The Progressive Case Against OIRA

The White House Office of Information and Regulatory Affairs (OIRA) has long been known as the “most powerful government agency you’ve never heard of.” That such a thing should exist at all in a democracy like ours is just this side of terrifying.

Make no mistake, though, corporate interests have heard of OIRA – and more to the point, they have long known that if they wanted to wield influence over the regulations that affected them, that was the place to do it. As for the rest of us, to the extent that we are able to engage in the rulemaking process at all, we do so through the increasingly marginalized notice-and-comment process established by the Administrative Procedure Act. On paper at least, these comments, filed in response to regulatory agencies’ proposals, are supposed to serve as the main avenue for the public to weigh in on pending regulatory policies; in reality, they have become an elaborate sideshow, while the real action takes place in OIRA’s black box.

OIRA has been short-circuiting the rulemaking process in this manner since early in the Reagan administration, when Executive Order 12291 first empowered it to review draft regulations being developed by executive branch agencies before they could be released to the public. While that order was eventually repealed, Executive Order 12866 – which replaced it and which remains in effect today – retained the core of OIRA’s centralized regulatory review “framework.”

OIRA’s centralized review framework includes the following key features:

• OIRA retains wide latitude to review nearly any agency rule it wishes, but especially those that are likely to be of greatest interest to politically powerful industries.
• Agencies cannot share with the public their proposed and final rules until OIRA has completed its review of them. OIRA uses this “gatekeeping” authority to demand changes to the draft rules it receives, or even to block them altogether.
• The primary metric that OIRA using during its review for evaluating the “quality” of regulations is cost-benefit analysis. This standard is irrelevant to or even prohibited by nearly every statute that authorizes the regulations that OIRA reviews. But for OIRA, it has the desirable features of being (1) malleable enough to justify nearly every change it demands and (2) reliably biased against protective safeguards, reinforcing OIRA’s broader efforts to weaken or block rules opposed by politically powerful interests.

The foundation that this framework is built upon – and that gives it its real strength – is OIRA’s abject lack of transparency. OIRA’s centralized review is by far the least transparent step in the rulemaking process, and we shouldn’t be surprised that both political officials in the White House and well-connected corporate interests have taken full advantage. For its part, OIRA encourages behind-closed-doors lobbying, and corporate interests opposed to the public interest have dominated this opportunity. There they find a receptive audience in OIRA’s staff, which is stocked with economists and others who by training or ideology are skeptical of regulations. Working together outside of public view, OIRA staff, White House political officials, and corporate lobbyists enjoy relative freedom to elevate narrow political interests to the exclusion of sound policy, science, and even the law. To the extent that any changes that are made in the process require a public justification, one can be readily manufactured ex post by means of a contrived cost-benefit analysis.

Corporate interests have worked for decades to rig nearly aspect of the rulemaking process in their favor against the public. OIRA’s centralized review is a key element of that strategy. And it will continue to serve as an insurmountable obstacle to the achievement of progressive policies as long as it remains in place. Whether you’re working to advance Medicare for All, the Green New Deal, or some other essential policy goal, all progressive advocates should unite behind a complete overhaul of OIRA, refocusing its mission toward protecting people and the environment, and away from its current role as the last wall of defense between corporate America and statutory obligations it finds inconvenient.

OIRA in the Trump Era

No presidential administration in U.S. history has been as hostile to regulatory protections for health, safety and the environment as the Trump administration. Unsurprisingly, the role of the most anti-regulatory office in the federal government – OIRA – has changed as a result. OIRA's role as the “wrecker of regs” has become less important for the simple reason that rules arrive on its doorstep already deeply slanted toward corporate interests. Under Trump, agencies are helmed by individuals whose principal qualification seems to be fundamental opposition to the mission of the very agencies they lead. Thus, by the time draft proposed and final rules arrive at OIRA, they’ve already been tailored to satisfy lobbyists for affected corporations.

Accordingly, OIRA’s intensive reviews of agency rules, which in the past commonly missed deadlines by months or even years, have given way to the Trump OIRA’s alacritous reviews of the administration’s biggest deregulatory actions in record time. Any objective “quality control” role OIRA might have played in the past as part of the centralized review process has gone out the window, too. The cost-benefit analyses that Trump administration’s agencies have produced in support of their rollbacks have been scandalously poor, while the administration has accumulated a historically poor record in the courts, losing the vast majority of its cases in which it sought to defend its rollbacks against legal challenge.

Instead, much of OIRA’s work under Trump has focused on promoting the administration’s implementation of Executive Order 13771, the so-called “two-out, one-in” order. This pernicious directive requires federal executive agencies to eliminate at least two of their existing rules before they can issue any new “significant” rules. On top of that, it demands that the costs associated with any new rules be fully “offset” or more through cost reductions achieved by eliminating existing regulations. Trump administration agencies liberally cite this order in defense of their aggressive efforts to weaken or repeal a slew of Obama-era safeguards. It has also provided them with convenient cover for not pursuing regulatory responses to new and emerging threats to the public interest, such as PFAS in drinking water or the outbreak of the COVID-19 pandemic.

Building an OIRA that Puts People First

The first step in overhauling OIRA is to clearly redefine its mission: A progressive OIRA will be singularly focused on helping agencies achieve their protective missions in a timely and effective manner. To do that, OIRA can take advantage of its unique position within the executive branch to work with executive branch agencies to identify the obstacles they face in implementing protective safeguards, whether those obstacles are unique to the particular agency or more cross-cutting in nature. OIRA can then work to develop and promote necessary reforms to address those obstacles, including through the adoption of new innovative administrative policies or, where applicable, advocacy for legislative changes.

To be sure, OIRA will still need to conduct a centralized review function, but this process must be fundamentally overhauled to bring it back within the bounds of the law and constitutional principles. First and foremost, that means restoring agencies as the primary locus of decision-making power. The limited role left to OIRA would be facilitating inter-agency coordination; serving as an honest broker to resolve interagency disputes; and providing a “quality control” check on rules with an eye toward surviving judicial challenges and promoting public understanding of how the rule will make lives better.

It will be impossible to accomplish such a radical reorientation without also changing OIRA’s organizational culture. That will involve changing the composition of OIRA’s workforce so that it includes fewer economists and more individuals with the training and experience to understand the human impacts of regulation. It will also require placing individuals in leadership positions who have a demonstrated commitment to the public interest goals of statutes, and not those who have passed through the revolving door from Corporate America. Above all, it will require an unflinching commitment to complete transparency. OIRA’s involvement must become the most transparent step in the rulemaking process to ensure the integrity and legitimacy of all of its actions.

Learn More About OIRA and the Need for a Progressive Overhaul

CPR Member Scholars and staff keep a careful eye on OIRA, posting frequently to CPRBlog about its work, and also keeping up on legislative oversight and proposals that involve OIRA. Read the most recent posts here. Peruse all of our OIRA-focused reports and white papers here.

Visit our clearinghouse page on OIRA, cost-benefit analysis, and the need for reform of the regulatory system.