David Dayen: Introduction
Rajesh D. Nayak & Todd N. Tucker: OIRA 2.0: Using OIRA for Progressive Regulation
Kalen Pruss: It’s Time for OIRA to Go
Sharon Block: Why Bolster the Regulatory Gatekeeper?
Todd Phillips: The Big Misstep in a Worthwhile OIRA 2.0 Proposal
Introduction
BY DAVID DAYEN
An obscure agency housed within the Office of Management and Budget has the power of life and death over all Americans. You may not have heard of it, but you’re living under its dictates. Every manner in which government acts flows through this team of fewer than 50 economists, who quantify and qualify whether it’s worth it to avoid noxious fumes in the atmosphere, or to prevent harmful chemicals from being ingested, or even to stop prison rape.
The agency is called the Office of Information and Regulatory Affairs (OIRA), and it’s been around in one form or another for half a century. It uses centralized planning and cost-benefit analysis to determine the efficacy of regulations across the federal government, and historically this has delayed or even blocked rules that could save lives. Whether in a Democratic or Republican administration, OIRA has been a choke point for the administrative state, with grave consequences for progressive reform.
The Prospect has written extensively about OIRA; back in 2014, our co-founder Robert Kuttner savaged OIRA’s Obama-era leader Cass Sunstein in a review for Harper’s. “By the time [Sunstein] left office, OIRA, whose deliberations are secret, had become the graveyard of more direct measures to regulate abuses of markets,” Kuttner wrote. “A total of thirty-eight rules were bottled up at OIRA for more than a year, and several energy regulations sat there for close to two.” He details case studies of OIRA taking industry guidance to slow down the regulatory process, at the cost of workers, consumers, and anyone who breathes air.
There is little debate on the left that OIRA has become an impediment to bold governance, but there is some debate about the way forward. Earlier this month, the Roosevelt Institute’s Todd Tucker and former top Labor Department official Rajesh Nayak wrote a detailed paper for the Great Democracy Initiative seeking to refashion OIRA in a future Democratic administration as a force for social equity, by expanding its role as a coordinator of progressive priorities and an educator to federal agencies on how to get that done.
The paper received a somewhat mixed reception, with some lauding the potential of an expanded OIRA with a new mandate, and others warning that an agency forever committed to resisting regulatory action can never be reformatted into the opposite role. At the Prospect, we are committed to providing a respectful forum for these debates on the left, outside of the Twitter cacophony.
We have assembled a series of voices to discuss the future of OIRA and the regulatory state in the next Democratic administration. Tucker and Nayak expand on their reasoning for why they see a boosted OIRA as the best opportunity for strong progressive governance. Sharon Block of Harvard Law gives her opinion for why the coronavirus pandemic makes the concept of a bulked-up OIRA even more urgent. On the opposing side, Kalen Pruss of the American Economic Liberties Project rejects the idea that OIRA can be mended, and calls for it to be ended. And somewhere in the middle, government lawyer and former congressional staffer Todd Phillips praises parts of the Tucker and Nayak proposal, but parts ways on the idea of improving cost-benefit analysis, which has been used as a political weapon to prevent regulatory action.
We hope that this symposium can offer the full range of views on this important decision facing the next Democratic president. If you don’t know about OIRA, you should—and after reading this series, you will.
OIRA 2.0: Using OIRA for Progressive Regulation
BY RAJESH D. NAYAK & TODD N. TUCKER
Since the Reagan administration, the Office of Information and Regulatory Affairs (OIRA) has been tasked with managing rulemaking across government, reviewing agencies’ cost-benefit analysis, and circulating draft rules among agencies—building upon efforts launched in the Johnson, Nixon, Ford, and Carter administrations, respectively. And from that moment forward, progressives have loved to hate it.
For decades, OIRA has been blamed for slowing or even stopping important rules that would better protect workers, consumers, borrowers, and anyone else in the crosshairs of big business. That’s why some progressives have proposed abolishing OIRA so that Cabinet agencies can be free to pursue regulations at will.
