The lobbying you have never heard of: targeting the US President’s Office of Information and Regulatory Affairs

Lobbying has become a pervasive part of American politics with hundreds of organizations lobbying bills across thousands of issues. But, write Simon F. Haeder and Susan Webb Yackee, legislative lobbying is only half the story. In new research, they look at the lobbying of federal rulemaking agencies, such as the President’s Office of Information and Regulatory Affairs (OIRA). They find that despite a lack of media coverage, intense lobbying of OIRA occurs, as evidenced by the often substantive changes in OIRA’s final rules compared to the draft rules submitted for review

While Congress sits on its hands, presidents are making policy by regulation

Despite what most of the public may think, the vast majority of policymaking by the federal government comes in the form of rules and regulations rather than through new laws. Using the 2010 Affordable Care Act as a case study, Simon F. Haeder and Susan Webb Yackee write that the move from law-based to regulatory policymaking has given Democratic and Republican presidents alike unprecedented powers that often do not need to take into account the views of Congress

When US presidents push for regulatory reform, liberal agency rules may be first in the firing line

One of the concrete achievements of the Trump administration in the last 18 months has been the rapid removal of a great deal of existing regulation. But what kinds of regulations tend to be recommended for modification or removal? Simon F. Haeder and Susan Webb Yackee have studied the role of the Office of Information and Regulatory Affairs or OIRA in government rulemaking and find that OIRA frequently recommends changes to rules proposed by agencies which tend to lean to the left politically, such as the Environmental Protection Agency. As Trump moves to expand OIRA’s powers, they warn that this may have significant implications for policy outcomes felt across the United States for the years to come

