Executive Order 13422, Part 5a
The House subcommittee oversight hearings
14 Feb 2007 in Regulatory Policy
Today we start a series summarizing the testimony from all eight witnesses who appeared yesterday before two separate House oversight subcommittees.
The hearings began at 12:00 noon and did not end until about 4:00 pm. Acting OIRA administrator Steven Aitken testified on behalf of the Bush administration. There were two minority witnesses (William Kovacs and Paul Noe) and five majority witnesses (David Vladeck, Rick Melberth, Curtis Copeland, Peter Strauss, and Sally Katzen). Katzen testified at both hearings. Neither hearing was well attended by Members.
Testimony was professional but generally followed partisan lines, with minority witnesses supporting the Executive Order and majority witnesses opposing it. That is not to say that any witnesses' testimony lacked merit -- rather, the merit of their views must be distilled from the partisan tone and setting.
Aitken represented the views of the Bush administration, although he made a point of noting that he has been a career attorney at OMB for 18 years. That experience would be expected to make Aitken institutionally partisan on OMB's behalf. Similarly, Copeland is a longstanding employee of Congress -- first with the General Accounting Office (later Government Accountability Office) and now the Congressional Research Service. That would make him similarly institutionally partisan on behalf of Congress, a fact specifically noted by more than one Member of the Judiciary subcommittee.
In general, Members displayed very limited familiarity with the substance of Executive Order 13422 or its descendants, or the issues posed by centralized Executive regulatory oversight. For example, Chairman Brad Miller of the Investigations and Oversight Subcommittee of the Committee on Science and Technology admitted during Q&A to having not read the 1,032-word document prior to the hearing. Chairman Miller's opening statement was free of partisanship (though the press release his office issued was not), and the opening statement of Rep.Linda Sanchez, Chairwoman of the Judiciary Subcommittee on Commercial and Administrative Law, was highly partisan.
Some Member questioning of the witnesses was predictably partisan. For example, in a discussion of OIRA's policy and practices concerning the conditions under which it allows third parties to discuss draft rules under review, Judiciary Committee Member Rep. Delahunt used his time questioning a minority witness to analogize the issue to the Bush administration's 2001 National Energy Policy Development Group, significant records of which have not been disclosed. But the two are not comparable. OIRA's procedures involve ex parte communications concerning a draft regulation, which are highly restricted under the Administrative Procedure Act The NEPDG concern policy development prior to the submission to Congress of legislative proposals (which Congress then disposed as it saw fit) and regulations (which are subject to notice and comment under the APA). In 2004, the Supreme Court validated the Administration's refusal to disclose information and vacated lower court rulings that would have permitted extensive discovery. Subsequently the case was ordered dismissed. (The NEPDG case is more like the 1993 Clinton administration Health Care Task Force. The cases differ in some respects, perhaps most importantly the presence of persons not employed by the federal government on the HCTF but not on the NEPDG. In short, the Bush administration apparently took note of the HCTF litigation and designed the NEPDG not to follow its example.)
