The “Revolving Door” between Regulatory Agencies and Industry: A Problem That Requires Reconceptualizing Objectivity (original) (raw)

Democratizing the Federal Regulatory Process

2021

While legislation tends to get more attention, the regulatory process within the executive branch is at the core of day-to-day democratic governance. Federal regulation and rule-making engages dozens of agencies and affects every American. The Biden-Harris administration acknowledged the centrality of the regulatory process with two actions on the President's first day in office. The first called for modernizing the regulatory review process, particularly the central oversight role of the Office of Information and Regulatory Affairs (OIRA). The second was an executive order calling on the federal government to support underserved communities and advance racial equity. These two initiatives together lay the groundwork for a reorientation and modernization of the regulatory process to move it in the direction of equity and justice.To understand the challenges to and advantages of a reformed regulatory review process, New America's Political Reform Program and the Ash Center fo...

Advancing the Public Interest Through Regulatory Reform

2008

To develop a set of critical regulatory reform recommendations for the president and Congress, OMB Watch convened a steering committee of regulatory experts from the public interest, labor, small business, and other communities. The steering committee worked to put forth a consensus document that reflects what it sees as the most important regulatory process issues for the president-elect and Congress. Ideas raised with President Obama and congressional leaders fall into a number of categories: Improving the quality of regulations; protecting scientific integrity within agencies; ensuring agency accountability; effective implementation and enforcement of regulations; bringing more transparency to the regulatory process; and increasing public participation in federal rulemaking. The steering committee also highlighted those items that should be addressed during Obama's first 100 days in the White House and the first 100 days of the 111th Congress

Reforming 'Regulatory Reform': A Progressive Framework for Agency Rulemaking in the Public Interest

SSRN Electronic Journal, 2018

For over three decades, "regulatory reform" has been an aspiration chiefly for opponents of regulation. "Better regulation" is a goal nearly everyone would embrace. But changes in the federal administrative process since the 1980s have frequently had the foreseeable, and often intended, effect of hindering efforts to protect the environment, public health, civil rights, and other well-established public interest goals. The purpose of this Issue Brief is to envision what regulatory reform could look like from a different direction. Our specific focus is on administrative rulemaking, the primary target of contemporary law reform efforts. We ask, what if reformers started with full recognition of the value of administrative regulation in the public interest? Progressives have always argued for strengthening the law's substantive requirements in advancing the public good, such as stronger rules against pollution or more robust protections for worker safety. But beyond any specific substantive agenda, it is worth asking whether there are potential changes in agency process and in the oversight of agencies that would improve the administrative state. Are there changes that could make regulation more evidence-based, more transparent, more inclusive, more accountable, and more efficient? If so, then progressives should take up the cause of regulatory reform as our own. Our immediate aim is not to propose a specific text for the ideal progressive regulatory reform platform, but rather to set out a framework and illustrative suggestions to demonstrate that such a platform is plausible and significant. In Part I, we discuss ways of improving notice-and-comment rulemaking. In Part II, we cover the role of the White House Office of Information and Regulatory Affairs (OIRA). We seek to improve OIRA's processes and reset its mission to better align with congressional mandates. We then analyze, in Part III, the rules governing judicial review of agency actions, with the aim of clarifying the law and making judicial review more effective and efficient. Finally, in Part IV, we advocate the repeal of the Congressional Review Act, to eliminate this avenue for special interests to ambush important regulations in Congress. By focusing on rulemaking, we do not mean to slight the importance of other administrative activities such as issuing permits, distributing benefits, overseeing state regulatory programs, or enforcing legal requirements and issuing sanctions. But the biggest controversies over administrative law have involved rulemaking, which involves the most important and visible policy decisions. For that reason, we view this topic as the appropriate starting point for an agenda of progressive regulatory reform.

Equal Treatment for Regulatory Science: Extending the Controls Governing the Quality of Public Research to Private Research

American Journal of Law & Medicine, 2004

The imperative that agencies use sound science in developing their regulations has become a major preoccupation of the political branches. In only a few years, Congress passed two appropriations riders that provide extensive new mechanisms for the public to critique the science used by agencies. The executive branch quickly followed suit, promulgating regulations to implement these two laws, as well as proceeding on its own sound science missions. In the space of less than one year, the Office of Management and Budget (OMB) circulated for public comment draft peer review requirements for the scientific review of agency science, and the Environmental Protection Agency (EPA) launched a full scale program to improve the quality of the models it uses in regulation, as well as Assessment Criteria to be used by agency officials in reviewing the quality of third-party (primarily state) science.

Should Consensus Be 'The Commission Method' in the US? The Perspective of the Federal Advisory Committee Act, Regulations, and Case Law

Bioethics, 2003

This paper examines the drive for consensus from the perspective of the good government framework for federal advisory commissions in the United States. Specifically, the paper examines the Federal Advisory Committee Act (FACA)-the statute, its regulations, and case law. It shows that the FACA was intended to be an antidote to abuses in consensusmaking processes, including the failure to fully include competing views on commissions. The index of suspicion in the FACA scheme rises when a group work product-including a consensus report-is to be the basis of recommendations to federal officials. Once FACA's requirements regarding committee composition are satisfied, the index of suspicion drops and FACA is indifferent to consensus-making; but the conditions for informed, meaningful participation apply to members who dissent from, as well as those who participate in, consensus. In negotiated rulemaking, the push for consensus and closure creates unacceptable tension with the good government goals of openness and accountability. Proponents of consensusonly bioethics commissions can learn from FACA-related legislative, agency, and judicial insights that consensus-seeking is not always desired by government officials; is rarely cost free; and that diversity and dissent enhance openness, accountability, and fairness. The burden of proof is therefore on proponents of a consensus-only standard for bioethics commissions to demonstrate that a drive for consensus furthers sound decision-making by government officials more than it sets back openness and accountability to a diverse public.

The Puzzle of Private Rulemaking: Expertise, Flexibility, and Blame Avoidance in U.S. Regulation

Public Administration Review, 2006

The standard federal regulatory process in the United States involves notice and comment by government bureaus. As this traditional "agency model" form of public regulation faces difficulties in taking full advantage of the expertise of stakeholders and has been criticized as being slow and inflexible, it is not surprising that alternative institutional forms involving the delegation of rulemaking to stakeholders have appeared. Yet it is surprising that such private regulation has been used to allocate valuable goods, including some, such as transplant organs, that literally involve issues of life and death. Why do we see private regulation used as an allocative institution of governance? The answer to this question recognizes the advantages offered by private regulation in certain rapidly changing circumstances where essential expertise inheres in the stakeholders as well as the asymmetric political rewards involved in the allocation of highly valued goods that create an incentive for politicians to avoid blame by delegating substantive rulemaking authority to non-governmental organizations.