Regulation, Delegation, and the Affordable Care Act

In a long-waited decision, the U.S. Supreme Court recently sided with the Trump Administration in exempting employers who have a “moral or religious objection” from the requirement to provide their employees with contraceptive health care coverage. The controversy emanated from the Patient Protection and Affordable Care Act’s (ACA) mandate to provide coverage for all preventive health care services free of cost. The so-called contraceptive mandate has been one of the most contentious parts of the ACA. The recent ruling caps off, at least temporarily, a decade of numerous lawsuits and Supreme Court showdowns. Litigating the ACA—a signature achievement of the Obama Administration—in front of the Supreme Court is nothing new. In fact, the nation’s highest court will hear yet another challenge to the ACA later this year about the entire law’s constitutionality. The Court’s most recent decision, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, did not directly emanate from the ACA itself. Instead, this dispute arose from an objection to the Trump Administration’s interpretation and implementation of the ACA’s contraceptive mandate through the rulemaking process. In the modern administrative state, rulemaking fulfills a crucial role in governance because, when enacting statutes, the U.S. Congress routinely delegates the task of filling in important policy details to federal bureaucrats. Indeed, with Congress increasingly gridlocked, the vast majority of policymaking in the United States today may be of a regulatory more than a legislative nature. Yet each final regulation essentially holds the same force of law as a congressionally passed statute. One of the clearest examples of the increasing importance of rulemaking to U.S. policymaking can be found in the ACA, which we focus on in a recent article. We collected data on all regulatory actions related to the ACA that have been undertaken since its enactment, providing the first exploratory analyses of both the law itself and its ensuing rulemaking activities. Our dataset contains the universe of regulatory actions from both the Obama and Trump Administrations that were triggered by the ACA. These data allow us to illustrate the large amount of policy-making activity going on “under the hood” of the ACA, while much of the original statutory text remains on the books. Although observers in the health policy and administrative law fields have long recognized the vast amount of regulatory delegation contained in the ACA, the numbers presented in our analyses are truly staggering. By our count, the final version of the ACA amounted to 961 pages, or about 475,000 words, which so far have triggered 265 unique rulemaking activities. These regulations translated to almost 9,000 pages, or more than 9,000,000 words, that were finalized by the end of 2019. A more detailed look at the regulatory actions provides further insights about congressionally delegated authority and what executive branch agencies do with that authority. The largest initiator of ACA-related regulatory activities was, unsurprisingly, the U.S. Department of Health and Human Services, and particularly the Centers for Medicare and Medicaid Services, which conducted two-thirds of all rulemakings. The Internal Revenue Service followed with 17 percent of rulemaking under the ACA, just above the Employee Benefits Security Administration, with 11 percent. The vast majority of ACA-related rulemakings were deemed by these agencies to be “significant,” economically or for other reasons. Interestingly, only 132 of the 265 ACA-related regulatory actions followed the standard procedures governing agency rulemaking, while the others took non-standard paths—such as being issued as interim final rules. Moreover, 35 of the 265 rules were merged with other rules, and 37 rules were ultimately withdrawn. Such actions make it incredibly