But when we look at OIRA, we see its potential. In our recent report, “OIRA 2.0: How Regulatory Review Can Help Respond to Existential Threats,” we propose using OIRA as a force to help address existential threats, not to mention modernizing its version of cost-benefit analysis to support progressive structural change and center equity.
In examining today’s OIRA, we identified four deeply intertwined factors that can lead OIRA to delay or block ambitious regulations. First, the agency is inadequately staffed to review routine rulemaking, let alone to move quickly against existential threats that may require broad structural change to the economy. Second, the agency’s role as peer reviewer and keeper of certain standards and procedural requirements is misaligned with the need for expedient action. Third, and relatedly, OIRA’s regulatory review process must strike a continuous balance between expediency and rigor in reviewing regulatory packages. Finally, OIRA’s traditional use of cost-benefit analysis is insufficiently rooted in a structural accounting of which groups in society gain or lose from courses of action or inaction.
AP Photo
Reagan holds a Cabinet meeting, November 1984.
That’s where our recommendations come in. For one thing, we propose the creation of a new Regulatory Planning Office (RPO) within OIRA that would serve as a think tank within government to identify areas of under-regulation. The RPO would play a forward-looking role, pressing agencies to pursue more effective agendas and arming them with important tools to achieve those goals. This new office would function as a partner to agencies to work through ideas that may not have previously been pursued due to a lack of resources, and could even partner with outside academics and academic associations to add research capacity.
In other words, we see a revamped OIRA as a potential industrial planning facilitator—something the American state sorely lacks. This absence puts us at a significant disadvantage relative to our economic competitors when it comes to enacting bold transformational industrial policy of the kind needed to respond to pandemics, soaring inequality, and climate change. Our reforms will empower OIRA to deliver on a progressive mission, and a new administration could hold it accountable accordingly.
Equally important, we suggest additional reforms to modernize and enhance OIRA’s cost-benefit analysis standards for analyzing rules. For example, one consequential but wonky technical change involves decreasing the “discount rate” that is used to reduce the “present value” of benefits that accrue well into the future. To explain, the Trump administration favors a 7 percent discount rate, which means a benefit of $2 billion would be “worth” $1 billion in up-front costs only if it were realized in the next ten years. A more aggressive (and we think realistic) 1.4 percent discount rate (favored by the U.K.’s Stern Review on the Economics of Climate Change) would validate the same up-front costs as long as the benefits were realized anytime in the next 54 years—which they certainly would be. Choosing the right discount rate—including zero when there are significant intergenerational equity issues—will make a huge difference in justifying efforts to tackle the climate crisis, many of which involve high up-front costs with vital payoffs farther in the future.
As a second example, we also explain how OIRA could use reimagined standards to compel agencies to center equity and inclusion in crafting regulations. By considering the disparate costs and benefits shouldered by women, people of color, immigrants, people with disabilities, and other communities that are too often marginalized in the policymaking process, a new equity analysis could highlight differential impacts of policies on those populations, whether intentional or not. In anticipation of these disclosures, agencies would design policies with greater equity; and the disclosures would provide impacted communities hooks for their own campaigns to advance regulations or demand changes.
As individuals who have worked on ambitious rulemaking agendas from the inside and outside during the Obama administration, we viscerally share frustration over rulemaking delays. But even beyond legal questions about abolishing OIRA or cost-benefit analysis altogether, it’s unlikely that a Biden administration would give up centralized control over rulemaking or unilaterally abandon an established process for justifying important rules to the public. This is perhaps especially true of a candidate increasingly positioning himself on the left, who will be under constant scrutiny by the media, and facing attacks from well-funded business interests claiming that the administration’s regulatory efforts are choking the economy in a recession (or worse).
