Agency Aims to Curb Rules by Lame-Duck Presidents


WASHINGTON — It is a political tradition that is almost as old as the White House: a president on the way out, unconstrained by electoral considerations, fast-tracks a flurry of contentious regulations in the waning hours of his term, sometimes even cutting short review from industry or the public.

As he was leaving, President George W. Bush expanded Justice Department surveillance powers, relaxed rules on certain types of coal mining and altered protections for endangered animals. President Bill Clintonpushed through new rules on chemicals in drinking water and on workplace injuries caused by repetitive movements.

Prompted by the fury touched off by such lame-duck orders, an independent federal agency that aims to streamline the administrative procedures of federal agencies is nearing the end of its review of recommendations aimed at curbing this practice known around Washington as midnight rule making.

The recommendations from the agency, the Administrative Conference of the United States, are fairly tepid.

Even if they are finalized in June, as expected, they would allow President Obama to do more or less what his predecessors did, though with a greater ability for Congress and a new administration to delay the regulations from taking effect.

The agency’s proposal is just part of the larger political gamesmanship, likely to intensify in coming months, over what presidents can and should do during the months between an election and inauguration.

If the president adopts the agency’s recommendations this summer, they could prove politically useful for him at a time when Republicans are stepping up attacks on his administration for what they describe as overzealous regulation. The president could take some credit for having — at least ostensibly — tried to impose protections against last-minute regulations.

Mr. Obama issued an executive order this month mandating that existing regulations be periodically reviewed to see whether they provide the predicted benefits at a reasonable cost. Republicans remain worried about how Mr. Obama might handle last-minute regulations if he loses the election. And not without reason: studies have shown that midnight rules are more likely when a president serves only one term.

In April, Senator Mitch McConnell of Kentucky, the Republican leader, and House Speaker John A. Boehner sent a letter to Mr. Obama saying he would be “ill advised” to issue last-minute regulations that they said could distract a new Congress and potentially a new administration.

“We believe that issuing a raft of midnight regulations would be inconsistent with your January 2009 commitment to transparency and accountability in the rule-making process,” they wrote.

Congressional Republicans are trying to get in front of the problem. In hopes of imposing tougher rules than the Administrative Conference has proposed, they are pushing legislation that would prevent presidents from issuing most kinds of midnight regulations.

Senator Ron Johnson, the Wisconsin Republican who introduced the bill in the Senate, said his aim was simply to prevent lame-duck administrations from adding what he said were burdensome regulations that are “chains on job creation” and “holding down our economy.”

“I don’t think we need to increase regulation; we need to limit it,” he said. “If this administration is inclined to reform or reduce regulation, I’d like to work with them on that.”

Susan E. Dudley, a member of the Administrative Conference, said she believes the recommendations are a step in the right direction because they could help agency directors resist the temptation to rush through policy changes during their final days in office.

“It’s like Cinderella leaving the ball,” Ms. Dudley, who served in the Bush administration’s Office of Management and Budget and is now a professor at George Washington University, said of agency officials who try to set rules “before they turn back into ordinary citizens at noon on Jan. 20.”

Among the recommendations, the agency would call for administrations to refrain from proposing new rules during a president’s final months in office, except in “emergencies,” and for Congress to authorize new administrations to delay their predecessor’s midnight rules for 60 days.

The recommendations also call for departing administrations to share more information about new rules with incoming administrations, and for departing presidents to explain their timing publicly in cases where their last-minute regulations could have major economic or policy implications.

The conference, which was established in 1964, conducts research and makes recommendations to the president or agencies relating to various aspects of the administrative process. It has been reviewing midnight rule making since 2010. The conference’s chairman is Paul R. Verkuil, a regulatory scholar and Obama appointee.

“Midnight regulations have presented challenges, both perceived and real, for incumbent and incoming administrations since the Carter years,” Mr. Verkuil said.

Jason Schwartz, legal director for the Institute for Policy Integrity at the New York University School of Law, praised the agency’s draft recommendations but warned that an overreaction to last-minute rule making can create problems of its own.

He said the legislation being considered in Congress, for example, goes too far because it prevents federal agencies from not only proposing regulations during the midnight period but also approving regulations that were proposed before the midnight period.

“If a rule was proposed a long time ago, and has gone through all the required analysis and public scrutiny and internal vetting, then finalizing it in the midnight period doesn’t raise concerns for us,” he said.

He added that he believes the Administrative Conference’s proposal will do a better job than the legislation at addressing the real problem of midnight rule making, which is that administrations eager to get their regulations in place truncate the amount of time allotted for analysis and public comment.

Other regulatory experts have complained that the legislation is biased because it would allow presidents to repeal regulations during the midnight period but not add new ones.

“The bill would stop efforts to protect the public but would expedite those that would help big corporations,” said Gary Bass, a professor at Georgetown University’s Public Policy Institute. Representative Reid Ribble, a Wisconsin Republican and a sponsor of the bill in the House, rejected those criticisms.

The legislation, he said, simply protects the right of an incoming president to overturn regulations from a prior administration “through the appropriate channels.”

“If a rule has been in the pipeline for months or years, there is obviously some sort of controversy surrounding it,” he said.

Mr. Ribble’s bill, which several Congressional staff members said has a good chance of being passed, has 11 co-sponsors.

Its companion bill in the Senate, sponsored by Mr. Johnson and 35 others, has less certain prospects, these staff members said.

Leave a Reply

Name not required for anonymous comments. Email is optional and will not be published.

Please Answer: *