complicated to track regulatory activity. We also noticed patterns in the types of regulatory instruments used over time. The use of interim final rules—which do not require public participation in the rulemaking process—early in the life of the ACA can be explained by resource constraints and time pressures. Both the Obama and Trump Administrations, however, continued to use this type of regulatory device over time. We also noticed a spike in rulemaking activity from 2012 to 2014 that coincided with the implementation of many large components of the ACA, such as Medicaid expansion. Finally, although regulatory activity has slowed under the Trump Administration, we found that a large percentage of rule withdrawals occurred during this Administration’s tenure. Yet behind all these numbers emerges an interesting dilemma that raises significant questions about the extent and specificity of congressional delegation. Indeed, both the Obama and Trump Administrations have taken advantage of the ACA’s vast delegation of policy-making power to the public bureaucracy. Regulatory policymaking offers executive actors large amounts of flexibility, allowing Presidents to initiate significant policy changes depending on their administrations’ goals and preferences, rather than those of Congress. To explore these issues, we focused on two examples that illustrate the importance of policy implementation through the rulemaking process as well as how policy content can change due to personnel shifts in presidential administrations. One example is the contraceptive mandate. In implementing the ACA, the Obama Administration sought to walk the tightrope of expanding contraception coverage while not offending those with religious objections to birth control. After a series of challenges to Obama-era rules, this issue remained unresolved as the Trump Administration took over. Once in office, the new Administration abruptly changed course—relying on interim final rules—to provide much more flexibility to employers, allowing them to opt-out of providing birth control coverage to employees on religious and moral grounds. The other case study, which was equally controversial, focuses on short-term limited duration insurance plans. In this instance, the Obama Administration had sought to protect the ACA insurance marketplaces by strictly limiting the availability of plans that only offer very limited protections. Once more, the Trump Administration’s regulatory implementation—which, again, relied heavily on interim final rules—almost wholly reversed course from its predecessor and eventually found support in the appeals court. So, where does this leave us? The ACA is perhaps the most controversial and consequential piece of legislation to come out of Congress in the last decade, and accordingly, it has received significant media and scholarly attention. Its regulatory reach, however, has seen much less in the spotlight. By providing the first detailed analysis of the regulatory enterprise triggered by the ACA, our article puts numbers to the anecdotal evidence that regulations have gained dominance in U.S. policymaking. Our findings also bring renewed focus to age-old questions about how much congressional delegation is permissible under the U.S. Constitution. The ACA, and our analysis of it, also raises much thornier questions about the specificity of congressional delegation. If Congress delegates its powers so vaguely that two administrations can credibly offer diametrically opposite policy implementation activities, maybe delegation has gone a step too far. As we note in our article, “scholars would be well advised to pay close attention to all forms of rulemaking activity in their analyses of the ACA or other health care statutes.” The data we collected also suggest that policy advocates, citizens, and the media must pay greater heed to the implementation of major statutes—and not just to their passage

