The Black Box of OIRA
OIRA oversees the whole regulatory state. We probably know more about the inner workings of the CIA.
The Office of Information and Regulatory Affairs (OIRA) oversees government regulation across the federal government. Some portray it as a guardian of rationality, others as biased in favor of industry. Public information about OIRA is so limited that it’s impossible to know one way or the other, due to the veil of secrecy that surrounds the place.
Here’s a list of a dozen things we don’t know, but should, about this secretive office:
- How is the place organized? The EPA Office of Policy has an organization chart. Not so OIRA.
- Who are the staff, what are their qualifications, and how much experience do they have? There’s word of mouth about this, but no hard data. How much expertise the staff has in epidemiology, econometrics, modeling, or other specialties is unknown. Where do OIRA folks go when they leave? Is this a revolving door, where people move to lobbying groups when they move on? Do they go to other parts of government? Academe or think tanks?
- What do the staff actually do? It’s not clear how much time staff members themselves spend reviewing economic analysis by agencies, let alone scientific determinations or modeling choices. Or do they mostly direct traffic, outsourcing most of the analytic work, and if so to whom?
- How many agency personnel are detailed to OIRA? This is something that we know takes place, but we don’t know how commonly, who gets detailed, or whether those people are particularly qualified.
- What role do the staff play in processing comments on proposed regulations by other agencies? Which agencies are most active and to what extent are they relaying expert knowledge versus political stances or lobbying efforts by industry? Do the staff filter the recommendations or simply relay them to agencies?
- How much delay does OIRA cause? We do know something about this, because there are a lot of rules that OIRA is formally considering, and those get logged. But we also know that OIRA frequently intervenes informally much earlier in the process, although we don’t know any details or how much delay it may cause.
- How much leverage does OIRA’s head have within the White House? This presumably varies from administration to administration, but we don’t know how much. We also don’t know much about how other groups within the White House oversee regulation, such as the Domestic Policy Council or the Council of Economic Advisors.
- How much does OIRA rewrite regulations? We only rarely get a glimpse of OIRA revisions, which suggest that the red ink flows freely. Those may not be typical. Nor do we know about the extent to which the revisions relate to costs and benefits, and how much they address other kinds of issues.
- Do the political appointees or permanent staff stand up for professional values against their political bosses, as we know has happened in other agencies, or are do they simply march dutifully behind? The Trump Administration was prone to making a charade of cost-benefit analysis. Still, no one at OIRA seems to have felt compelled to act as a whistleblower or resign, unlike professionals at other agencies or even other appointees in other parts of the White House.
- Does OIRA follow its own guidance documents? It’s not unusual for bureaucratic organizations to develop their own informal policies, which can supplement and sometimes contradict public documents. To what extent is that true of OIRA?
- Does the review process vary for different types of regulation? Some regulations are reviewed by OIRA because they impose large costs on industry. Others are reviewed for noneconomic reasons, perhaps because they are novel or they are politically controversial. How does the review process differ, if at all?
- How do agencies respond? Does an agency like EPA generally cave in to OIRA’s revisions, or does it push back either within OIRA or by mobilizing other sources of support? How often do agencies win such battles?
The answers to these questions would allow us to begin to understand how OIRA actually operates. That would be the first step to determining its actual contribution to governance.
Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…READ more