There were no long lines outside the hearing room last week when Senator James Lankford (R, OK) called the Senate Homeland Security and Government Affairs Subcommittee on Regulatory Affairs and Financial Management to order. There was no partisan posturing for cameras nor protesters clad in matching t-shirts. Instead, the few observers in the room got to see congress at its best, doing what it is supposed to do.
Chairman Lankford and Ranking Member Kyrsten Sinema D, AZ) are working collaboratively to improve how regulations are developed and evaluated. Their hearing was a constructive, civil dialogue aimed at informing two bills they introduced jointly this week. The bills would 1) engage public input earlier in the regulatory development process and 2) provide for retrospective review of regulations to evaluate whether they are achieving their objectives.
Engaging Public Input Early in Rulemaking
For more than 70 years, government agencies have been required to seek public comment before issuing new regulations. Yet opportunities for public engagement often come after agencies have made key policy decisions. Agencies view their proposed rules as legal documents, written to defend their selected regulatory approach against possible litigation. This motivates them to “circle the wagons,” narrowing the menu of alternatives and the evidence they consider before the public has an opportunity to engage. This can be frustrating for affected parties who—unless they are well-connected—find they don’t have a voice in the process.
To level the playing field for the biggest ticket rules, the “Early Participation in Regulations Act of 2019” would require agencies to issue advance notices of proposed rulemaking. These “ANPRMs” would share the agencies’ preliminary thinking on whether a problem requires a regulatory solution and what different options are available. They could elicit public input on available data, alternatives, models, etc., before policy decisions are framed, or positions entrenched.
The ANPRM requirement should not slow the rulemaking process for a couple reasons. First, 90 days is not a long time considering that agencies often take years studying a problem and evaluating regulatory options before they issue a proposed rule. Perhaps more important, by inviting input on deliberations that would otherwise have taken place behind closed doors, advanced notices may end up streamlining the subsequent notice-and-comment process. In many cases, early engagement could lead to more efficient analysis at the proposal stage and fewer surprises during public comment. While there will certainly be cases where an ANPRM would not serve the public interest, the bill provides exceptions for those.
Managers in the private sector and in government programs financed through the fiscal budget routinely measure and evaluate outcomes, but ex post review has received little attention in the regulatory arena. Instead, agencies develop detailed ex ante analyses, without ever looking back to see if they were accurate.
The Setting Manageable Analysis Requirements in Text (SMART) Act would tackle that head on by by requiring agencies to include in major regulations a framework for how they will measure effectiveness and to incorporate plans for gathering the information necessary for ex post evaluation. With this information, agencies would have 10 years to examine the rule’s actual benefits and costs, evaluate how well it accomplishes its objectives, and determine whether it should be retained, eliminated, or modified to achieve better outcomes.
The SMART Act’s requirements could generate the feedback agencies need for an evaluation mindset allowing them to learn from examining regulatory outcomes and apply those lessons to improve future rules.
Modest but Powerful
The job of the legislature is to legislate. Senators Lankford and Sinema are using their leadership positions to do just that, and neither seemed to mind that their hearing room wasn’t filled with cameras last Wednesday. Their two bills offer relatively modest, yet potentially powerful, changes to current rulemaking practices. If enacted, they can help make regulations more transparent and accountable and ensure that they are working as intended for the American people.