Regulation, Delegation, and the Affordable Care Act

In a long-waited decision, the U.S. Supreme Court recently sided with the Trump Administration in exempting employers who have a “moral or religious objection” from the requirement to provide their employees with contraceptive health care coverage. The controversy emanated from the Patient Protection and Affordable Care Act’s (ACA) mandate to provide coverage for all preventive health care services free of cost. The so-called contraceptive mandate has been one of the most contentious parts of the ACA. The recent ruling caps off, at least temporarily, a decade of numerous lawsuits and Supreme Court showdowns. Litigating the ACA—a signature achievement of the Obama Administration—in front of the Supreme Court is nothing new. In fact, the nation’s highest court will hear yet another challenge to the ACA later this year about the entire law’s constitutionality. The Court’s most recent decision, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, did not directly emanate from the ACA itself. Instead, this dispute arose from an objection to the Trump Administration’s interpretation and implementation of the ACA’s contraceptive mandate through the rulemaking process. In the modern administrative state, rulemaking fulfills a crucial role in governance because, when enacting statutes, the U.S. Congress routinely delegates the task of filling in important policy details to federal bureaucrats. Indeed, with Congress increasingly gridlocked, the vast majority of policymaking in the United States today may be of a regulatory more than a legislative nature. Yet each final regulation essentially holds the same force of law as a congressionally passed statute. One of the clearest examples of the increasing importance of rulemaking to U.S. policymaking can be found in the ACA, which we focus on in a recent article. We collected data on all regulatory actions related to the ACA that have been undertaken since its enactment, providing the first exploratory analyses of both the law itself and its ensuing rulemaking activities. Our dataset contains the universe of regulatory actions from both the Obama and Trump Administrations that were triggered by the ACA. These data allow us to illustrate the large amount of policy-making activity going on “under the hood” of the ACA, while much of the original statutory text remains on the books. Although observers in the health policy and administrative law fields have long recognized the vast amount of regulatory delegation contained in the ACA, the numbers presented in our analyses are truly staggering. By our count, the final version of the ACA amounted to 961 pages, or about 475,000 words, which so far have triggered 265 unique rulemaking activities. These regulations translated to almost 9,000 pages, or more than 9,000,000 words, that were finalized by the end of 2019. A more detailed look at the regulatory actions provides further insights about congressionally delegated authority and what executive branch agencies do with that authority. The largest initiator of ACA-related regulatory activities was, unsurprisingly, the U.S. Department of Health and Human Services, and particularly the Centers for Medicare and Medicaid Services, which conducted two-thirds of all rulemakings. The Internal Revenue Service followed with 17 percent of rulemaking under the ACA, just above the Employee Benefits Security Administration, with 11 percent. The vast majority of ACA-related rulemakings were deemed by these agencies to be “significant,” economically or for other reasons. Interestingly, only 132 of the 265 ACA-related regulatory actions followed the standard procedures governing agency rulemaking, while the others took non-standard paths—such as being issued as interim final rules. Moreover, 35 of the 265 rules were merged with other rules, and 37 rules were ultimately withdrawn. Such actions make it incredibly complicated to track regulatory activity. We also noticed patterns in the types of regulatory instruments used over time. The use of interim final rules—which do not require public participation in the rulemaking process—early in the life of the ACA can be explained by resource constraints and time pressures. Both the Obama and Trump Administrations, however, continued to use this type of regulatory device over time. We also noticed a spike in rulemaking activity from 2012 to 2014 that coincided with the implementation of many large components of the ACA, such as Medicaid expansion. Finally, although regulatory activity has slowed under the Trump Administration, we found that a large percentage of rule withdrawals occurred during this Administration’s tenure. Yet behind all these numbers emerges an interesting dilemma that raises significant questions about the extent and specificity of congressional delegation. Indeed, both the Obama and Trump Administrations have taken advantage of the ACA’s vast delegation of policy-making power to the public bureaucracy. Regulatory policymaking offers executive actors large amounts of flexibility, allowing Presidents to initiate significant policy changes depending on their administrations’ goals and preferences, rather than those of Congress. To explore these issues, we focused on two examples that illustrate the importance of policy implementation through the rulemaking process as well as how policy content can change due to personnel shifts in presidential administrations. One example is the contraceptive mandate. In implementing the ACA, the Obama Administration sought to walk the tightrope of expanding contraception coverage while not offending those with religious objections to birth control. After a series of challenges to Obama-era rules, this issue remained unresolved as the Trump Administration took over. Once in office, the new Administration abruptly changed course—relying on interim final rules—to provide much more flexibility to employers, allowing them to opt-out of providing birth control coverage to employees on religious and moral grounds. The other case study, which was equally controversial, focuses on short-term limited duration insurance plans. In this instance, the Obama Administration had sought to protect the ACA insurance marketplaces by strictly limiting the availability of plans that only offer very limited protections. Once more, the Trump Administration’s regulatory implementation—which, again, relied heavily on interim final rules—almost wholly reversed course from its predecessor and eventually found support in the appeals court. So, where does this leave us? The ACA is perhaps the most controversial and consequential piece of legislation to come out of Congress in the last decade, and accordingly, it has received significant media and scholarly attention. Its regulatory reach, however, has seen much less in the spotlight. By providing the first detailed analysis of the regulatory enterprise triggered by the ACA, our article puts numbers to the anecdotal evidence that regulations have gained dominance in U.S. policymaking. Our findings also bring renewed focus to age-old questions about how much congressional delegation is permissible under the U.S. Constitution. The ACA, and our analysis of it, also raises much thornier questions about the specificity of congressional delegation. If Congress delegates its powers so vaguely that two administrations can credibly offer diametrically opposite policy implementation activities, maybe delegation has gone a step too far. As we note in our article, “scholars would be well advised to pay close attention to all forms of rulemaking activity in their analyses of the ACA or other health care statutes.” The data we collected also suggest that policy advocates, citizens, and the media must pay greater heed to the implementation of major statutes—and not just to their passage

