How the Bush administration "guides" regulators over cliffs

Posted by Lindsay Beyerstein at 8:44 AM on March 2, 2007.

Genevieve Smith has an excellent article in the American Prospect about how the Bush administration is quietly breaking the government. Having lost control of the legislative branch, the White House giving itself more power to over government agencies by installing apparatchiks to oversee regulatory agencies.

Smith writes:

In January, the White House released an executive order updating guidelines for federal regulatory agencies. The new executive order increases the administration's hold on the rulemaking process by requiring a political appointee within each agency to approve all new regulations and White House review of agency guidance documents.

Guidance, in Washington speak, is an informal interpretation or clarification of existing policy -- including suggestions for best practices and technical descriptions -- that tells businesses how the agency plans to enforce the regulation. In tandem with the executive order, the White House's Office of Management and Budget issued a memorandum to agencies offering new best practices for agency guidance documents. OMB's "Good Guidance Practice Bulletin" would require internal review of significant guidance documents by senior agency officials, as well as notice and comment on guidance documents deemed "economically significant."

Together with the executive order, the bulletin extends the reach of the Office of Information and Regulatory Affairs (OIRA), a little-known but powerful office of the White House, into an area of policy that had in the past been left up to experts within the agency. When the modern administrative structure of the U.S. government was first created under the Administrative Procedures Act in 1946, the stringent requirements for promulgating regulation were not applied to agency guidance. Guidance from agencies was never intended to receive the same bureaucratic scrutiny as regulations because, for one, unlike regulations, guidance documents don't carry the force of law. [Am Prosp.]

These new "regulatory policy officers" will have the final say about whether the recommendations of experts found their way into official advisories about how to implement policy. Worse, the communications between the RPO and the agency would be exempt from the Freedom of Information Act. So, for example, if the experts at the Mine Safety and Health Administration issue some inconvenient guidance about the implications of an occupational safety law, the RPO will be able to secretly squelch that advice.

Ezra has a very good point:

This isn't bad simply because it opens the process up to political distortion, but because political appointees often lack expertise. I recently sat next to a Department of Energy political appointee whose experience for working on nuclear power was being a member of the Bush/Cheney reelection team. It's easier to reject regulations when you're both ideologically opposed to them in principle and don't actually understand the failures they're remedying.

It's hard to say how much difference this extra layer of political "guidance" will make in the short-term. It's not like our federal agencies are pouring out radical worker- and consumer-friendly advice as it is. The Bush administration has already done its best to fill government agencies with Republican cronies. Back when the Republicans controlled congress, that was easier to do.

Remember how well that worked out for Michael Brown and FEMA? The Republicans have already driven many of the real experts out of agencies like the FDA and the CDC and replaced them with party stalwarts in need of patronage appointments. Bush recently installed a stooge for the mine industry to run the MSHA. The list goes on and on.

The idea that the White House has given itself permanent, secret political influence over regulatory agencies is truly disturbing. I trust that a Democratic administration would put real experts back in the federal bureaucracy. However, I'm not confident that future presidents will voluntarily give up the extra layer of political influence.

[Ezra Klein]

Tagged as: msha, oira, politics, republican, bush

Lindsay Beyerstein a New York writer blogging at Majikthise.