*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here.
This symposium is focused largely on President Biden’s EO 14094 on “Modernizing Regulatory Review” and one of its subjects: OIRA’s contemporaneous redraft of Circular A-4, open for comments till June 6. That’s appropriate. But a concurrent docket is also open for a separate OIRA draft, also directed by the EO: new guidance on the meetings that OIRA holds with members of the public, upon request, regarding proposed and final rules that it is reviewing under EO 12866. These meetings have been a recurrent source of controversy over the years, and so it’s worthwhile to address that guidance as well in this symposium.
Much of what OIRA does is governed by what Lisa Heinzerling has called its “common law,” and that includes these meetings. EO 12866 does not actually authorize them; rather, Section 6(b)(4) of that EO merely prescribes procedures intended to assure their transparency. The draft guidance is the first such OIRA document addressing the topic.
Pro-regulatory groups like the Center for Progressive Reform have long maligned EO 12866 meetings as a powerful lever for regulated interests to bend evolving regulations to their benefit. Earlier this year, Lia Cattaneo published a thorough and thoughtful article in Campbell Law Review disputing this contention. She argues that available evidence does not allow one to isolate the effect of 12866 meetings per se in causing anti-regulatory changes, and that OIRA is more transparent about its meetings than most agencies are about theirs. Ultimately, whether you think these meetings are good or bad is tightly linked to whether you think OIRA review of rules is good or bad. My own conclusion, having participated in dozens of these meetings over three decades on behalf of regulated entities, is that most of the time they have no apparent effect. In a few cases, they do produce positive results, especially (i) on narrow technical issues, (ii) when a rulemaking is really pushing the envelope of the agency’s legal authority, or (iii) when SBA or other agencies also participate. Regardless, the persistence of EO 12866 meetings is clear confirmation that, as current and former OIRAnians regularly report, OIRA staff find them to be valuable sources of information as they conduct 12866 reviews. This is particularly true regarding legal issues, former staff have told me, because on such issues OIRA’s lawyers are greatly outnumbered by their agency counterparts.
The draft guidance has two main foci, both driven by EO 14094. One is to increase the timeliness and completeness of disclosure regarding 12866 meetings and the documents provided to OIRA by non-governmental meeting participants. OIRA has been steadily increasing the transparency of the meeting process, and OIRA’s proposed enhancements are incremental and generally salutary, except for the idea of requiring registered lobbyists to identify as such, which only furthers the cartoonish “lobbyists are bad” policy that, for example, keeps lobbyists off ACUS.
The second major focus of the draft guidance is to promote participation in EO 12866 meetings by groups “who have not historically requested such meetings.” This direction raises some more interesting issues.
The draft guidance reiterates that OIRA has always had an “open door” policy with respect to meetings, that “[a]ny member of the public can request an E.O. 12866 meeting,” and that “OIRA endeavors to grant all E.O. 12866 meeting requests.” By the same token, OIRA also notes that “staff do not affirmatively reach out to members of the public to schedule E.O. 12866 meetings or solicit specific views.” While public interest groups increased their share of meetings during the Trump Administration, it is beyond dispute (and no surprise) that representatives of regulated entities have always been the leading requesters of meetings. It also seems likely that many categories of regulatory beneficiaries are not represented before OIRA by any organized group — for example, what NGO spoke on behalf of the class of people, pre-Great Recession, who were sold toxic balloon mortgages that they were simply unqualified for? In the regulatory marketplace of ideas, there are surely market failures where vulnerable constituencies are under- or un-represented. OIRA’s small staff and limited budget will not allow for ambitious outreach, but it would be interesting to see who OIRA succeeds in recruiting and how useful to OIRA those meetings turn out to be.
The draft guidance states that, “[f]or the majority of regulatory actions, OIRA is able to accommodate all E.O. 12866 meeting requests and will continue to do so.” On the other hand, however, the draft adds that, “[f]or the limited number of regulatory actions that strain OIRA resources and ability to accommodate all meeting requests, OIRA may seek to prioritize the scheduling of requests that come from those that have not historically requested meetings.” This seems highly problematic. Having created a process by which any member of the public can seek a meeting, OIRA is legally required to treat meeting requestors equally, and cannot prioritize some groups at the expense of others based on their identity. The applicability of the Due Process Clause of the Fifth Amendment (which implicitly incorporates the same equal protection guarantee as the Fourteenth Amendment) to communications with agencies during informal rulemaking is fairly uncertain. But the ability to get one of a limited number of meetings with OIRA regarding a particular rule begins to sound like one of the “quasi-adjudicatory” processes that courts have indicated are subject to due process requirements (i.e. those that involve “resolution of conflicting private claims to a valuable privilege” or a win-lose situation involving “competitors”). “Regulated entity” is obviously not a suspect classification, but “people like you have historically requested meetings” hardly seems like a rational basis for discriminating against regulated interests. Moreover, the regulatory review process is a subset of the informal rulemaking process created by Section 553(c) of the Administrative Procedure Act, which provides public participation rights to “interested persons,” without any indication that agencies can favor some interested persons over others. Elsewhere, the Guidance declares that OIRA’s goals include “treating all members of the public — no matter their resources or viewpoints — consistently and fairly.” OIRA would be wise to stick with that policy, and schedule meetings as requests are received, without regard to what group a requester represents.
The utility of 12866 meetings to OIRA staff is further evidenced by its willingness to schedule them notwithstanding the significant demands that these meetings can make on the staff’s time. The draft guidance says OIRA will prioritize meetings for requesters who submit joint requests. This is an eminently rational basis for discriminating among meeting requesters. The draft guidance does add that, “[s]hould the volume of meeting requests increase substantially beyond what is feasible to accommodate under current resource constraints, OIRA may have to consider the consolidation of E.O. 12866 meetings even in the absence of specific requests.” A key way to avert this outcome would be to further incentivize joint meeting requests. Former OIRA Administrator Sally Katzen, author of EO 12866, regularly emphasizes in public remarks (see, e.g., here at 31:00) that when she ran OIRA, she participated actively in every EO 12866 meeting. I participated in one of those meetings and it was much more productive than current practice, in which the desk officers conduct seriatim 30-minute meetings, the OIRA Administrator rarely participates, and staff rarely ask questions. OIRA should announce an interim experiment: if a specified number of parties submit a joint meeting request, the Administrator himself will participate in the meeting, and it will be scheduled for an hour. This would almost certainly result in many fewer meetings, but ones that are more effective for all participants.
Jamie Conrad is the Principal of Conrad Law & Policy Counsel in Washington, D.C., and a former Chair of the ABA’s Section of Administrative Law & Regulatory Practice.