidable, and you need to empower them to take care of business.     

Third, I would ask your budget director to develop for you a long-term plan to ensure that the regulatory programs, and their rulemaking enforcement arms, aren't swept under the bus yet again during funding decisions by the Administration or the Congress.  You should also support bi-partisan efforts in the last Congress to refinance the Administra-tive Conference of the United States, a small body of legal scholars and agency regulatory officials who can provide valuable recommendations on specific cross-cutting regulatory issues. 

We're not talking major money here -- pennies and nickels compared to big ticket items â but these agencies are heavy on personnel costs and most have been hallowed out from years of freezes and 1% cuts.  Sometimes programs have Congressional champions who are in a position to get the job done, but that is pretty much limited to very senior members; appropriations subcommittees are now given targets from on high and they are being forced to make impossible choices.  These problems are well recognized, but require leadership to address. 

Those who want Federal regulatory agencies to remain crippled will criticize any funding commitment as inconsistent with your pledges on the budget because that provides them a convenient argument to mask their real goals.  However, keep in mind that the default option here is to wait for the public to scream once Americans die or are fleeced because one or another part of your Administration is simply unable to look after its basic responsibilities.  You may ultimately decide that you have no real choice, but your team should at least give you a less gloomy alternative to consider.   

Those three steps will do an enormous amount of good.  I have confidence that when time permits, and with your support, the new Congress will find some time to take care of a few critical areas where your regulators will not be able to make headway without statutory change.  In that regard, I encourage you both to ensure that every person who is patriotic and brave enough to speak out when they see a violation of Federal regulatory requirements is protected from employment retaliation. 

Best wishes for a successful term. 

Peter Galvin, former co-counsel for administrative law, US Department of Labor; and former senior labor policy advisor to Education and Labor Committee, US House of Representatives.