Want real regulatory reform? Abolish the Office of Information and Regulatory Affairs
One of Washington’s perennial debates is currently playing out on Capitol Hill — regulatory reform. Whether it is how to overhaul the federal permitting process, the usual Republican introduction of the REINS Act and other deregulatory bills, or the various committee hearings focused on the administrative priorities and procedures of agencies, Congress is currently fixated on overhauling various aspects of the regulatory process. But, it is long past time that Congress focused on a bigger and more transformational task — reforming the Office of Information and Regulatory Affairs (OIRA).
One of the least known and most powerful agencies in government, OIRA sits within the Office of Management and Budget (OMB) and has nearly unlimited power over how agencies operate and policy gets implemented. OIRA’s main function and the role in which it wields such overarching power — rule review — is not prescribed in law. OIRA’s role in the rulemaking process is only granted by executive order, which has been reinforced by multiple Republican and Democratic administrations. Even though President Biden signed a day one memorandum to “modernize the regulatory review process,” OIRA has only recently begun to take action on this priority and most of their efforts to date have been to entrench their current role, not materially improve the review process.
The vast amount of OIRA’s organic authorities derive from an Orwellian-sounding law called the Paperwork Reduction Act (PRA). Ironically, the law has very little to do with the actual elimination of paperwork burdens on businesses or individuals who interact with government agencies. Instead, it provides OIRA unilateral and complete control over how agencies collect information from any entity and for any purposes. Yes, current law created a process by which 45 faceless, nameless, generic bureaucrats get total and irrevocable say in how agencies — often full of thousands of lawyers, policy experts, researchers, economists, and regulatory enforcement personnel — can take practically any administrative action, no matter how minor or significant.
What is less known is that in many scenarios where Congress or an interest group has a specific complaint about an agency administrative activity, the actual barrier is OIRA. Because OIRA is housed within OMB, agencies are very reluctant to complain publicly about how long OIRA reviews take, lest they see their budgets get axed in the following fiscal year. Moreover, there are no penalties if OIRA simply declines to review or approve an agency information collection or rulemaking submission, no matter if the complaints stem from Democrats or Republicans.
Simply put, Congress has helped create the chaos and inaction in our regulatory reform process because they have not decided to take on the critical, but unflattering job of overhauling OIRA. The PRA obscures the ability of Congress and the public to get actual answers from the office on critical matters, while allowing OIRA almost unlimited power to obstruct the clear and specific functions of government that Congress requires agencies to perform. Because Congress has not properly defined the appropriate roles, goals, and metrics for OIRA, the office cannot be held appropriately accountable and true “regulatory reform” is impossible.
So, what would any new legislation — call it the “Paperwork Reduction Act Reduction Act” — look like and why would both parties support it? For starters, any OIRA overhaul should radically limit the information collection authorities provided in the PRA, if not abolish them entirely. Congress may choose to prescribe some more narrow and specific public accountability measures on agencies, but by limiting the incredibly broad and intrusive powers OIRA has now, agencies will be more accountable to their congressional oversight committees. This would empower both Republicans and Democrats.
In addition, Congress should provide a new “Office of Regulatory Affairs” with clear authority over the review and approval of agency rulemakings and should set the definition for what constitutes a “major rule.” This would take the current process for making such determinations out of executive orders and allow the legislature to have a robust and public debate on the appropriate role for centralized review within the executive branch. Such a debate might lead to provisions that provide, say, automatic OIRA approval of certain rules or information collections after a certain period of inaction (something Democrats would likely support) with more rigorous cost-benefit analysis for agency rules and a stronger ability for OIRA to reject rules that don’t conform to congressional intent (items Republicans would likely support).
More importantly, a Paperwork Reduction Act Reduction Act would focus on the actual namesake of such a bill — reducing the PRA. This would mean stripping out current OIRA authorities related to issues such as information technology, procurement, privacy, or records management, either by giving those responsibilities more specifically to agencies or transferring those functions to other parts of OMB that have the relevant staff and expertise. For the functions this new office would retain or gain, Congress should require more transparency of the office’s review procedures, including more public reporting of OIRA decisions regarding agency administrative actions. At a minimum, OIRA should have the same transparency requirements as do all other agencies.
Lastly, any OIRA reforms should move the office into its own operating fund. This would allow the Appropriations Committees to have a direct say every year on the appropriate level of resources for the office. Such direct pressure from Congress would ratchet up accountability and transparency in a most necessary way.
We are a much different country now than in 1995, the last time Congress opined on the role of OIRA. While centralized review of agency rules and other significant actions within the executive branch is likely never going to end, it is long past time the legislature had a robust, public debate on exactly how much power, purview, and privilege such a tiny, unaccountable office in the White House should have. Now, more than ever, both parties should embrace this opportunity to scrap the PRA, reimagine OIRA, and enable a more functional, transparent, and accountable government that effectively serves citizens and industry.
Matthew T. Cornelius is a former senior professional staff member on the Senate Homeland Security and Governmental Affairs Committee. He also served in several senior executive branch policy roles, including at the White House’s Office of Management and Budget and the General Services Administration. The views here are his personal opinions.