Yesterday, the House Science and Technology Committee subcommittee on Investigations and Oversight held a long-awaited second hearing on President Bush's recent changes to the regulatory process. Much of the hearing focused on the role of the Regulatory Policy Officer (RPO) — a position with newly enhanced responsibilities.

The changes state "no rulemaking shall commence" without the approval of the RPO. Steve Aitken, former acting administrator of the White House's Office of Information and Regulatory Affairs, told the panel that the Clinton administration had issued a dictate forbidding agencies to "issue" rulemakings without similar approval. Rep. Dana Rohrabacher (R-CA) latched on to this as reason to drop the whole case against the Bush administration.

Reg•Watch has checked its dictionary, and apparently "issue" and "commence" are two different verbs with two different meanings. Exactly when a rulemaking commences is unclear.

This kind of confusion begs the question: What transparency measures will be included in this process? Committee Chairman Brad Miller (D-NC) expressed legitimate concern that RPOs "can smother regulatory efforts in the crib before an agency can even begin considering a regulatory action."

In the hearing, OMB Watch Executive Director Gary Bass recommended several improvements in transparency. Though OMB Watch fully opposes the changes embodied in the new E.O. and Good Guidance Practices Bulletin, if they are to exist the American people should be allowed to see into the process. At the very most, Congress should act to nullify these changes. At the very least, it should shine more sunlight on the regulatory process.

Last night, the White House Office of Information and Regulatory Affairs (OIRA) issued a memo instructing agencies on how to implement President Bush's recent changes to the regulatory process. The memo was the first missive by newly minted OIRA administrator Susan Dudley.

On Jan. 18, the White House issued two documents changing aspects of the federal regulatory process and mandating agency guidance documents (memos, policy statements, etc) fall under OIRA review. If those documents were forms of guidance on guidance, yesterday's memo is guidance on the guidance on guidance.

Unfortunately, despite the plethora of guidance, many questions remain unanswered. For example, the E.O. states "no rulemaking shall commence" without the approval of agency Regulatory Policy Officers. OMB Watch has expressed concern this will allow RPOs to stifle regulations in their infancy because it is unclear when a rulemaking commences. Does a rulemaking commence when scientific testing on an issue begins, when a draft rule is published, or somewhere in between?

The memo fails to clarify this concern. It states: "As a general matter, a rulemaking commences when the agency has decided as an institutional matter that it will engage in a rulemaking."

Translation: A rulemaking commences when we say it commences.

On Thursday at 10:00 a.m., a House panel will examine President Bush's recent changes to the regulatory process. Gary Bass, Executive Director of OMB Watch, is scheduled to testify.

The panel (the House Science and Technology Committee subcommittee on Investigations and Oversight) has looked at Bush's amendments to the regulatory process before, but this hearing will focus on the Regulatory Policy Officer (RPO) — a presidentially appointed regulatory taskmaster housed in each federal agency. Here are the basic facts on the RPO:

• President Clinton's Executive Order 12866 created the RPO position to "foster the development of effective, innovative, and least burdensome regulations."
• Bush's amendments to E.O. 12866 have required agencies to designate a presidential appointee to be its RPO
• Bush's amendments also increased the authority of the RPO by stating "no rulemaking shall commence … without the approval of the agency's Regulatory Policy Officer."

OMB Watch has expressed several concerns related to the RPO changes. Requiring RPOs to be presidential appointees allows the White House to exert greater influence in the day-to-day operations of federal agencies. Whereas some agencies formerly used experts on particular issues to manage regulatory proceedings, political motives will now set the tone.

Furthermore, agencies must designate a current presidential appointee, but the individual is not subject to Senate approval for the new position. This is tantamount to promoting an undersecretary to a cabinet-level secretary without Senate confirmation. Bass's testimony will focus on the transparency of regulatory decision making. Under the old system, White House regulatory directives were sent to agencies by the Office of Information and Regulatory Affairs. These directives are publicly available on the White House website. Now, because the RPO must approve commencement of regulations, the political chokehold is in the agencies. It is conceivable a regulation could be completely stifled by the RPO without announcement or public input. The public needs greater clarification on just what these changes mean for the basic democratic right of access to information.

Be sure to check out the latest issue of our biweekly newsletter, The Watcher. Regulatory policy articles this time:

Recess Appointment Makes Dudley Head of White House Regulatory Policy Office

Courts Rebuke Bush Administration's Forest Actions

EPA Issues another Delay in Contaminant Regulation

Sam•Fox (sam' foks') vt. 1. To install by recess appointment shortly after pretending to be cooperative by withdrawing a nomination.

