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.
Still, Beermann concluded that most of the rules implemented in the final days of an administration are routine and were under consideration long before the November election. Often, he wrote, they are the result of an administrative cram to get rules moving that would inevitably fall by the wayside during the next administration.
A complete freeze on rule-making in the final 90 days of an administration is simply not feasible, most experts agree.
His most hard-hitting recommendation — that "no major or potentially controversial rulemakings should be initiated after or close to the date of the election" — still gives administration officials the right to determine which rules to advance.
Dudley, a staunch critic of midnight rules and one of about 50 public members of ACUS, said the recommendations might be insufficient.
"It is hard for the outgoing administration to police itself," she said. "My own experience was that all agencies thought their rules were presidential priorities worthy of an exemption. Every agency thinks that it is necessary to finish their regulations."
The agency prides itself on its bipartisan, policy-oriented focus, and Beermann insisted that the timing of the investigation was not politically motivated.
"It's been in the public consciousness for a long time," he said. But he acknowledged that even a relatively small regulatory body cannot escape the reach of presidential politics.
"If there is a transition this year, it will get to be a big political issue," Beermann said.
An agency subcommittee is set to meet to discuss his report Thursday. If the recommendations are approved, they will then be voted on by all 101 members of the conference at its biennial meeting in June.
While the agency has no authority to enforce its recommendations, the membership includes representatives from each of the government's 50 agencies and has a history of deep government influence.
ACUS estimates that two-thirds of the recommendations it has issued have been implemented, including the negotiated rule-making process in which agency officials and interest groups negotiate the language of a proposed rule before it is published in the Federal Register.
Since the agency was reinstated, it has completed nine projects, several of which are currently being implemented at agencies.
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