Executive Order 13422, Part 4
Partisan opposition erupts
8 Feb 2007 in Regulatory Policy
We thought we'd finished discussing Executive order 13422, President Bush's recent amendment to the Clinton-era Executive order on centralized regulatory review.
On Tuesday, February 13, a pair of House subcommittees will hold a hearing to criticize the Executive order.
The hearing has three scheduled witnesses. Two of them are opponents of OMB review when the president is a Republican but generally silent when the president is a Democrat. One is a supporter of OMB review under both Democratic and Republican presidents, and supervised it for a Democratic president for at least six years.
David Vladeck
Vladeck is a longstanding opponent of OMB review, risk assessment, and benefit-cost analysis when the White House is under Republican management but a supporter of all three when the office is held by a Democrat. For example, in a 1995 article, Vladeck criticized President Reagan's Executive order 12291 for "requiring elaborate risk assessments before agencies could regulate" even though EO 12291 did not include any such requirements. He also praised praised Executive order 12866 for "eliminat[ing] much of the red tape and [giving] the agencies more flexibility" even though its regulatory philosophy and centralized review procedures are very similar. Vladeck appears to credit EO 12866 for requiring agencies to prepare Regulatory Impact Analyses (RIAs) for draft regulations with impacts exceeding $100 million, but that provision was first in EO 12291 and was merely retained in the Clinton executive order.
Rick Melberth
In November 2006 Melberth became director of federal policy for OMB Watch, an activist group that from its founding has been an opponent of OMB oversight. OMB Watch "was formed in 1983 to lift the veil of secrecy shrouding the White House Office of Management and Budget." OMB Watch has been a consistent opponent of OMB review during periods in which the president has been a Republican, but generally silent when the president has been a Democrat. The organization announced its opposition to Executive order 13422 the same day it was issued. Although Melberth's testimony has not been posted by the House subcommittees holding the hearing, presumably it will follow the outline published on January 18.
Sally Katzen
Katzen served as President Clinton as administrator of the Office of Information and Regulatory Affairs from 1993-98, as deputy director of the National Economic Council from 1998-99, and deputy director for management of the Office of Management and Budget from 1999-2001. Of the three Democrats testifying, Katzen is clearly the most knowledgeable about regulatory policy in general and OMB's role in particular.
The Hearing
The subject of the hearing is whether Executive order 13422 constitutes "good governance" or "regulatory usurpation." Vladeck and Melberth can be expected to testify in favor of the latter interpretation, and Melberth's views (or at least those of the organization for which he works) are already on record. Katzen's views are not as easily predicted because of her actual expertise.
Previously we've analyzed the three major elements of Executive order 13422:
- By extending OMB review to guidance documents that "may reasonably be anticipated" to have effects commensurate with economically significant regulations;
- By altering the "market failure" criterion in the criteria for OMB review; and
- By revising the existing regulatory planning process by allowing lesser officials than agency heads to certify agencies' Regulatory Plans and requiring their Regulatory Policy Officers to be presidential appointees instead of civil service employees.
After the hearing, we will review the testimony of these witnesses.
We've also noted that in 2002, President Bush removed the vice president from any role in regulatory oversight. We cannot locate any commentary, positive or negative, about this action. Given the agenda of the hearing -- "good governance or regulatory usurpation?" -- it will be interesting to learn the witnesses' views concerning whether removal of the vice president was an act of "good governance" or "regulatory usurpation."
