Earlier this month, progressive nonprofits eagerly scanned the list of the incoming Biden administration’s agency review teams. What caught their eye and triggered their alarm was the landing team for the Office of Management and Budget. Not only was the team heavy on movers and shakers in Big Tech, including executives at Lyft, Airbnb and Amazon Web Services, and light on public interest advocates, it also included one person reformers never expected to see: Bridget Dooling.
Dooling is currently a research professor at the Regulatory Studies Center, a conservative think tank based at George Washington University that takes a pretty dim view of agency regulations. If she is not hostile to protective regulation, “she’s certainly strongly biased against it,” or at the very least, very skeptical, says James Goodwin, a senior policy analyst with the progressive think tank Center for Progressive Reform, which promotes the value of protective regulations. The possibility that “she is going to be the one … setting the tone for regulatory policy at the Biden administration is exceedingly concerning for those of us in the advocacy community,” Goodwin says.
From 2007 until 2018, Dooling held several positions at the Office of Information and Regulatory Affairs (OIRA), an obscure but powerful agency within OMB. She recently penned an op-ed that suggested that rulemaking by independent agencies such as the Consumer Financial Protection Bureau, the Consumer Product Safety Commission and the Securities and Exchange Commission—deliberately shielded from White House influence by Congress—would benefit from White House scrutiny through OIRA.
OIRA essentially is the “umpire” that sits at the intersection between White House staff and most agency bureaucracies, Goodwin says. And it has enormous power over the quality of regulations that a new administration ends up pushing forward. Regulation is particularly crucial to a Biden White House because it likely is the best tool for reform that the new administration has at its disposal, Goodwin says. Unless two more Democratic senators are elected next January, the president-elect likely won’t be able to pass much reform legislation through a Republican Senate. “Using regulation to address [the nation’s] problems will boil down to OIRA in a lot of key ways,” Goodwin notes.
Choosing Dooling and members of Big Tech companies, with a free-market, regulation-averse culture, for the OMB landing team is “sort of like waving a white flag,” signaling that the administration has “given up on … using the regulatory system as a policymaking tool,” Goodwin says.
Why OIRA is important
Agencies create regulations to implement federal laws that protect Americans from polluted air and water, unsafe drugs and consumer products, and dangerous workplaces. But agencies don’t get an automatic green light to issue regulations. For most agencies, that process involves OIRA review. OIRA can stop a proposed agency rule dead in its tracks at two points in the process — when it is first proposed, and when it is just about ready to be finalized. When it is in draft form, OIRA listens to both White House political advisers and industry voices, and often decides to weaken a rule based on concerns about the projected costs to business and the ensuing political fallout for the president. The public is largely not privy to all the exchanges between OIRA, industry and the White House that result in the changes an agency is asked to make. And while the rulemaking process does offer the public an opportunity to comment on proposed rules, OIRA has the last word. Goodwin calls the process “fundamentally anti-democratic.”
While public interest advocates can also meet with OIRA and make their case for strong rules, it’s not easy, Goodwin says, because OIRA’s culture is fundamentally “anti-regulatory.” The agency was created during the Reagan administration and is historically staffed by economists who are focused on assessing every rule in monetary terms. That’s easy for businesses to do, because they can estimate how much a new rule will cost in terms of new equipment or labor or technology. But the benefits of a rule are more diffuse and far harder to monetize. OIRA does factor in the value of a human life, but it is difficult to quantify quality of life issues. For example, if a rule reduces air pollution, it will reduce a child’s asthma attacks, and that might mean fewer sick days out of school, less worry for parents and perhaps other opportunities — like summer camp instead of summer makeup courses — that enrich lives and even increase future prospects. But those benefits are nearly impossible to calculate.
When an OIRA administrator is focused on cost-benefit analysis, he says, protective rules are often weakened as they undergo OIRA assessment. That’s what happened during President Barack Obama’s first term, Goodwin says. Then, OIRA Administrator Cass Sunstein was a huge fan of cost-benefit analysis. (He wrote an entire book on the challenges of estimating the monetary value of a human life.) As a consequence, Goodwin says, “Obama got nothing or very little done on regulation. It was just a missed opportunity of four years.” Sunstein served until 2012.
Ironically, it is only administrations with agency heads who actually want to protect the public that actually feel OIRA’s power and sting. Goodwin says that in the Trump years, agency heads were averse to strong protective rules. That essentially gave OIRA nothing to do. “Paradoxically, the administration most hostile to regulations in modern history was also the administration where OIRA was the weakest,” he says.
What would make a good OIRA administrator?
Goodwin did not want to propose individuals. But he says that an OIRA head should be someone who, “throughout their career, demonstrated a commitment to protecting the public” through regulation, saying, “that’s the bare minimum we should expect.” In addition, an administrator should “specifically appreciate the value of regulations for helping marginalized communities, communities of color or the working poor,” he says. Ideally, a new administrator would actually know what it’s like to live in a “front-line community” where the impacts of deregulation are most felt.
That person would understand, for example, how much regulations could improve the quality of life in neighborhoods near polluting industries. And of course, any OIRA administrator ought to be free of conflicts of interest, he says, “free of any unacceptable corporate ties as lobbyists, corporate officials, anything that could undermine their independence.”
