Beyond 12866: New CPR Initiative to Promote Administrative Agenda for Progressive Regulatory Reform

James Goodwin

Aug. 25, 2020

This week, CPR is launching its Beyond 12866 initiative, an online platform focused on promoting a progressive vision for rebuilding the U.S. regulatory system. Such a regulatory system will be essential not only to achieving the progressive vision of a more just and equitable society; it will also do the heavy practical lifting needed for implementing key elements of a progressive policy agenda, such as the Green New Deal, Medicare for All, and Black Lives Matter movement.

This initiative begins from the recognition that in the near term, such progressive regulatory reform will need to be accomplished administratively, as opposed to legislatively, given the divisive politics of the issue and ongoing congressional dysfunction more generally. Using such administrative tools as executive orders and memoranda, the president in particular has considerable influence over how the regulatory system operates, and appropriately so given his (gendered language intended, unfortunately) position in our constitutional system.

Unfortunately, even nominally "liberal" presidents have wielded this influence in decidedly conservative, anti-regulatory ways.

Nowhere is this better exemplified than in Executive Order 12866, which along with the Administrative Procedure Act, essentially functions as a part of the "constitution" of our regulatory system. Put in place in 1993 by President Bill Clinton, the order articulates a negative and apologetic vision of regulation, essentially casting the whole enterprise as a regrettable but necessary evil that must be minimized at all costs. It puts that apology into action by establishing the current framework of centralized regulatory review superintended by the White House Office of Information and Regulatory Affairs (OIRA) and conducted through the anti-regulatory lens of cost-benefit analysis – a framework that borrowed heavily from the one initially created by the original nemesis of regulation, President Ronald Reagan.

Whatever its merits might have been at the time, Executive Order 12866 is ill-suited to our current reality, both as a political and policy matter. The regulatory system is an essential and legitimate part of our democracy, and it has a vital role to play in implementing the nation's laws, particularly those protecting health, safety, and the environment. More to the point, the challenges we face are too great to warrant the moderate, incrementalist responses to foreseeable harms that the order is designed to promote. And the robust and energetic regulatory responses that the majority of Americans are calling for and deserve are anathema to the blinkered governing vision it embraces.

Thus, the Beyond 12866 initiative recognizes that the first necessary step toward building a progressive regulatory system is for the next president to repeal and replace Executive Order 12866. In the months ahead, CPR Member Scholars and staff will develop a body of work that takes a critical eye toward the order and details of needed administrative reforms for moving beyond it. This clearinghouse of materials will specifically cover the issues of a new progressive vision for regulation, a new and constructive role for OIRA, and a new approach to regulatory analysis to replace cost-benefit analysis. All will be informed by the need to restore people as primary focus for our regulatory system, rather than corporate profit. And they will be animated by an unwavering commitment to social justice and equity.

To help launch this initiative, I have published a pair of background web articles that detail the progressive case against the two key building blocks of Executive Order 12866: OIRA and cost-benefit analysis. In the OIRA web article, I trace out the secretive bureau's history and the problematic role it has played in the regulatory system for over 40 years. It concludes by outlining some recommendations for building a new agency that puts people first, by helping agencies achieve their protective missions in a timely and effective manner.

In the cost-benefit analysis article, I explain how economists' formalistic approach to the methodology has obtained its influential, albeit undeserved, role in shaping regulatory decision-making. This piece similarly concludes by outlining recommendations for a new approach to regulatory analysis to replace the economists' version of cost-benefit analysis – one that better accords with constitutional principles, legal requirements, and scientific integrity.

Be sure to bookmark the page and check back regularly as we expect to add new materials between now and early next year. Better still, drop me an email, and we'll be sure to send you periodic initiative updates.

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