If anything, it’s far more likely that there will be a push to restore OIRA to its pre-Trump status quo, simply undoing the damage that Trump has done to this institution as he has to so many others. And while a full appraisal of OIRA is at least complicated—the longest delays blamed on the agency sometimes originate elsewhere—it would be a lost opportunity, to say the least, not to modernize OIRA to support a robust regulatory agenda, especially in the face of the existential threats that our nation faces.
Moreover, on the merits, we do not believe the White House should delegate rulemaking responsibility entirely to agencies. A progressive administration needs mechanisms to hold agencies accountable to deadlines and to ensure they take its preferred positions. And even the most trustworthy agency leaders cannot be expected to fully understand the implications of their policy proposals for every other agency around government. If rulemaking is fully decentralized, a proposal to limit pesticide use may still be inadequate in terms of child labor, for example.
With strong leadership and additional resources, a reimagined OIRA can serve to push agencies to think more creatively and proactively. Such an OIRA could make the difference between years of frustration and wasted opportunity, and the advancement of a proactive agenda for workers’ rights, climate justice, consumer protections, access to health care, and even an industrial policy that will create new jobs to support our nation through our economic rebuilding effort and beyond.
Rajesh D. Nayak (@rdnayak) is an attorney and fellow at the Labor and Worklife Program at Harvard Law School and was previously deputy chief of staff at the Department of Labor. Todd N. Tucker (@toddntucker) is a political scientist and the director of governance studies at the Roosevelt Institute.
It’s Time for OIRA to Go
BY KALEN PRUSS
Progressive policymakers are curiously allergic to admitting that some government programs should be shut down. This fetish for bureaucracy is often excused by the realities of governing: It is sometimes difficult to reorient systems built up over decades toward achieving progressive outcomes. But it is important not to confuse good programs run badly with programs designed to subvert progressive goals. The Office of Information and Regulatory Affairs, or OIRA, falls into the latter camp. The next president has the authority to effectively eliminate OIRA. He should exercise that authority on the first day of his presidency.
OIRA is the most powerful agency most Americans have never heard of. It was created in the Carter administration as part of a wave of deregulation, with the goal of imposing a level of centralized control over the rulemaking process. In the 40 years since, under every subsequent president, the agency has only gotten stronger. Now, OIRA is a procedural gauntlet wielded by presidents and narrow-minded economists to limit agencies’ ability to exercise the authority delegated to them by Congress.
OIRA works by forcing agency rules through an opaque and pedantic White House review process—both before agencies propose rules for public comment, and again before they promulgate final rules. This process acts to slow down rules or halt them altogether. It also allows industry to play a special and secretive role in the rulemaking process, outside of the existing public-comment process otherwise required by law.
That is exactly what happened to a proposed rule to reduce silica dust produced from industrial processes during the Obama administration. Silica causes lung cancer and kills or sickens thousands of workers each year. The Occupational Safety and Health Administration had studied silica for decades before writing the rule and sending it to OIRA for sign-off in 2011. There it sat for two and a half years. Every day OIRA delayed the rule was a day the agency allowed silica to harm the public.
OIRA is a black box, so what happened to the silica rule during those two and a half years is unclear. What we do know is that OIRA met with at least 30 different industry groups. We also know that, after taking even more time to respond to OIRA’s input, OSHA in 2016 ultimately imposed the same limit on silica the Centers for Disease Control recommended in 1974.
This delay is not unusual. Under the Obama administration, OIRA routinely blocked environmental rules for more than a year, despite a 90-day deadline for review. The agency blows past deadlines with casual abandon and regularly intervenes in rulemakings for reasons that have nothing to do with economics. Most of OIRA’s proposed changes are substantive and provided without explanation; sometimes, OIRA even changes the basic science underlying a rule. OIRA is required to explain any such changes, but since 2011, has only done so once.
