An evaluation of the Bush administration reforms to the regulatory process.

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George W. Bush

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An evaluation of the Bush administration reforms to the regulatory process.

The first term of the Bush administration was a busy time for aficionados of regulatory policy. In addition to heated debates on a number of substantive issues (such as the control of mercury emissions and the requirement that employers pay workers overtime), there have been a number of critical reforms to the regulatory process. The origin of these reforms has been the Office of Information and Regulatory Affairs (OIRA). Many of these reforms have been championed by the controversial administrator of OIRA, John D. Graham.

These reforms include the increased role of electronic rulemaking, the implementation of the Information Quality Act (IQA), (1) the requirement that agencies use peer reviewers for critical information underlying regulations (Office of Management and Budget [OMB] 2002), the use of "prompt letters" from OIRA to persuade agencies to take particular regulatory actions, (2) increased transparency in OIRA review of agency regulations, and the hiring of scientists in OIRA. (3) The Bush administration has been accused of being anti-regulation, and a number of these reforms have been cited as evidence by pro-regulation interest groups for this anti-regulatory philosophy (Citizens for Sensible Safeguards 2004).

This article is a review of the regulatory process reforms championed by Graham's OIRA in the first term of the Bush administration. (4) Rather than attempting to view them as pro-regulation or anti-regulation, I believe it is more useful to ask to whom these various regulatory reforms likely give power in the regulatory process and whether they raise the cost of issuing a regulation. I use existing analyses of individual reforms to argue that these reforms are likely to largely empower the president and those with access to the Executive Office of the President. Many also raise the cost of the regulatory process to agencies. The latter of these impacts is clearly anti-regulatory in its results but the former is not necessarily so.

This article will argue for a more accurate criticism of the Graham reforms: that they will likely concentrate rulemaking power in a small group of interests with more established access, influence, and power. (5) The reforms could further tip the balance of power in regulatory policy toward powerful interest groups and away from agency bureaucrats, private individuals, and small businesses. Although e-rulemaking in particular has been described as opening up the regulatory process, it is being implemented in a way that is more likely to render the public comment process meaningless than to increase the impact of public involvement (Noveck 2004).

I also highlight the ongoing need for empirical assessments of the Bush administration reforms. The expectations of those academics who have analyzed the reforms are very different from the expectations that the administration has voiced for these changes. When such empirical assessments occur, they should not be limited to discussions of the pro- or anti-regulatory effects of the reforms but rather should examine whose voices have become more influential in the regulatory process as a result of the reforms.

This article is structured as follows: the next section examines theories of the administrative state put forward by Croley and others and maintains that the best way to evaluate administrative reforms is to determine whom they empower within the regulatory process. Then I briefly summarize the regulatory reforms of the past four years. Follo...

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