Designating OIRA early as the lead project manager would allow for a more effective rulemaking process.
The federal rulemaking process is the common pathway for many major policies that shape the lives of Americans, such as pollution limits, food safety requirements, or worker protection standards. Debates over this process—and in particular, the White House and interagency review facilitated by the Office of Information and Regulatory Affairs (OIRA)—have for decades been part of larger discussions of how to make government more effective.
The rulemaking process has numerous steps to squeeze into an unforgiving calendar. Accordingly, its overlooked but central challenges are project management and dispute resolution. To meet these challenges—and to foster more responsive and durable policymaking—a new administration should clarify and elevate OIRA’s role as the process manager for federal rulemakings.
This clarification is essential to create stronger accountability for hitting timelines and resolving stubborn debates. This strategic change depends on direction and leadership; fortunately, it does not require new funds or new legislation. It does, however, require moving past longstanding debates over the role of OIRA and cost-benefit analysis, which ultimately inject counterproductive uncertainty when certainty and clarity are key.
I spent two years helping oversee rule reviews at OIRA, where it quickly became apparent that senior officials at both federal agencies and the White House often focused on policy design and could lose sight of timelines and other project management fundamentals. It also became clear that bogged down clashes over policy were the biggest sources of delay for priority rulemakings, sometimes setting back rules by months.
Any delays—whether due to requests for policy tweaks or dragged-out decisions—had a major cost because they did not just push back the release of a policy. Rather, they could impact the rule’s ultimate viability. Issuing a rule that achieves 90 percent of the policy goal—and sticks—has obvious advantages over issuing a rule later on when it may not complete any judicial review during a President’s term or is vulnerable to repeal via a Congressional Review Act resolution.
There is a ready fix. OIRA, the steward of the White House regulatory review process, must maintain a laser focus on deadlines and project management. This approach can and did make an enormous difference in the final two years of the Biden administration, yielding significantly higher productivity without compromising policy goals or public participation. A vital ingredient of this success was having OIRA clearly running point on shepherding the rulemaking process forward. OIRA actively pressed agencies to move up their timelines and hit deadlines, drove resolution of thorny disputes among agencies and White House policy councils, and enforced the resolution of those disputes to avoid decision-making churn.
A new administration should learn from this experience by solidifying and clarifying OIRA’s process management role. OIRA should be explicitly recognized as the responsible party for holding all parties to clear deadlines, speeding review for policy priorities, and facilitating the end to stubborn policy disagreements. In particular, a new administration should prioritize the nomination and confirmation of an OIRA administrator early on so that an individual with the political heft of U.S. Senate confirmation can enforce deadlines and policy decisions and provide political leadership within OIRA to ensure that it proactively steers policy priorities forward. An immediately empowered OIRA can ensure that a new administration is making the most of each day and moving forward efficiently on key priorities from the get go.
Having OIRA serve as an arbiter and traffic cop to shepherd priority rules toward completion is an essential managerial component in a context where individual agencies and White House policy councils are rightfully focused on their particular policy angles. In a recent report, I lay out in greater detail what this approach would look like—describing these changes as well as additional tangible reforms that could improve the rulemaking process without compromising transparency or requiring major new legislation or funding.
Importantly, this approach means setting to the side two longstanding debates that have consumed a significant share of the discussion about federal rulemaking reform: debates over eliminating OIRA altogether and about the use of cost-benefit analysis.
Questions over the role of OIRA and cost-benefit analysis at the start of the Biden administration resulted in nearly two years of uncertainty, delaying the selection of a nominee to lead the office. This delay left counterproductive ambiguity at the heart of the rulemaking process.
Moreover, these debates overlook that some type of centralized review and consideration of costs and benefits is inevitable in agency rulemaking. Although agencies may wish otherwise, the White House will want to review significant agency policies to ensure that they align with presidential priorities and reflect coordination among overlapping agencies. Accordingly, even if OIRA were eliminated, an analogous coordination body would necessarily be recreated elsewhere within the White House bureaucracy. Months, if not years, would be taken up with a reorganization, leaving a decision-making void in the interim. In the end, any new entity would present the same management challenges that inevitably come with OIRA’s role as the steward of a high-pressure review process.
Similarly, whether the White House requires cost-benefit analysis or not, the affected parties will leave no stone unturned to publicize and litigate the costs of regulations that impact their business. Eliminating cost-benefit analysis would functionally cede the field of debate to affected entities. And even if a White House decided to eliminate any administrative cost-benefit requirement, this development would not change judicial doctrines that increasingly underscore the importance of cost-benefit considerations in regulatory review. Opportunities to streamline and improve the cost-benefit analysis process are well worth exploring, but arguments to eliminate it entirely ultimately detract from these types of specific, actionable conversations.
Policymaking needs to be undertaken efficiently to answer public concerns. A new administration should treat every day as a sprint to achieve its rulemaking goals. The process ideas laid out above would bring the decision-making clarity essential to meet that aim.
This essay is part of a series titled, “Rebuilding the U.S. Regulatory System.”