What value, then, does OIRA add? Cass Sunstein, who led OIRA when the agency blocked the silica rule, said OIRA forces agencies to “look before they leap”—as if 40 years’ consideration on the silica standard was not enough. But OIRA’s main contribution to the rulemaking process is cost-benefit analysis—a process through which a small group of White House economists apply criteria they concocted to decide whether rules will live or die.
Charles Dharapak/AP Photo
Cass Sunstein, left, led OIRA from 2009 to 2012.
Cost-benefit analysis sounds like a rational way to evaluate public rulemaking. What’s the problem, one might ask, with trying to figure out whether a rule is worth the cost? The answer is that OIRA’s cost-benefit analysis simply isn’t credible. Many of the numbers that go into it are made up. Costs to powerful industries are routinely overestimated, while the benefits of preventing harms like runaway climate change are wildly understated. And, as President Trump has demonstrated, cost-benefit analysis can easily be rigged to produce politically oriented outcomes.
At its core, cost-benefit analysis is just a way of favoring powerful regulated industries—e.g., construction companies that don’t want to spend money limiting silica exposure—over the beneficiaries of regulation—e.g., the people who don’t want to die because they were forced to inhale silica dust at work. OIRA technocrats create models in which costs, real or not, are easier to calculate than benefits. And no matter what the math says, industry often argues that any cost is a job-killer. That is why every president since Reagan has required that agencies minimize regulations, seeing them as a burden to industry instead of a democratic mechanism to structure markets to promote competition, produce better products, and protect human welfare. The best way to ensure that cost-benefit analysis is not used to help industry is to not require it at all.
In fact, rigging cost-benefit analysis—to weigh benefits over costs—is exactly what advocates of an “expanded” cost-benefit analysis are proposing to do. Economist Todd Tucker suggests that we can fix cost-benefit analysis by translating “qualitative” benefits like human lives and equity into dollars that can be used to offset industries’ cost of compliance. But it is unclear what this proposal is supposed to accomplish. The silica rule, for example, was estimated to produce as much as $4.7 billion in net annual benefits after “difficult to quantify values” were factored in, and to cost the average workplace just over $1,000 to implement. Industry, and the Obama White House, opposed the rule anyway.
Moreover, this balancing is not the way many of our health and environmental statutes are supposed to work. In delegating authority to agencies, Congress gives them the discretion to enforce laws in ways that protect people, communities, small businesses, and the environment. For example, the Occupational Safety and Health Act gives the Department of Labor broad authority to set standards that ensure that “no employee will suffer material impairment of health or functional capacity,” even if they are regularly exposed to hazards like silica in the workplace. The statute was not designed to weigh costs; in fact, the Supreme Court has held that OSHA is not required to engage in cost-benefit analysis before promulgating rules. Nor should we want our health, labor, and environmental statutes to hinge on opaque economic models. Judges should decide whether rules are legal based on the law—not based on political considerations, or how much economists like a rule or not. To suggest otherwise is to willfully shoehorn industry-friendly criteria into laws meant to protect against just this kind of capture.
Fortunately, with a few court-imposed exceptions, neither OIRA nor executive branch agencies are statutorily required to deploy a bevy of economists to weigh the pros and cons of regulation. The only thing that is required is that agencies promulgate rules consistent with the statutes they implement. Using OIRA to give proposed rules a serious second look for legality is sensible. Using OIRA as yet another veto point for corporate lobbyists is not.
OIRA was created by executive order, and its outsized role in our government and long-standing threat to progressive aims can be ended by executive order. This could be accomplished in as little as a few sentences. A president who is serious about using government to serve the people would issue such an order in the first days of his presidency. Doing so won’t fix everything, but it will help to free our regulatory apparatus from industry influence—and make it more responsive to the other communities our democratic government is supposed to serve.
Kalen Pruss is the director of special projects at the American Economic Liberties Project.
Why Bolster the Regulatory Gatekeeper?
