Wait grows on OMB’s regulatory review

The Obama administration is more than two months late in releasing a review of its regulatory process, leading critics to charge it is failing to meet its promise of transparency.

Many suspect the stalled nomination of Cass Sunstein, a Harvard Law School professor and friend of President Obama’s, for administrator of the Office of Information and Regulatory Affairs (OIRA) may be the reason the report has yet to be released. Nevertheless, some say the administration’s inability to produce the review is leaving it out of step with its pledge for a more open government.

{mosads}“It is inconsistent with their promise of transparency,” said Rick Melberth, director of regulatory policy at OMB Watch, a public interest group. “What had started as a very public process has not stayed that way.”

On Jan. 30, Obama issued a memorandum to the heads of all executive-branch agencies asking them to submit recommendations on how best to streamline and strengthen the regulatory process. Within 100 days of the memo, Office of Management and Budget (OMB) Director Peter Orszag, in consultation with the other agency heads, was to submit a set of recommendations to the president for a new executive order on federal regulatory review.

“Far more is now known about regulation — not only about when it is justified, but also about what works and what does not,” Obama wrote in the memo. “In this time of fundamental transformation, that process — and the principles governing regulation in general — should be revisited.”

But that 100-day time period ended in early May and nothing has been released to the public since. Melberth sees one of two scenarios at play: Either Orszag has submitted recommendations to Obama but has not released them to the public, or he still has not finished crafting them.

“We just don’t know what those recommendations might have been,” Melberth said. There has been “virtual silence” on the review from the White House since the public comment period ended in late April. The call for regulatory review attracted interest from all sectors in Washington, earning comments from the AFL-CIO to the American Chemistry Council.

An OMB official said Orszag has submitted the recommendations to the president but they have not been released to the public.

“The director has submitted a set of recommendations to the president, in compliance with the president’s memorandum and within the 100-day timeframe. As decisions based on those recommendations are approved, they will be made public,” said the OMB official. “As for any concern about openness, the administration has put in place many new and important transparency and accountability tools. The commitment to openness is a serious one, and will continue to expand.”

Rena Steinzor, president of the Center for Progressive Reform, a think tank for liberal academics and scientists, said she did not know what has happened to the review.

But she suspects that Sunstein’s confirmation is key to the review being released, a point echoed by other observers of OMB. If confirmed, the Harvard professor would head the regulatory affairs office, which reviews every federal regulation issued across the government. For any new executive order dealing with review of regulations, that office would be the primary agency.

“I am not optimistic for it to come out because Cass Sunstein has been very bad on regulatory issues,” Steinzor said. “He is expected to come up with something that is more demanding and harder on the other agencies.”

Steinzor, a University of Maryland law professor, believes the report ordered by Obama will strengthen a 1993 executive order that consolidated reviews of federal regulations. That order, she said, has been used by past administrations to weaken rules that promote safety and health. Sunstein has not been well-received by Steinzor and other liberal supporters of Obama.

{mosads}“From a conservative perspective, he is about as good as you can hope from this administration,” said David Mason, a visiting senior fellow at the Heritage Foundation, a conservative think tank. Mason said Sunstein has earned praised from the right, including an endorsement by The Wall Street Journal editorial board, because the Harvard professor believes in review of regulations and a rigorous cost-benefit analysis during the rulemaking process.

For now, Sunstein’s nomination, which was sent to the Senate in late April, is stalled and is unlikely to come up before the August recess. Sen. John Cornyn (R-Texas) has placed a hold on the nominee.

“Sen. Cornyn finds numerous aspects of Mr. Sunstein’s record troubling, specifically the fact that he wants to establish legal ‘rights’ for livestock, wildlife and pets, which would enable animals to file lawsuits in American courts. Sunstein’s musings about instituting a Fairness Doctrine for the Internet are equally as troubling,” said Kevin McLaughlin, a spokesman for Cornyn.

Sunstein co-edited Animal Rights: Current Debates and New Directions, a 2004 collection of essays that discuss whether law should ensure animal welfare. Cornyn will not release his hold on the nomination until he meets with Sunstein to discuss such views, McLaughlin said.

In the meantime, several are waiting for the administration to release Orszag’s recommendations to Obama on how best to review regulations.

“If they change the process, it could affect regulatory outcomes for the rest of administration,” Mason said. “We won’t know until the report comes out.”