Three Quick Reactions to Yesterday's House Oversight Committee Hearing on OIRA

Yesterday, the House Oversight Committee held a hearing on “Challenges Facing OIRA in Ensuring Transparency and Effective Rulemaking” that featured as its only witness the head of the White House’s Office of Information and Regulatory Affairs (OIRA), Administrator Howard Shelanski.   Given that regulations are a huge source of consternation on the Hill, and the prominent role that OIRA plays in the federal regulatory apparatus, oversight hearings involving OIRA always have the potential for fireworks.  Despite this potential, these hearings—which take place once a year or so—tend to be pretty staid affairs with some mild grousing over a few key issues that are undoubtedly worthy of congressional attention—including the delays caused by OIRA’s unacceptably long rule reviews and OIRA’s semiannual tradition of issuing regulatory agendas behind schedule and/or at inconvenient times of the year (i.e., before major holidays).   Yesterday’s had all of this, but it had a few big surprises, too.

1. Committee members from both parties had some harsh words for OIRA.  To the extent that OIRA receives criticism at these hearings, it is usually from the Democratic side of the aisle, since OIRA plays a role in blocking and diluting public safeguards, which is more likely to ruffle the feathers of more progressive members of Congress.  However, this criticism has been noticeably muted in recent years as even more progressive Democrats in Congress are less willing to challenge OIRA while it is operating under the control of a president from their own party.  In contrast, Republicans are no fans of safeguards, which makes OIRA one of their natural allies—regardless of who happens to be in the Oval Office.  (Note that OIRA is the only federal agency that Republicans have routinely tried to strengthen in recent years, through a series of antiregulatory bills such as the Regulatory Accountability Act.)  These normal dynamics were not on display yesterday, though.  Instead, both Republican and Democratic committee members asked Administrator Shelanski tough questions about how OIRA conducts its business.  Rep. Mark Walker (R-N.C.) strongly criticized OIRA for not being more transparent about what transpires during rule reviews.  He noted that Executive Order 12866 requires OIRA to publicize “all documents” related to rule reviews.  Rep. Jody Hice (R-Ga.) criticized OIRA for having unclear policies for when it can assert review authority over agency guidance documents.  And Rep. Matt Cartwright (D-Pa.) and Rep. Gerry Connolly (D-Va.) criticized OIRA for enabling regulated industries to dominate the review process, citing a 2011 CPR report which found that this industry dominance skews OIRA’s reviews of regulations.  It will be interesting to see if these same Republican committee members would continue to voice similar criticisms of OIRA in the future if and when the presidency returns to Republican hands.

2. The absurdity of OIRA’s “open door” meetings policy received long-overdue attention.  After Representatives Cartwright and Connolly challenged Administrator Shelanski on industry dominance of OIRA’s meetings, Administrator Shelanski responded with the same defense he has been offering for years:  OIRA maintains an “open door” policy and doesn’t refuse any requests for meetings.  This “open door” policy appears to be tantamount to “neutrality” as far as OIRA as concerned.  This defense is nice in theory, but Representatives Cartwright and Connolly quickly pointed out to Administrator Shelanski why it doesn’t wash in reality.  Rep. Cartwright noted that industry has vastly superior resources, which enable it to request and attend as many meetings as it wishes at OIRA.  Rep. Connolly later added that John Q. Public has to show up to 9-to-5 jobs and cannot be expected to attend regular meetings at OIRA during its normal operating hours (nor can the public afford to send high-priced lobbyists in its stead). I would also add to these criticisms that the only advocacy tool with any real currency at OIRA is cost-benefit analysis, which is theoretically problematic and methodologically slanted against those who are defending public safeguards.  Even if members of the public interest community can overcome the logistical hurdles of attending an OIRA meeting, they are essentially forced to fight with one arm tied behind their back.

3. Administrator Shelanski appears to have undersold how powerful OIRA is.  In one intriguing exchange with Rep. Jim Jordan (R-Oh.), OIRA Administrator Shelanski claimed that OIRA didn’t review a particular regulation involving gun ammunition that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) was working on, because ATF didn’t consider the regulation “significant” and therefore didn’t submit the rule for review.  This is partially true.  But Executive Order 12866, which governs the OIRA review process, clearly gives the OIRA Administrator power to independently determine that a regulation is significant.  (See Section 6(a)(3)(B)).  The OIRA Administrator should not have this power because it gives OIRA too much power to interfere in agency rulemakings.  But it’s right there in the Order.  Whether or not OIRA should have reviewed ATF rule, it is quite clear that OIRA could have done so—if it wished.

The hearing covered a lot of ground, but it unfortunately only scratched the surface of all the problems that exist at OIRA.  We at CPR applaud the members of the House Oversight Committee for asking Administrator Shelanski tough questions about OIRA’s powerful role in the rulemaking process and for making the hearing a genuinely productive one. Hopefully, it portends for better oversight of this powerful but problematic agency in the future, which is essential for restoring public accountability over the rulemaking process and ensuring stronger public safeguards.