BY SHARON BLOCK
In their paper, Todd Tucker and Rajesh Nayak make an important contribution to mapping out a role for OIRA that will enhance our ability to respond to the pandemic and resulting recession. Some in this series have referred to OIRA as a gatekeeper that erects obstacles to progressive regulation. Tucker and Nayak show that with critical reforms OIRA can be a force for making sure that the most progressive regulations get through the gate. In my opinion, the pandemic makes the reimagined role for OIRA described by Tucker and Nayak more important than ever.
First, Tucker and Nayak point out the important role that OIRA plays in coordinating priorities across the administration. This role will be critical in implementing a coherent response to the pandemic—something that has been sorely lacking during the Trump administration. It is likely that a new administration in January still will be facing both a public-health and economic crisis. As we are beginning to see, the policy responses to the public-health crisis necessarily impact the options for dealing with the economic crisis, and the other way around. For example, even if the Treasury and Commerce Departments craft the most progressive regulations to respond to the economic crisis, they may not have the expertise to understand the complex public-health implications of their proposals. At its very least, by coordinating the interagency review process, OIRA can be sure that the expertise of each department is brought to bear on assessing the merit of each other’s measures. If, as proposed by some, OIRA was eliminated, much time could be lost as competing or misaligned regulations are disentangled after they have been promulgated.
But I support the Tucker and Nayak proposal precisely because it goes beyond OIRA’s traditional role. I believe that the next administration is going to have to come in laser-focused on protecting the health and jobs of American workers, who will be in dire physical and economic condition as a result of the Trump administration’s mismanagement of the pandemic, not to mention regressive tax cuts and anti-worker attacks. I would hope that the next administration will ask itself about every single action it takes—how does this action help the lives and livelihoods of American workers, especially workers of color who were disproportionately harmed by the pandemic. Not every federal agency will be well positioned to adequately answer this question about their regulatory priorities. Properly staffed and directed, OIRA can make sure that every regulation makes the best effort possible to advance this urgent priority.
Second, the OIRA reimagined by Tucker and Nayak can address one of the greatest flaws in the current regulatory process: agency capture. While corporations, workers, consumers, environmentalists, and other progressive interests may all have the same rights under the Administrative Procedure Act to participate in the regulatory process, the reality is that corporations have an outsized influence on the process. As Tucker and Nayak point out, progressive interest groups lack the resources to compete with corporate interests in the regulatory arena: “[D]eclining union density and anti-structuralist philanthropic giving make it nearly impossible to raise enough funds to come close to matching the analytic firepower of big business.”
Andrew Harnik/AP Photo
Revoking the harmful Trump-era regulations and promulgating new regulations to advance a progressive agenda will both be vitally important.
Tucker and Nayak’s proposal reimagines this process in a manner that undermines corporate interests’ advantages. Rebalancing the influence of corporations and progressive interests will be even more necessary in the wake of the pandemic. The labor movement may suffer under additional stress as millions of union members remain out of work. Other progressive institutions may be even more under-resourced as they appropriately devote resources to providing support for community members’ basic subsistence. Moreover, some corporations, especially large retailers, may come out of the pandemic with even greater market and public-policy dominance. Thus, without new intervention, agency capture may be even more likely in a post-pandemic environment.
Tucker and Nayak embrace ideas like those advanced by K. Sabeel Rahman for an activist solicitation and facilitation of input—what Rahman calls “participatory regulation”—that can counter corporate capture. Under the Tucker-Nayak proposal, the new version of OIRA could become a force to push against corporate capture, instead of a locus of it. OIRA’s new staff can become experts in how to seek out stakeholders and assess appropriate weight to their input. By developing this expertise, OIRA would serve as a valuable partner for regulatory agencies. The exchange between OIRA and the agencies could ensure that they each serve as a check on capture in either location. For example, Tucker and Nayak recommend giving priority review to regulations that have gone through a participatory regulation process in order to create an incentive for robust engagement by agencies and a closer relationship between OIRA and the White House Office of Public Engagement to facilitate that engagement.