OIRA’s Impact on Rulemaking

Regulatory policymaking plays an outsized role in American public policy today. Although the media and many academic researchers focus closely on the U.S. Congress, one scholar estimates that agency regulations—and not congressionally passed statutes—account for over 90 percent of American laws today. This difference is not surprising given the hyper-partisanship and political polarization of today’s divided Congress. No matter which party carries the presidency or the Congress in November, the writing of agency regulations will continue, if not accelerate. One part of society already knows this well: interest groups. In addition to lobbying Congress and the White House, such entities regularly lobby agencies for policy changes that benefit their organizations during the agency rulemaking process. Yet empirical research focused on lobbying public agencies remains rare, especially during rulemaking. This lack of quantitative analysis particularly holds for the infamous, albeit obscure, gatekeeper of the agency rulemaking process, the President’s Office of Information and Regulatory Affairs (OIRA), where, as our recent study indicates, the savviest and most sophisticated of interest groups do a great deal of lobbying. In this study, we examined all regulations reviewed by OIRA from January 2005 through June 2011 to demonstrate who shows up to lobby OIRA on pending agency regulations—and equally importantly, who does not. We found that hundreds of interest groups held nearly 800 lobbying meetings with OIRA officials on 315 proposed regulations, which included Affordable Care Act (ACA) regulations, rules dealing with discrimination in air travel, and the U.S. Department of Education’s rule on gainful employment measures. Indeed, the gainful employment rule had more meetings (17) than any other rulemaking and involved more interest groups (43) than any other in our study. Yet, what stood out most in our findings was that industry groups and law and lobbying firms—which are often associated with industry groups—account for almost two-thirds of the attendance at these OIRA lobbying meetings. For some agencies, such as the U.S. Department of Veterans Affairs and the U.S. Department of Housing and Urban Development, the percentages were even higher. Why focus on lobbying at OIRA? As we have shown previously, lobbying OIRA appears to have significant effects on regulatory outcomes. Using plagiarism software, similar to what a college professor might use to check for violations across student papers, we compared the draft rules that agencies submit to OIRA for review with the final rules issued after OIRA’s suggested changes. We found that these two documents often differ substantively. Our findings suggest that agencies rewrite the rules—and therefore reshape the law—based on OIRA’s suggestions. Specifically, we found that an increase in lobbying activity appears to be directly associated with more textual changes between draft and issued rules. We also found that when only business groups lobby—unopposed by public interest groups—rules are likely to change significantly. Notably, we did not find similar strong effects when public interest groups lobby unopposed, which only occurred in a handful of cases. And as we have argued, our research design provided a somewhat greater degree of certainty that these changes can be attributed to the lobbying, because at this late point in the regulatory process, the President and OIRA have already had plenty of opportunities to influence the content of an agency’s draft rule. In subsequent work, we have sought to answer whether OIRA was more likely to request changes to regulations written by liberal, neutral, or conservative agencies. To determine agency ideology, we relied on two standard metrics based on expert opinions and a survey of federal executives. Looking at rulemakings written under both President George W. Bush and President Barack Obama, we found that OIRA frequently recommends substantive changes to the content of rules developed by federal agencies, but these changes are not used to correct ideologically extreme agencies affiliated with either political party more than agencies with less extreme ideology metrics. We also found no support for the commonly promoted hypothesis that Presidents are more likely to change proposals when the submitting agency’s political ideology differs from the President’s. Instead, the findings from our more recent work suggest that, irrespective of the party of the President, OIRA is significantly more likely to interfere with rulemakings from more liberal agencies and departments, such as the U.S. Environmental Protection Agency, as compared to moderate or more conservative ones, such as the U.S. Department of Transportation or the U.S. Department of Defense. Moreover, the extent of changes requested by OIRA for left-of-center agencies also tend to be larger than those for other types of agencies. This finding holds across both Presidents in our study—one a Republican and the other a Democrat. Rulemaking matters to U.S. policymaking today, and OIRA plays a key role during this process. Greater scholarly and media attention should focus on OIRA’s impact on the rulemaking process. As our recent work on rulemaking under the ACA indicates, statutes passed by Congress devolve policymaking authority to the government bureaucracy. The ACA is hardly alone in its vast delegation of rulemaking powers to administrative agencies. Yet the importance of rulemaking, particularly the role that OIRA plays as gatekeeper, is too often ignored, is vastly understudied empirically, and receives little media attention. Interest groups are not making the same mistake. As we have shown across a number of quantitative studies, the groups that show up at OIRA’s door, seeking to state their case, appear to shape regulatory decisions—a fact that holds crucial implications for rulemaking and the content of public policy

