Midnight rules, the flurry of last-minute regulations presidents often push through in their final days in office, might not be so bad, at least according to the Obama administration's point man on the issue.
The practice has rankled scholars and government reformers since the 1980s, when an avalanche of rules issued at the end of the Carter administration came under public scrutiny. Only hours into his own administration, President Barack Obama ordered a freeze on the midnight rules issued by his predecessor.
But an outside consultant hired by his administration to review the practice says midnight rules might sound worse than they actually are.
"The unseemly appearance of Midnight Rulemaking may be worse than the reality," Jack Beermann, a professor at Boston University School of Law, wrote in a draft report submitted to the advisory committee leading the investigation earlier this month. "Proposals to prohibit outgoing administrations from promulgating rules in the Midnight Period represent a cure that is likely to be worse than the disease."
His proposal, if approved, would give the White House the same freedom to issue last-minute regulations as previous administrations. This could be valuable to Obama because he faces a difficult re-election environment and midnight rules are especially common among one-term presidents who haven't had time to complete work on all of their public policy ambitions.
The midnight rules project was first proposed in May 2010 by Paul Verkuil, an Obama appointee charged with reinventing the Administrative Conference of the United States, a 44-year-old government agency that had gone unfunded since 1995.
The goal was to investigate the long-term consequences of rules made in the final months of an administration — rules like the one written by the Reagan administration subjecting transportation workers to random drug testing or the controversial Bush administration law allowing federally funded health care institutions to turn down abortion requests on the basis of religious concerns.
The recommendations, which have not been finalized, would be nonbinding but could provide valuable political cover for an administration dogged by Republican critics for overregulating.
The ACUS, a federal advisory committee, was eliminated in 1995, one of two federal agencies dismantled under Speaker Newt Gingrich.
But in 2009 the Democratic-led Congress approved its funding and Obama appointed as its leader Verkuil, a former law school dean and longtime Washington lawyer who had contributed to Democratic Congressional candidates.
Midnight rules are much more likely when a president serves only one term and political appointees hurry to finish key projects with little notice, regulatory experts say.
In the final three months of the Carter administration, for example, the daily volume of rules — as approximated by page counts of the Federal Register — ran more than 40 percent above the average level during the same months of the nonelection years 1977, 1978 and 1979, according to Beermann's report.
Since then, last-minute rule-making has proliferated. The Clinton administration issued 143 post-election rules, while President George W. Bush issued 100, according to Susan Dudley, who served in the Bush administration's Office of Management of Budget and now directs the regulatory studies department at George Washington University.