An 'Unelected Bureaucrat' Talks Regulatory Reform

Google the phrase “unelected bureaucrats” and you’ll find thousands of references, many of them from House Republicans (leaders as well as back-benchers) railing against overstepping federal regulators.

“This bipartisan bill is about reviving the separation of powers to ensure our laws are written by the representatives we actually vote for – not unelected and unaccountable bureaucrats who are on their way out the door,” said Rep. Darrell Issa, R-Calif., during November debate over a Republican bill banning “midnight rules.”

House Speaker Rep. Paul Ryan, R-Wis., just before Election Day told CNN that “the bureaucracy is filled with unelected insiders who decide what is best for us on their whim, not our consent. It is as arrogant, condescending and paternalistic as it gets.”

At least one such “unelected bureaucrat” who is now retired told Government Executive he finds that term offensive and that the current push by the White House and House Republicans to roll back regulations from the Obama era and before may run into problems unless administration officials and lawmakers trust career regulators.

“The vast majority of them are there to help elected officials do a good job, in both Republican and Democratic administrations,” said attorney Neil Eisner, who from 1978-2013 was assistant general counsel for regulation and enforcement at the Transportation Department. 

The lawmakers and political appointees at agencies “who didn’t do a good job [on regulatory policy] tended not to work well with the career staff, came in distrusting them and thinking how to work around them,” said Eisner, currently a consultant and adjunct professor at American University’s Washington College of Law.

He recalled the time when the Reagan administration came in to its first Cabinet meeting with a plan to cancel a National Traffic and Highway Safety Administration rule requiring cars to be built with airbags. Transportation Secretary Drew Lewis “was a good secretary and former businessman who wanted to work with us,” Eisner recalled. “He treated us with respect, and we were willing to work with them” knowing that the Reagan people “had been elected and had a right to do that.”

The agency staff explained the difficulties with simply rescinding the rule, “that it had to go through a notice and comment process.” Then a challenge to the Reagan approach on mandatory airbags was struck down by the Supreme Court and Elizabeth Dole took over Transportation and simply said, “We want to know what the options are, and how can we make the decision quickly,” Eisner said.

The professionals then spent nearly a year, with active senior official oversight, gathering data, responding to the high court’s criticism and writing a detailed action paper, he said. “There was some debate within the administration” as Reagan had campaigned against mandatory airbags. But the political people “trusted us,” Eisner remembered, and the same people who had worked on the original Carter administration rule worked on the rule to rescind the airbag requirement. What emerged was so well received by Congress, he added, in 1991 they enacted the requirement for airbags and seatbelts as a statute.

“Not all career staff will be cooperative,” he acknowledged. “You will find some offices try to control things to make it difficult to make changes. Some are successful, some unsuccessful, but they can’t be trusted or relied upon.”

On the White House website Trump has trumpeted a half-dozen executive orders he has signed to “cut red tape for American businesses” and for “getting government out of the way.” Last Tuesday the House Oversight and Government Reform Committee approved three more deregulation bills to add to the six the full House already passed.

Perhaps most far-reaching is Trump’s order demanding that two current agency rules be eliminated for every new one enacted, a practice that has found some success in British commonwealth countries.

Though the two-for-one rule Trump seeks may have worked in the United Kingdom, Eisner said, “Today’s career people don’t know what they’re supposed to do. They’re willing to work, but the executive guidance, does it just apply to economically significant rules? What is a rule?” he asked. “Some simply amend existing rules. What are we rescinding? We need a full analysis.”

Agencies have been reviewing existing rules for a long time, Eisner added, noting that every time there is a major accident in, say, a hazardous materials pipeline, “the next day a senior official will say, why did this accident happen and was it a problem with existing rules?” More change could be made if the agencies had more resources, he added.

Asked whether some regulators have controlling personalities, Eisner said, “I don’t disagree that there are some, but it’s a small number who like having power over the regulatory process. They set standards and think they know better than others what is necessary, and don’t feel the need for notice and comment.” 

Eisner recalls having “brown bag lunches” where regulators from multiple agencies would meet and discuss how to solve problems and encourage more public participation in rulemaking. “Agencies on their own have taken steps, such as creating an electronic docket and other tools,” he noted. “That’s the so-called unelected bureaucrats trying to get the public more involved.”

The recent slew of rules to defang rules may overlap or even contradict each other in adding layers to the 1946 Administrative Procedure Act.  The 70-year act “is an ideal instrument if used properly and will result in good quality rule-making,” Eisner said, citing its requirements for advance notice for rulemakings, allowing for formal hearings with witnesses who get cross-examined. Now Congress “is adding all sorts of layers and steps,” he said. “I’m a believer in federal regulations and think they can fix problems in general—you can’t rely on the marketplace all the time.”

But the act is also advantageous for requiring “high-quality economic analysis to make a decision on the best way to go. When you add those extra steps, you make it hard to get through the process.”

Lawmakers too often, Eisner added, “like to issue a requirement for the environment or a safety area to fix a problem and then say they passed a law, but then they make it impossible to get the rule out by adding so many steps.” Agencies, he said, “with what they have now, can do very well-done economic analysis.”

It’s unclear whether the recent House-passed regulatory reform bills will make it through the Senate.

“I am pleased that the House moved quickly on legislation that would improve the regulatory process and at the same time relieve the burden placed on individuals and businesses,” Sen. James Lankford, R-Okla., told Government Executive. “As you know, the Senate does not move as quickly as the House on many legislative matters.  It is my hope that in the near future we will take up bipartisan legislation to address ways to ease the regulatory burden through process changes.”

On Thursday, nine Democratic senators led by Tom Carper of Delaware wrote to then-acting Office of Management and Budget Director Mark Sandy warning that Trump’s two-for-one requirement “is ignoring the benefits for public health, safety and otherwise, that regulations put forward by agencies can bring to society as a whole.” They also questioned how agencies could add this task to their workload in the midst Trump’s hiring freeze.

Then on Friday, Howard Shelanski, who until last month was administrator of OMB’s Office of Information and Regulatory Affairs under President Obama, published a cautionary Washington Post op-ed. “Much of the case for eliminating regulations from the past eight years is based on broad claims that those rules are too costly for society,” he said. “Yet sweeping demands for cutting these regulations often ignore that agencies had to take such costs into account before they issued most of the significant rules targeted for repeal.”