OIRA’s Impact on Rulemaking

Regulatory policymaking plays an outsized role in American public policy today. Although the media and many academic researchers focus closely on the U.S. Congress, one scholar estimates that agency regulations—and not congressionally passed statutes—account for over 90 percent of American laws today. This difference is not surprising given the hyper-partisanship and political polarization of today’s divided Congress. No matter which party carries the presidency or the Congress in November, the writing of agency regulations will continue, if not accelerate. One part of society already knows this well: interest groups. In addition to lobbying Congress and the White House, such entities regularly lobby agencies for policy changes that benefit their organizations during the agency rulemaking process. Yet empirical research focused on lobbying public agencies remains rare, especially during rulemaking. This lack of quantitative analysis particularly holds for the infamous, albeit obscure, gatekeeper of the agency rulemaking process, the President’s Office of Information and Regulatory Affairs (OIRA), where, as our recent study indicates, the savviest and most sophisticated of interest groups do a great deal of lobbying. In this study, we examined all regulations reviewed by OIRA from January 2005 through June 2011 to demonstrate who shows up to lobby OIRA on pending agency regulations—and equally importantly, who does not. We found that hundreds of interest groups held nearly 800 lobbying meetings with OIRA officials on 315 proposed regulations, which included Affordable Care Act (ACA) regulations, rules dealing with discrimination in air travel, and the U.S. Department of Education’s rule on gainful employment measures. Indeed, the gainful employment rule had more meetings (17) than any other rulemaking and involved more interest groups (43) than any other in our study. Yet, what stood out most in our findings was that industry groups and law and lobbying firms—which are often associated with industry groups—account for almost two-thirds of the attendance at these OIRA lobbying meetings. For some agencies, such as the U.S. Department of Veterans Affairs and the U.S. Department of Housing and Urban Development, the percentages were even higher. Why focus on lobbying at OIRA? As we have shown previously, lobbying OIRA appears to have significant effects on regulatory outcomes. Using plagiarism software, similar to what a college professor might use to check for violations across student papers, we compared the draft rules that agencies submit to OIRA for review with the final rules issued after OIRA’s suggested changes. We found that these two documents often differ substantively. Our findings suggest that agencies rewrite the rules—and therefore reshape the law—based on OIRA’s suggestions. Specifically, we found that an increase in lobbying activity appears to be directly associated with more textual changes between draft and issued rules. We also found that when only business groups lobby—unopposed by public interest groups—rules are likely to change significantly. Notably, we did not find similar strong effects when public interest groups lobby unopposed, which only occurred in a handful of cases. And as we have argued, our research design provided a somewhat greater degree of certainty that these changes can be attributed to the lobbying, because at this late point in the regulatory process, the President and OIRA have already had plenty of opportunities to influence the content of an agency’s draft rule. In subsequent work, we have sought to answer whether OIRA was more likely to request changes to regulations written by liberal, neutral, or conservative agencies. To determine agency ideology, we relied on two standard metrics based on expert opinions and a survey of federal executives. Looking at rulemakings written under both President George W. Bush and President Barack Obama, we found that OIRA frequently recommends substantive changes to the content of rules developed by federal agencies, but these changes are not used to correct ideologically extreme agencies affiliated with either political party more than agencies with less extreme ideology metrics. We also found no support for the commonly promoted hypothesis that Presidents are more likely to change proposals when the submitting agency’s political ideology differs from the President’s. Instead, the findings from our more recent work suggest that, irrespective of the party of the President, OIRA is significantly more likely to interfere with rulemakings from more liberal agencies and departments, such as the U.S. Environmental Protection Agency, as compared to moderate or more conservative ones, such as the U.S. Department of Transportation or the U.S. Department of Defense. Moreover, the extent of changes requested by OIRA for left-of-center agencies also tend to be larger than those for other types of agencies. This finding holds across both Presidents in our study—one a Republican and the other a Democrat. Rulemaking matters to U.S. policymaking today, and OIRA plays a key role during this process. Greater scholarly and media attention should focus on OIRA’s impact on the rulemaking process. As our recent work on rulemaking under the ACA indicates, statutes passed by Congress devolve policymaking authority to the government bureaucracy. The ACA is hardly alone in its vast delegation of rulemaking powers to administrative agencies. Yet the importance of rulemaking, particularly the role that OIRA plays as gatekeeper, is too often ignored, is vastly understudied empirically, and receives little media attention. Interest groups are not making the same mistake. As we have shown across a number of quantitative studies, the groups that show up at OIRA’s door, seeking to state their case, appear to shape regulatory decisions—a fact that holds crucial implications for rulemaking and the content of public policy