I would add a third role for an expanded OIRA to the list described by Tucker and Nayak—expediting review of Trump-era regulations while balancing affirmative priorities. After four years of the Trump administration, (hopefully) their successor will walk into the White House in January with a long list of detrimental regulations on the books. These regulations will continue to do substantial harm while the new administration plans implementation of its own regulatory agenda. Revoking the harmful Trump-era regulations and promulgating new regulations to advance a progressive agenda will both be vitally important. The new administration, therefore, will have to walk and chew gum at the same time.
Tucker and Nayak’s proposed Regulatory Planning Office within OIRA could play a very helpful role in juggling these competing urgencies. The new office could assist regulatory agencies in identifying regulations for rollback and developing an expedited process for reducing public harm. This kind of bifurcation of roles would leave the agencies free to focus on moving forward an innovative and proactive regulatory agenda—one that will need to be as novel and ambitious as the coronavirus that it will need to tackle.
No one should be naïve about the challenge involved in charting a new course for OIRA. But I believe that Tucker and Nayak have laid out a path to make the most of OIRA’s potential for putting its expertise in service of a progressive agenda. The pandemic has made that path more critical than ever.
Sharon Block is executive director of the Labor and Worklife Program at Harvard Law School.
The Big Misstep in a Worthwhile OIRA 2.0 Proposal
BY TODD PHILLIPS
Todd Tucker and Rajesh Nayak’s new report is a welcome contribution to the debate over how a future president should improve the Office of Information and Regulatory Affairs to ensure progressive policies are enacted quickly and effectively. I agree with nearly all of their arguments except for its continued emphasis on quantified cost-benefit analysis as an integral facet of the regulatory process.
Tucker and Nayak propose two excellent changes to OIRA’s structure, which would enable it to fulfill its current responsibilities more effectively. First, they would split OIRA into two branches with complementary responsibilities. Two-thirds of OIRA’s staff, housed in a Regulatory Review Office, would oversee most of OIRA’s current functions: “ensuring conformity of agency initiatives with the elected president’s priorities and peer review of cost-benefit analysis and science.” The remaining third would staff a new Regulatory Planning Office, a “think tank within government to identify areas of under-regulation” that would “convene conversations across agencies and provide guidance.”
A Regulatory Planning Office would be a boon for developing progressive policy. The two policy-making entities within the Executive Office of the President—the National Economic Council and the Domestic Policy Council—focus on the “big ticket” policy priorities necessary for the president’s re-election. Those priorities often require legislative as well as regulatory changes. As I’ve previously written, OIRA, given its current role and workforce of experts versed in regulatory policy and process, is well situated to identify objectives government agencies can achieve through regulation, without Congress.
A Regulatory Planning Office could also encourage and coordinate the implementation of regulatory priorities across agencies. Imagine a future president with an anti-monopoly agenda. Although the Department of Justice and Federal Trade Commission are the two agencies that can officially block mergers, many other agencies less accustomed to policing anti-competitive behavior can also play significant roles. For example, the Department of Agriculture can protect farmers from agricultural conglomerates, the Department of Health and Human Services can prohibit anti-competitive behaviors of the medical providers with which it contracts, and the Department of Defense can use its purchasing power to ensure competition among manufacturing contractors. OIRA’s Regulatory Planning Office could encourage the USDA, HHS, DOD, and other relevant agencies to include pro-competitive policies in their regulations. The Regulatory Planning Office could even function as a clearinghouse for appropriate regulatory language.
