Judging from President Obama’s first term, the job of White House “regulatory czar” could prove of out-sized importance these next four years, with the head of an office few know exists ending up with the power to trump the authority of Cabinet members throughout the government. Cass Sunstein, the former occupant of the position, was perhaps the most influential overseer of the regulatory process ever, and it's not hard to imagine that his replacement will be equally powerful. But I'd propose that the next Administrator of the Office of Information and Regulatory Affairs (OIRA) have a very different job description.
Sunstein made himself a strong ally of business, doing his best to put the President in a position where he could withstand attacks by his Republican opponent for being tuned out to the needs of the “job creators.” This strategy did not work particularly well. President Obama was subject to withering attacks from big business and its political allies, and won reelection in the end by explaining himself as a populist concerned about the middle class. For this reason, and because the recent crisis over compounding pharmacies reminds us how badly regulatory agencies need to be strengthened, I'd urge the President to appoint a czar who will work to make sure that regulation and its enforcement are as effective as they are efficient from an economic perspective. I hope, in other words, that the President listens to his own campaign rhetoric and picks someone who can lead OIRA to develop a reoriented regulatory mission, one based on a positive vision for protecting the public.
For three decades, OIRA Administrators have described their task as one of number-crunching and economics, making it sound as if they're just adding up regulations' projected costs and benefits and seeing which side of the equation wins because it is objectively bigger. But their unwritten, self-defined mission is quite different. They have seen their task as standing guard on federal agencies to make sure they don’t upset industries too much, serving as a court of last resort for big business, and sparing the President from political damages. This role has not served anyone particularly well – except for industry.
But there's no law that says this is how OIRA should function; it's a habit that has grown up over the years. President Obama's next OIRA Administrator needs to see outside that shortsighted lens. In his 2008 acceptance speech at the Democratic convention, President Obama said that government should “protect us from harm and provide every child a decent education; keep our water clean and our toys safe.” That's the mission that the next OIRA Administration needs to make his or her own.
In area after area, our history of regulation is one of progress – but with difficult challenges ahead. Our cars are much safer than they used to be, yet tens of thousands still die on the roads each year; our workplaces are much safer, but thousands are killed on the job from preventable causes; our air is cleaner than it was decades ago, but toxic pollutants still sicken Americans in droves every day. Congress has passed laws — like the Clean Air Act, various auto safety laws, and the Occupational Safety and Health Act — that direct the executive branch to adopt regulations to minimize these hazards. But solutions remain slow in coming, even years behind schedule. All of these problems represent tremendous opportunities to develop progressive policies, and the next OIRA Administrator must see them as such, and not as an exercise in the minimization of political risk to the President.
The OIRA Administrator should be someone mindful of the most important trends in regulatory history. One pattern is that big companies always complain about proposed rules and predict economic doom if the President allows the agencies to do their jobs. Most of our biggest health and safety advances came in the face of such dire predictions. To take their word for it, the auto industry was supposed to have been destroyed several decades ago by clean air laws. Oil companies opposed taking the lead out of gas, predicting that the cost of driving would be prohibitive. Protecting the public often takes tremendous courage in the face of dire predictions.
The regulatory policy threats to our country are big, but controlling them will not cause the economic stagnation that industry says awaits. The regulatory czar should be someone who sees preventing the next BP oil spill, the next mine explosion, or the next financial meltdown — regulatory failures, all — as Job One, and who can envision an agenda of how to confront such threats in the future.
The federal health, safety and environmental agencies work hard, but face incredible obstacles. They have small budgets; they are constantly under attack by industries and their congressional supporters; they work under laws that are in many cases decades old, and only allow for miniscule fines for companies that break the rules, fines so small that they barely get violators' attention.
In the new term, OIRA should focus on helping these agencies achieve the missions Congress set for them. Its leader should ask, “what are the ongoing threats to Americans’ health and safety, and what can we do to help agencies confront those threats?”
Where threats fall in the domain of multiple agencies, OIRA should assist in coordinating. Take the issue of imported products, for example. Agencies that protect our food, toys, and prescription drugs are all working to ensure that foreign-produced products are safe, and it’s a challenging, fast-evolving issue. This is the kind of cross-sector problem where a reoriented OIRA could help.
The challenges for health and safety progress are immense, but so is the opportunity in the next four years. The danger of inaction is immense, too. The next food-borne illness outbreak or refinery explosion should not be seen as an event needing an emergency response, but a threat that must be proactively avoided or mitigated.
For the next regulatory czar, we don’t need a number-crunching specialist or a political operative. We need someone who can look at the threats and help implement strategies to protect people, in accordance with the laws. There’s no shortage of work ahead.
For the President, this could be a little-noticed appointment. But it may be one of the most important ones he makes, because the person he selects will hold enormous sway over the entire regulatory agenda of the President's second term, cutting a wide swath across all the regulatory agencies of the federal government. Given the gridlock in Congress, the reality is that, in many areas, the best chance the President has to implement his vision of a government that protects Americans from environmental hazards, unsafe products and dangerous working conditions, is not to legislate, but to regulate aggressively in these areas. That means that the person he appoints to this job could have an enormous effect on the President's legacy. He should choose carefully, therefore, thinking about the public interest, not the reaction of the business community over the short term.
Rena Steinzor, CPR President; Professor of Law, University of Maryland Carey School of Law. Bio.
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