Inventing The Scales
Perhaps the only useful part of Congress's inability to confirm a new head of the Office of Information and Regulatory Affairs is that the vacancy is prompting a series of discussions about how regulations ought to get made. Mark Kleinman has an interesting post about the arbitrary nature of some of the key elements regulators use to measure the costs and benefits of individual rules, including the argument that relative position isn't used to calculate impact, less likely large impacts can be ignored because they're speculative, and the fact that we've simply accepted figures for certain measures, like the cost of a human life. And Ezra Klein chimes in that "There's a lot of focus in American politics on doing better things. But there's rather less attention paid to doing things better. If we change the process by which we pass laws, for instance, we might eventually arrive in a world in which we can actually pass good laws, rather than compromising them down to the point of maximum incoherence."
This strikes me as particularly important at a time when Congress is so sluggish and deadlocked that the regulatory process looks positively sleek and efficient in comparison. When I talked to the Chamber of Commerce for a story I was working on about the business community's agenda for National Journal a while back, one of the Chamber's vice presidents pointed out that the regulatory process was in some ways more difficult for them than a Democratic Congress. In Congress, there are filibusters, and holds, and the need for super-majorities. In the regulatory process, there are comment periods, and cost-benefit analysis, but there are many fewer obstacles for an administration to get what it wants. Under those circumstances, it's particularly important that good principles, rules, and processes be in place.
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ABOUT THIS BLOG
Government Executive Staff Correspondent Alyssa Rosenberg takes a look at news affecting the management and operations of the massive federal bureaucracy.
Okay back to basics. Rulemaking started as an attempt to speed up the cumberson process of government adjudication case by case. Judge Kennishaw Mountain Landis [yes that was his real middle name and he was a huge guy] was the father of the modern administrative state leading to enactment of the Administrative Procedures Act of 1947! The most significant reform of that act in my opinion was to add FOIA. But there is another statute the Federal Register Act of 1934 (sic?) which requires many things the government does to be published in the FEDERAL REGISTER! That Act should also be reviewed by Congress. But n the meantime those of us "interested" persons who actually read at least the index to the daily federal register could get a lot of help by the OFFICE OF THE FEDERAL REGISTER which is part of NARA. Why? Because that office wastes more time than most of those dealing with the government and it should do better! Here goes? On MONDAY's the Federal Register would consist only of ANPR [advance notice of proposed rulemaking] or NPR [notices of proposed rulemaking] and also any emergency notices or procedures requiring immediate action {this is also true the rest of the week]! On Tuesday's all FINAL RULEMAKINGs or INTERIM RULES would be published. Wednesday would be the day for all notices of whatever nature unless previously published because of an emergency nature (and then they could have a brief cross reference to that earlier publication)! OKay what about Thursdays? Well I would reserve that for the President and OMB or OPM or other guidance impacting ops of the Executive Branch. Again emergency stuff could always be published possibly just a separate section of the daily federal register. And Friday's would be a notice of update of all public laws signed that week and which ones required the Executive Branch to do something and an extract of th at mandate and when that mandate must be fullfilled. Hey I know this gives some discretion to the Office of the Federal Register, but they are good people and deserve it. Oh yes! When an Executive Order amends rather than repeals or supercedes another EO how about within the next month providing the full text of that order has it reads after amendment? The problem it is hard for the interested citizen to know what language is in effect. And a simple listing of all unamended Executive Orders still in effect could be published annually. The theory in part of both the Federal Register Act and the APA was disclosure to the public of the activities of their government! It is still ours (the citizens) I hope and not a sole-owned subsidiary of someone or some group we do not know?
William R. Cumming Posted Wednesday, September 2, 2009 5:43 AM