OIRA currently maintains only 45 employees—a level inadequate for its current mandate and wholly insufficient for the changes Tucker and Nayak propose. The proposal would more than triple OIRA’s staff levels to 150, with 100 going to the Regulatory Review Office and 50 to the Regulatory Planning Office. At any given agency, many scientists, economists, lawyers, and other experts work together to draft an individual rule, each bringing expertise and a unique perspective to bear on its contents. Yet only a few analysts at most will review the rule once OIRA receives it. Regardless of the competence and commitment of OIRA’s career civil servants, they lack the manpower necessary to ensure review is done as quickly as necessary for an administration dedicated to using its regulatory authority. The executive order authorizing OIRA’s review of regulations permits the office up to 90 days to consider each rule (providing an additional 30 only in the most significant of circumstances), yet regulations frequently languish at OIRA for months or years.
In the Review Office alone, additional staff would make OIRA’s reviews more effective and more efficient; OIRA analysts could devote more time to individual rulemakings. In fact, Tucker and Nayak propose capping OIRA’s time for review at 45 days. Limiting the time for OIRA review would boost any progressive administration. With health and safety regulations, for example, the difference of 45 days is measured in lives saved.
Patrick Semansky/AP Photo
The Eisenhower Executive Office Building, June 2019
Where I disagree with Tucker and Nayak is their emphasis on quantified cost-benefit analysis (CBA) in the regulatory process, and OIRA’s continued role in policing it. CBA dictates that a regulation should only be promulgated if the rule’s benefits would exceed its costs—an unremarkable and undisputable assertion. Issues arise in its implementation. Often, CBA only looks to costs and benefits that can be quantified, meaning that nonquantifiable benefits such as dignity, equity, and fairness receive minimal consideration.
This month, for example, the Environmental Protection Agency discounted “qualitative benefits and distributional concerns and impacts on minorities” in a regulation because, although “the distribution of potential health effects may indicate more risk to some individuals than to others or more impacts to some groups like tribes than others … in a cost-benefit comparison, the overall amount of the benefits stays the same no matter what the distribution of those benefits is.”
Tucker and Nayak respond that progressives must “get better at quantifying how government action and inaction determines who wins and by how much.” They propose modifications to CBA’s assumptions, and methods for including marginalized communities in policy debates to ensure the costs they bear and benefits they receive are included in the rule’s CBA. But the proposing agency decides which quantified (and unquantified) costs and benefits to consider. There is no guarantee that a future administration won’t undermine OIRA’s role in policing faulty cost-benefit analyses (as has been done with new regulatory budgeting requirements).
If an administration wishes to finalize a rule with costs only impacting the poor and benefits accruing only to the rich, or to decide that some unquantified cost or benefit must be considered to counterweight benefits to a marginalized community, CBA won’t stop it, and neither will career OIRA staff who can be overruled by their political-appointee management. In short, CBA is an inherently political exercise, and tasking civil servants with reviewing or improving CBA won’t make it the panacea Tucker and Nayak envision.
Instead of reviewing agencies’ cost-benefit analyses, OIRA should instead be used to ensure that regulations are upheld in court. The legal standard for promulgating rules is that they cannot be “arbitrary and capricious.” While this standard often does require a rule’s benefits to outweigh its costs, judges also look to nonquantifiable factors. If agencies fail to consider particular effects or erroneously discount considerations of their regulations simply because they are not quantifiable, reviewing courts can overturn the rules. OIRA should use its resources to assist agencies in drafting justifications for their rules that meet this (and any other applicable) legal standard, rather than focusing narrowly on CBA. The additional OIRA staff proposed by Tucker and Nayak would further help ensure progressive regulations go into effect and deliver on their promised benefits.
Although I don’t agree with everything Tucker and Nayak recommend, the next progressive administration should take their proposals seriously. Given OIRA’s immense power in the regulatory arena, a future president must take steps to reform it, to ensure government agencies can implement progressive policy priorities as efficiently and effectively as possible.
Todd Phillips is a government lawyer in Washington, D.C. This article expresses the author’s personal views alone.
This story is also part of the Prospect’s series on how the next president can make progress without new legislation. Read all of our Day One Agenda articles here.
