Senior government officials are ignoring a White House directive that requires disclosure of key documents in the federal rulemaking process, thus hiding the potential influence of special interests on the writing of government regulations, according to a letter the Project On Government Oversight (POGO) sent yesterday to President Obama.
POGO's concern relates to -- and bear with our wonkiness for a moment -- how the Office of Information and Regulatory Affairs (OIRA) -- the White House office within the Office of Management and Budget (OMB) responsible for reviewing federal regulations that protect public health and safety -- and rulemaking agencies are interpreting Executive Order (EO) 12866.
This EO, issued by President Bill Clinton in 1993, requires OIRA to publicly disclose all documents exchanged between OIRA and the rulemaking agencies during the crafting of new regulations. The EO also requires the rulemaking agency to identify to the public any changes made at the suggestion or recommendation of OIRA. President Obama reaffirmed the EO last year in his own executive order.
POGO readers should care because failure to heed the requirements in this EO could substantially harm the public interest. POGO's letter cites one recent example in which OIRA apparently weakened a final rule on disclosure of conflicts of interest held by researchers who receive funding from the National Institutes of Health (NIH).
Part of the problem, POGO argues, is that OIRA and agencies have flouted these transparency requirements since the 1990s:
The leaders of OMB and OIRA evidently decided long ago that "all" [the documents] means "some" or "none..." OIRA's noncompliance with the transparency requirements of E.O. 12866 was criticized soon after the Executive Order was issued. However, OIRA Administrators have successfully defended their position -- which is to say that they've had their way... Although the language of E.O. 12866 is clear, all three OIRA Administrators have failed to comply with its terms.
Just because something has always been done in a certain way, doesn't make it right. It's extremely important for the public to understand what's happening during the rulemaking process.
POGO isn't the first to point out that OIRA's disregard of the EO is hurting the public. The Government Accountability Office (GAO) issued a report in 2003 that found OIRA was failing to uphold the transparency requirements. In a follow-up report in April 2009, the GAO noted that OIRA had failed to implement seven of the eight recommendations that GAO made in its 2003 report.
Unfortunately, Congress has failed to take action. According to the letter, "Because OIRA has followed its narrowed definition of the review process for almost twenty years with occasional complaints from Congress but without serious congressional challenge, OIRA has acquired 'squatters rights' over its prerogative to disclose documents or not."
POGO Staff Scientist Dr. Ned Feder says it's time for the OMB and OIRA to stop operating behind closed doors.
"The officials violating the Executive Order are saying in essence: 'We know what's best for the American public, and we don't have to explain it,'" said Feder. "Special interests may benefit from this secrecy, but the public suffers."
Dana Liebelson is POGO's Beth Daley Communications Fellow. Bryan Rahija edits POGO's blog.