How Long is Too Long for Legislative Delegation?

Professors Jonathan Adler and Christopher Walker’s new research article, “Delegation and Time,” could not be better timed. Scholars from a variety of fields have long highlighted the inherent difficulties attached to reconciling the vast policymaking power held by the largely unelected bureaucracy in the United States. That reconciliation is made possible, in part, by the fact that the policy work of agency officials is circumscribed—or is supposed to be circumscribed—by the actions of the elected Congress and the elected president at the federal level. Indeed, this observation is now ubiquitously accepted in the law, political science, and public administration literatures, as scholars often point to the various tools, such as political appointments, presidential oversight, budgeting powers, and analysis requirements, that elected policymakers use to check their un-elected counterparts. Elections equal accountability, so the thinking goes. To this, Adler and Walker add an unquestionably important concentration on timing. Specifically, they focus on the period of time between the passage of a statute and its regulatory implementation by federal agencies. The authors argue that existing scholarship too often overlooks how the inherent lag between passage and implementation of legislation can affect bureaucratic accountability to political principals. Indeed, this dynamic relationship holds the promise of exacerbating longstanding concerns held by some Americans that the existing tools of oversight employed by elected officials to rein in the bureaucracy might not fully be up to the task. In their timely piece, Adler and Walker argue that the delegation of policymaking authority from the Congress and the president to government agencies creates a critical temporal problem. Adler and Walker begin by noting that there must be a statutory basis for agency policymaking. This means that agencies must point to a specific delegation of policymaking power to issue legally binding government rules and regulations. Adler and Walker then assert that the link between legislation and regulation ought to be tight, not only in terms of the policy substance but also temporally. That is, if too much time passes, they assert, the link begins to fray and eventually becomes decoupled. Anecdotally, they then conclude that agencies often take a long time to issue rules with their delegated policymaking authority, before they settle on the conclusion that Congress ought to revisit its nonchalant approach to delegation and assert its checking power on agency behavior. In the last part of their article, Adler and Walker then put forward several reforms to address what they see as a “democratic deficit” in the policymaking process. As we suggest above, there is much to laud about their insightful piece of scholarship, which focuses on an issue that has dramatically gained in importance over the recent years. Yet, there are also numerous ways in which it—in conversation with other research—may help us to better fill out the broader picture of delegation and time. We will suggest two here. First, the Adler and Walker article largely takes as a given that there is a temporal problem associated with delegation. Yet, this is an empirical and normative question in need of investigation. Fortunately, one of our recent studies provides some of the first large-scale evidence on the link between legislation and regulation. Complementing Adler and Walker’s work, we ask: When does legislation trigger regulation? To answer it, we use data drawn from almost 350 public laws spanning four decades, which are then matched up with thousands of regulations. Specifically, we focus our attention on laws providing the U.S. Department of the Interior with new rulemaking authority, as well as all corresponding draft rules issued by the Interior Department over roughly the same time period. Our approach allows us to capture how long it takes for a statute to trigger a draft rule—which in our dataset spans from just a few months to many decades. To better analyze our data, we also employ flexible parametric models to understand the factors that speed up and slow down agency responsiveness to delegations. We find evidence that the breadth of the statutory delegation of authority is a key factor in driving rule timing. For instance, the median time between a statute and rule is just over a year for statutes with a narrow delegation as compared to many years for those with a broader delegation. Put differently, when Congress expressly directs an agency to issue a rule, the agency does so much more quickly than in those cases when a broad delegation is provided. We also find evidence that Congress can further increase the probability of agency responsiveness by holding legislative hearings before a statute is passed or by including statutory deadlines. In the end, the normative “take-aways” from our article depend on one’s predilections. For instance, how long is too long? Where is the line between responsive and non-responsive? Answers to these questions may very well depend on one’s political and ideological preferences, and how those preferences match up with who holds power in Washington, D.C. Yet, regardless of what one concludes from the data, understanding the empirical regularities at the Interior Department and at other government agencies is necessary to push knowledge forward. Second, it also strikes us that the identification of a “temporal problem of delegation” is not quite as new as Adler and Walker at times suggest. Writing in the early 1990s, Ken Shepsle specifically pointed out that a time consistency problem is built into the writing of government regulations since there is inevitably some lag between the passage of a statute and the writing of a rule. Indeed, one of the key insights of the pathbreaking article by Matt McCubbins, Roger Noll, and Barry Weingast three decades ago was that delay is built into the regulatory process on purpose and partially at the behest of legislators. Other work, such as Miranda Yaver’s scholarship on the U.S. Environmental Protection Agency, has framed these issues as coalitional drift. Moreover, a separate and growing line of political science scholarship focuses on the use of regulatory deadlines to speed up agency regulatory decision-making. Although this literature generally does not spell out the temporal problem in the level of detail provided by Adler and Walker, its existence, along with its empirical findings, suggest that Congress has a key tool—statutory deadlines—at its fingertips to address the issue of temporality and Congress frequently employs that tool. Adler and Walker rightfully suggest that policymaking via rulemaking outweighs policymaking via statute today. With growing polarization between the parties, the present-day Congress will likely see its policymaking role further limited. Yet at the same time, dozens of agencies and departments will continue to churn out thousands of pages of regulations and guidance on a regular basis. Given this, Adler and Walker have provided a great service to the field in writing their new article, which neatly explicates the temporal problem of delegation and its tie to regulatory production, while also raising important normative issues. In doing so, they add new argumentation and insights into a crowded area of thought on policymaking authority and political accountability

How Long is Too Long for Legislative Delegation?

