Admittedly, prior to reading The President’s Budget as a Source of Agency Policy, I thought of budgetary control of an agency as a congressional tool via the appropriations process. In this article, however, Professor Eloise Pasachoff illuminates the Executive Branch’s role through Research Management Offices (RMOs), a little-studied component of the Office of Management and Budget (OMB).
Paul O’Neil, former Deputy Director of OMB, once stated that “numbers are the keys to the doors of everything,” in reference to the vital role budget has to governmental functions. Building on this idea, Pasachoff erases the dichotomy between budget and policy and analyzes how RMOs tremendously influence agencies’ budgets and use several “levers” to direct policy. For example, through the “Form-and-Content lever” RMOs direct agencies on what to include in their budget request before it ever reaches OMB for approval. The “Confidentiality Lever” prevents individuals within agencies from disclosing any information that contradicts the budget that the President ultimately presents to Congress. Even after Congress appropriates money, RMOs define how agencies can spend, transfer, or rescind funding and engage in ongoing monitoring to ensure agencies’ spending conforms to presidential priorities.
While Pasachoff acknowledges the benefits of centralized review of agencies’ budgets, she focuses on how the process lacks political accountability and transparency. The article describes undisclosed interactions between interest groups and RMOs as well as RMOs’ directives to agencies. RMOs’ civil servants and political appointees, not confirmed by the Senate, have great discretion over decisions involving agencies’ budgets. RMOs’ sheer size and reach further compound these issues of political accountability and transparency. For instance, RMOs have more than four times the number of employees as the Office of Information and Regulatory Affairs (OIRA). Independent agencies are subject to RMOs’ authority, as are agencies whose primary function is spending rather than regulating. Lastly, it is easy for policy driven-decisions to be buried within RMOs’ quasi-technical language, making the process even more opaque.
RMOs prompt the question: What is the appropriate role of federal agencies in the budgeting process? One may adhere to a presidential primacy view where agencies are merely a conduit of the President. In this case, RMOs are a crucial tool in ensuring consistency and presidential ownership of regulatory policy. If agencies represent technical expertise and should be fully accountable to the public via congressional delegation, then RMOs present legitimate separation of powers concerns. I view administrative agencies as falling somewhere in between these two extremes. Pasachoff likely would agree because, while skeptical of certain RMO functions, she recognizes the benefits of RMOs’ control of a sprawling administrative state.
The article sets forth multiple solutions to increase RMOs’ accountability and transparency. One is a new executive order to govern RMOs’ work and allow the President to explicitly claim ownership. This idea struck me as counterintuitive at first because presumably it would increase political pressure on RMOs’ theoretically apolitical staff. Pasachoff may counter that political pressure already exists and that acknowledging this occurrence would increase presidential accountability rather than obscuring policy decisions in bureaucracy. This alternative also alleviates some concerns of democratic accountability because the President is elected (and reelected).
As Pasachoff notes, executive orders already exist that dictate how OIRA reviews regulations, so there is an existing roadmap to create similar orders controlling RMOs’ procedures. The added structure would provide the public and administrative state enthusiasts predictability that is sorely lacking in RMOs’ current operations. The potential executive order could also improve transparency by elucidating the following: (1) RMOs’ interactions with executive agencies and interest groups regarding the budget and the appropriate rationale on which to base budgetary decisions; (2) RMOs’ final budgetary decisions; and (3) information on RMOs’ predecisional budget preparation. The executive order could require RMOs to publish the information online for the public to view. While at first blush appealing, these requirements present various challenges in implementation. The White House’s incentives in retaining current operations may outweigh the benefits of change. Voters and advocacy groups are largely unaware of RMOs, posing negligible political risk to the President. The benefits of shaping federal policy through the budget are great, so the White House’s calculus seems to significantly favor the status quo over any reform via executive order. Accordingly, I would not expect different results from RMOs without congressional censure or searching judicial review.
Even if the President enacted the proposed executive order, the provisions’ utility would vary greatly. The suggested disclosure of RMOs’ meetings with executive branch and private entities mirrors existing OIRA requirements that are haphazardly followed. Furthermore, there is value in interparty deliberation and RMOs’ role as a repository of information for the President that a strict disclosure requirement could disrupt. Pasachoff notes that RMOs’ procedure is subject to Freedom of Information Act (FOIA) requests, so there should be minimal negative impact on the deliberative process. However, I think there is a distinction between enacting a requirement to affirmatively disclose all interactions and complying with discrete FOIA requests. The potential requirement limiting RMOs’ budgetary decisions to select rationales that it makes public beforehand could easily be circumvented with pretextual reasons. Pasachoff also surmises that an executive order requiring disclosure of RMOs’ final, legal decisions, such as budgetary transfers or reprogramming, would greatly benefit the public. This executive order reform seems the most promising because Presidents could claim ownership of fiscally responsible decisions. While this reform dispels RMOs’ guise as a non-policymaking entity, the President’s budget is inherently a statement of policy priorities.
Congressional reforms, such as making RMO heads Senate-confirmed positions or requiring the submission of alternative policies, could prove effective at increasing transparency. However, this alternative undoubtedly would add more layers of bureaucracy at a time when the appointments process is getting more rigorous and deeply partisan. A president may be able to easily circumvent the Senate confirmation requirement intended to increase democratic accountability by merely appointing acting officers. Alternatively, civil society, while lacking the direct control that the President and Congress enjoy, has the promise in increasing transparency by educating the public and other advocacy groups.
The intersection of budget and policy should be salient to every organization and individual in the United States because ultimately the budget will directly impact them or issues that resonate with them. Yet, it is unclear whether the general public will appreciate or care enough about the granularity of this issue. Disseminating information, like Pasachoff does by publishing her pathbreaking article, unveils the cryptic yet crucial role RMOs play in directing agency policy and lays the foundation for reform.
Thomas Donadio is a third-year J.D./M.A. in Public Policy candidate at The Ohio State University Moritz College of Law and John Glenn College of Public Affairs. An earlier version of this post was submitted as a weekly rapporteur report for Professor Walker’s Administrative Law in the Modern Regulatory State Seminar and selected by Professor Walker for publication on the blog.