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Revoking the harmful Trump-era regulations and promulgating new regulations to advance a progressive agenda will both be vitally important.
This article is part of our policy roundtable on “The Future of the Regulatory State.”
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.
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.”
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.
