Graham’s new book highlights the challenges of and opportunities for regulatory reform.
John D. Graham’s Regulatory Reform from Nixon to Biden is an ambitious and accessible look at how modern Presidents have put their stamp on the administrative state. Graham deftly surveys over 50 years of shifts in substantive regulatory policy as well as structural and procedural reforms. He is no stranger to the subject: Graham served as the administrator of the Office of Information and Regulatory Affairs (OIRA) during the George W. Bush Administration. Drawing from this experience and beyond, his analysis has much to offer social scientists, lawyers, and economists seeking fresh insights into why so many past efforts at regulatory reform have succeeded or fallen short in their aims.
One explanation for regulatory reform’s shortcomings is the fraught nature of the enterprise. In Graham’s view, it has long been too polarized: Republicans are perceived to tout only deregulation and Democrats the opposite. A major theme of Graham’s account, however, is that political party is not destiny. Graham astutely points to many instances of Republican administrations pursuing social regulation and Democratic administrations demanding deregulation. For example, he highlights the U.S. Environmental Protection Agency’s efforts to phase out ozone depleting chemicals during the Reagan Administration and President Bill Clinton’s efforts to liberalize financial markets.
As another illustration of this theme, Graham himself can be credited with OIRA’s pioneering use of “prompt” letters. As the name suggests, these letters encouraged—or prompted—agencies to consider new rules based on benefit-cost considerations. This practice was especially notable coming from the Republican OIRA that Graham headed, an office that might have naively been expected only to block—not prompt—rulemaking agencies. In this sense, Graham practiced what he is now preaching. His book calls for reformers to dispense with partisan labels and instead look carefully at the substance of the policies at stake and whether they would be net beneficial to the public—the very aims of the benefit-cost analysis he champions. Perhaps one way to understand Graham’s book, then, is as a broader effort to educate the public on this important insight.
Another central lesson of the book is the importance of matching reformist ambitions with the resources necessary to carry them out. Some of the most existential challenges to OIRA early in its history, for example, arose mostly because it lacked capacity. According to Graham, with only 90 staff members in the 1980s, OIRA simply could not engage in regulatory review as well as evaluate information collection requests as required by Congress. As a result, OIRA had to “triage” without any clear standards for how to do so. The blowback from Congress prompted several reforms, such as increased disclosure and Senate confirmation of OIRA’s administrator. Even though these reforms may have been ultimately salutary, they highlighted the perils of reforms without resources.
On this theme, Graham effectively highlights the stakes of the U.S. Supreme Court’s recent efforts to shift regulatory policymaking from the President to Congress. The Court’s “major questions doctrine,” for example, calls for Congress to make the most important regulatory decisions absent clear delegations to the executive branch. Threats to revive the nondelegation doctrine similarly call for legislators to set regulatory policies, leaving only details and fact-finding for agencies. Graham points out, however, that for Congress to take on this role, it must have the appropriate institutions and capacity.
To this end, Graham proposes a Congressional Office of Regulatory Analysis (CORA), which would analyze new regulatory legislation much as the Congressional Budget Office analyzes the budgetary impacts of bills. CORA would analyze the potential benefits, costs, and distributive impacts of a bill before congressional members cast their votes. Presumably this task would become more tractable as Congress legislates with increasingly detailed and specific mandates. Graham points out, however, that CORA must be adequately staffed for such a task. Otherwise, the risk is that regulatory policy choices are made without the analysis necessary for sound decision-making.
Graham, however, is not holding his breath. He notes how, as the “most troubled branch,” Congress is ill-positioned to make this a reality. Its polarized dysfunction further makes it unlikely that Congress will regulate, if at all, with the requisite creativity beyond simplistic notions of command-and-control. One is left to wonder, then, whether the Supreme Court has fully considered the consequences of its recent doctrinal reforms. It would be a great irony for a Court that has arguably embraced benefit-cost analysis as synonymous with rational regulatory policymaking to entrust such a task to an institution ill-equipped to carry it out.
All in all, Regulatory Reform from Nixon to Biden is a timely and important work. It effectively cuts through the partisan chatter of the Beltway to offer clear-eyed lessons about how we got to where we are and what still needs to be done to confront the emerging regulatory challenges of the day.
This essay is part of a series, titled “Presidential Legacies of Regulatory Reform.”