Professors Jonathan Adler and Christopher Walker’s new research article, “Delegation and Time,” could not be better timed. Scholars from a variety of fields have long highlighted the inherent difficulties attached to reconciling the vast policymaking power held by the largely unelected bureaucracy in the United States. That reconciliation is made possible, in part, by the fact that the policy work of agency officials is circumscribed—or is supposed to be circumscribed—by the actions of the elected Congress and the elected president at the federal level. Indeed, this observation is now ubiquitously accepted in the law, political science, and public administration literatures, as scholars often point to the various tools, such as political appointments, presidential oversight, budgeting powers, and analysis requirements, that elected policymakers use to check their un-elected counterparts. Elections equal accountability, so the thinking goes. To this, Adler and Walker add an unquestionably important concentration on timing. Specifically, they focus on the period of time between the passage of a statute and its regulatory implementation by federal agencies. The authors argue that existing scholarship too often overlooks how the inherent lag between passage and implementation of legislation can affect bureaucratic accountability to political principals. Indeed, this dynamic relationship holds the promise of exacerbating longstanding concerns held by some Americans that the existing tools of oversight employed by elected officials to rein in the bureaucracy might not fully be up to the task. In their timely piece, Adler and Walker argue that the delegation of policymaking authority from the Congress and the president to government agencies creates a critical temporal problem. Adler and Walker begin by noting that there must be a statutory basis for agency policymaking. This means that agencies must point to a specific delegation of policymaking power to issue legally binding government rules and regulations. Adler and Walker then assert that the link between legislation and regulation ought to be tight, not only in terms of the policy substance but also temporally. That is, if too much time passes, they assert, the link begins to fray and eventually becomes decoupled. Anecdotally, they then conclude that agencies often take a long time to issue rules with their delegated policymaking authority, before they settle on the conclusion that Congress ought to revisit its nonchalant approach to delegation and assert its checking power on agency behavior. In the last part of their article, Adler and Walker then put forward several reforms to address what they see as a “democratic deficit” in the policymaking process. As we suggest above, there is much to laud about their insightful piece of scholarship, which focuses on an issue that has dramatically gained in importance over the recent years. Yet, there are also numerous ways in which it—in conversation with other research—may help us to better fill out the broader picture of delegation and time. We will suggest two here. First, the Adler and Walker article largely takes as a given that there is a temporal problem associated with delegation. Yet, this is an empirical and normative question in need of investigation. Fortunately, one of our recent studies provides some of the first large-scale evidence on the link between legislation and regulation. Complementing Adler and Walker’s work, we ask: When does legislation trigger regulation? To answer it, we use data drawn from almost 350 public laws spanning four decades, which are then matched up with thousands of regulations. Specifically, we focus our attention on laws providing the U.S. Department of the Interior with new rulemaking authority, as well as all corresponding draft rules issued by the Interior Department over roughly the same time period. Our approach allows us to capture how long it takes for a statute to trigger a draft rule—which in our dataset spans from just a few months to many decades. To better analyze our data, we also employ flexible parametric models to understand the factors that speed up and slow down agency responsiveness to delegations. We find evidence that the breadth of the statutory delegation of authority is a key factor in driving rule timing. For instance, the median time between a statute and rule is just over a year for statutes with a narrow delegation as compared to many years for those with a broader delegation. Put differently, when Congress expressly directs an agency to issue a rule, the agency does so much more quickly than in those cases when a broad delegation is provided. We also find evidence that Congress can further increase the probability of agency responsiveness by holding legislative hearings before a statute is passed or by including statutory deadlines. In the end, the normative “take-aways” from our article depend on one’s predilections. For instance, how long is too long? Where is the line between responsive and non-responsive? Answers to these questions may very well depend on one’s political and ideological preferences, and how those preferences match up with who holds power in Washington, D.C. Yet, regardless of what one concludes from the data, understanding the empirical regularities at the Interior Department and at other government agencies is necessary to push knowledge forward. Second, it also strikes us that the identification of a “temporal problem of delegation” is not quite as new as Adler and Walker at times suggest. Writing in the early 1990s, Ken Shepsle specifically pointed out that a time consistency problem is built into the writing of government regulations since there is inevitably some lag between the passage of a statute and the writing of a rule. Indeed, one of the key insights of the pathbreaking article by Matt McCubbins, Roger Noll, and Barry Weingast three decades ago was that delay is built into the regulatory process on purpose and partially at the behest of legislators. Other work, such as Miranda Yaver’s scholarship on the U.S. Environmental Protection Agency, has framed these issues as coalitional drift. Moreover, a separate and growing line of political science scholarship focuses on the use of regulatory deadlines to speed up agency regulatory decision-making. Although this literature generally does not spell out the temporal problem in the level of detail provided by Adler and Walker, its existence, along with its empirical findings, suggest that Congress has a key tool—statutory deadlines—at its fingertips to address the issue of temporality and Congress frequently employs that tool. Adler and Walker rightfully suggest that policymaking via rulemaking outweighs policymaking via statute today. With growing polarization between the parties, the present-day Congress will likely see its policymaking role further limited. Yet at the same time, dozens of agencies and departments will continue to churn out thousands of pages of regulations and guidance on a regular basis. Given this, Adler and Walker have provided a great service to the field in writing their new article, which neatly explicates the temporal problem of delegation and its tie to regulatory production, while also raising important normative issues. In doing so, they add new argumentation and insights into a crowded area of thought on policymaking authority and political accountability