Panel Endorses Guidelines for ‘Midnight Rulemaking’

Posted June 14, 2012 at 4:47pm

A federal advisory panel today approved new guidelines for how Congress and future administrations should handle the flurry of rules promulgated in the final months of an outgoing administration.

The Administrative Conference of the United States — a 101-person panel made up of representatives from each of the government’s 50 agencies — unanimously approved the guidelines, which are nonbinding, but could still play a central role in the next White House transition.

The practice, known in Washington, D.C., as “midnight rulemaking,” has rankled scholars and government reformers on the left and right since the 1980s, when an avalanche of rules issued at the end of the Carter administration — including one requiring airbags in new automobiles — became the subject of Republican attacks.

Only hours into his own administration, President Barack Obama ordered a freeze on the midnight rules issued by his predecessor.

But the recommendations, the product of two-year investigation led by White House appointee Paul Verkuil, would give Obama more or less the same freedom to issue last-minute regulations as previous administrations. And, with that, valuable political cover from Republican accusations that he is strangling the economy with burdensome regulations.

“I don’t think there are any sharp departures from current practice,” said Jack Beermann, a professor at the Boston University School of Law, who was hired to write the guidelines. But, he added, “there is nothing partisan going on here.”

Still, today’s vote came at an unmistakably political time, as the economy sputters and polls show Obama neck and neck with presumptive Republican presidential nominee Mitt Romney.

The midnight rules project was first proposed in May 2010 by Verkuil, the Obama appointee charged with reinventing the Administrative Conference of the United States, a 44-year-old government agency that had gone unfunded since 1995.

Since then, conservatives have coalesced around Romney, bringing the possibility of a January transition into focus.

The goal was to investigate the long-term consequences of rules made in the final months of an administration — rules such as the one written by the Reagan administration subjecting transportation workers to random drug testing or the controversial Bush administration law allowing federally funded health care institutions to turn down abortion requests on the basis of religious concerns.

Ultimately, the conference concluded that midnight rules may not be as bad as they sound.

“The perception of midnight rulemaking as an unseemly practice is likely worse than the reality,” the recommendations read. “A dispassionate look at midnight rules issued by past administrations of both political parties reveals that most were under consideration long before the November election and many were relatively routine matters not implicating new policy initiatives by incumbent administrations.”

The guidelines, which are not binding, would officially give lawmakers the authority to allow agencies to delay new regulations for up to 60 days without notice or comment.

“This would provide a clear legal basis for what every administration — Republican and Democrat — has done since 1981,” Beerman said.

The proposal also encourages future administrations to adopt any midnight rules as early as possible in an effort to “avoid an actual or perceived rush” and to publicly explain the timing of any “significant” rule issued in the last 60 days of the administration. A rule is considered “significant” if it is likely to have an annual effect on the economy of $100 million or more.

Susan Dudley, who served in the Bush administration’s Office of Management of Budget and now directs the regulatory studies department at George Washington University, is a staunch critic of midnight rules and voted for the recommendations today.

“I think they are sound and focus appropriately on midnight regulations that are rushed with inadequate analysis and opportunity for public comment without constraining a president’s legitimate authority to implement statutory,” she said in an email to Roll Call.

The new guidelines come as Congressional Republicans and tea party protestors ratchet up their criticism of the administration’s regulatory agenda.

“This is part of a larger problem,” said Max Pappas, vice president of government affairs and public policy at the conservative advocacy group FreedomWorks. “It is attractive for the elected officials to give more power to the unelected officials so they don’t have to be responsible at the ballot box.”

Sen. Ron Johnson (Wis.) and 35 other Republican Senators are pushing a much stronger legislative approach that would prevent outgoing administrations from issuing “significant” rules after the November elections. In the House, 11 Republicans have signed on to a companion measure sponsored by Rep. Reid Ribble (Wis.).

Senate Minority Leader Mitch McConnell (R-Ky.) and Speaker John Boehner (R-Ohio) sent a letter to Obama in April urging him to avoid last-minute regulations.

“The committees of jurisdiction should examine their recommendations,” said Brendan Buck, a spokesman for Boehner. “But given the continued economic challenges our nation now faces, we continue to insist that the president withhold from issuing any such rules after the end of the current fiscal year.”