Yesterday, the White House withdrew the names of two controversial officials nominated for posts in the EPA. Environmentalists criticized the nominations of both William Wehrum and Alex A. Beehler, and neither nominee appeared to enjoy support among Senate Democrats.

Under normal circumstances, this would be good news. But with President Bush circumstances are rarely normal. Bush recently showed false signs of cooperation by withdrawing the nomination of Sam Fox, only to appoint him during the following recess. The recess appointment of Susan Dudley was equally deceitful. With that in mind, who knows what the future holds for Wehrum and Beehler. The LA Times reports:

Congressional sources and industry lobbyists said they were not sure whether Bush intended to use the same tactic for Wehrum and Beehler.

"That was the plan all along," said a lobbyist with ties to the administration. Wehrum's post expires July 7, and Congress takes its summer break in August. But anger in Congress over last week's recess appointments may have changed the equation, several said.

Stay tuned to see if Bush will SamFox Wehrum or Beehler into the EPA.

Yesterday, the Senate Appropriation Committee held a hearing to examine the budget of the White House Office of Management and Budget (not the federal budget, but the budget of OMB itself). During the hearing, Subcommittee Chairman and Senate Majority Whip Dick Durbin (D-IL) questioned OMB Director Rob Portman on a number of issues. These included the recess appointment of Susan Dudley to be the administrator of the Office of Information and Regulatory Affairs (OIRA) at OMB, and the installation of Regulatory Policy Officers (RPOs) in federal agencies as required by recent White House changes to the regulatory process.

Durbin addressed OIRA at large, calling its work "Freakonomics to the 10th power." He then pointed out some of Dudley's anti-regulatory positions and asked Portman to identify the need for presidentially appointed regulatory foot-soldiers — the RPOs — to invade each agency. Durbin said the White House appeared to be "attempting to take away the regulatory authority of agencies."

Unfortunately (but not surprisingly), Portman evaded questioning. He gave a roundabout answer on Dudley, and did not appear to be familiar with her record. By the time Portman was done avoiding the Dudley issue, everyone had forgotten about the RPO question, and it was never answered. Almost three months after the amendments to the regulatory process, no senior administration official has answered any questions or said anything meaningful about the changes.

In today's issue of Roll Call, Norm Ornstein — a political pundit and scholar at the conservative American Enterprise Institute — articulates a rather damning assessment of recess appointment power (reprinted on the AEI website). Ornstein points out the danger of precedent in forming executive power. He then calls for Congress to stand up against President Bush's most recent batch of recess appointments including that of Susan Dudley.

Every time a president abuses a power like this one, stretching the circumstances under which he will use recess appointments, it becomes a precedent for his successors, who will use his actions as a base point to stretch the power even further. The more the power is used with impunity, the more the core principles of the separation of powers are eroded.

So what is a Congress to do? The only answer is to use its own powers to make clear to the president that there is a cost, and a serious one, to such behavior.

Specifically, Ornstein suggests hitting the White House and these illegitimate appointees where it hurts: in the wallet. Congress could easily withhold the salary and other perks from embattled former nominee Sam Fox, and otherwise "make White House operations more difficult without cutting essential services."

Ornstein also suggests this whole recess appointment mishigas is unconstitutional. In addition to the explicit language of Article 2 Section 2 Clause 3, Orstein cites America's original political genius, Alexander Hamilton. In Federalist paper No. 67, Hamilton articulates the caution with which America should consider the power of the recess appointment.

Ellen Smith, editor of Mine Safety and Health News, has an opinion piece in today's North County Gazette (NY). The issue is private OMB meetings that too often include special interests and shut out the American public. Smith argues these meetings result in biased decision-making placing Americans (in her example miners) at risk. More important is the loss of transparency in the decision-making process — a fundamental democratic right.

Read the column here.

Susan Dudley's recess appointment is the subject of editorials in this morning's Washington Post, New York Times and Wall Street Journal. Let's compare and contrast.

Read the rest of this entry

Posted by Matt Madia, 10:54:30 AM

Thursday, April 05, 2007

Wednesday, April 04, 2007

Be sure to check out the latest issue of our biweekly newsletter, The Watcher. Regulatory policy articles this time:

OMB Manipulated Climate Science, Report Says

Miners Detail MSHA's Failings in Emotional Testimony

FDA Issues New Conflict of Interest Guidelines