Time is running out for President Obama to make one of his most influential appointments: a regulatory chief who will serve as the gatekeeper for an avalanche of new rules from federal agencies.
With Congress mired in partisanship, Obama is expected to lean heavily on the use of executive power to enact his agenda. At the same time, scores of new rules are now under consideration at the Office of Information and Regulatory Affairs (OIRA), the White House’s clearinghouse for federal mandates. Hundreds more are in the pipeline.
“It’s the most powerful office you’ve never heard of,” said University of Maryland law professor Rena Steinzor, who serves as president of the pro-regulation Center for Progressive Reform.
The administrator post at OIRA has been vacant since last August, when Cass Sunstein departed after three years in the job. Boris Bershteyn, a young lawyer who had served as general counsel at the Office of Management and Budget (OMB), took over as acting administrator.
Bershteyn has kept a low profile while OIRA churns out rules on issues ranging from healthcare and financial reform to worker protections and food safety. But, at least according to federal statute, his tenure in the job is just about up. Under the Federal Vacancies Reform Act of 1998, an “acting” officer can only hold a position requiring Senate confirmation for 210 days unless a confirmation process is under way.
While not a Cabinet-level post, the OIRA administrator must receive the upper chamber’s blessing. That would put Bershteyn’s last day sometime at the beginning of next week, depending on what day was considered his first on the job.
However, observers say the deadline alone won’t force Obama’s hand. Then-acting OMB director Jeff Zients reached his 210th day in September, but he has continued to lead the budget office as deputy director in the months since.
The same strategy could be employed at the OIRA. But there are other pressures on the administration, both internal and external, to choose a new nominee.
Many of the Obama administration’s second-term regulatory priorities — including new air quality standards, emission controls for power plants and other rules meant to counter climate change — will take many months or even years to be finalized. Enacting those regulations will only get more difficult as the next presidential campaign draws nearer, so it is in the administration’s interest to move quickly.
Obama’s nomination this week of Sylvia Mathews Burwell to the OMB directorship helps to set the stage for an OIRA pick. If confirmed, Burwell would oversee the OIRA, which is housed at the budget office.
Observers considered it highly unlikely that the administration would move to fill the regulatory position before tapping someone to direct the budget office. Now that Burwell has been nominated, she could consult on choosing an OIRA administrator, said Rutgers public policy professor Stuart Shapiro, a former staffer at the agency.
The White House also faces pressure to act from outside groups that are looking for clues about the administration’s regulatory plans.
“This is one that the interest groups pay very close attention to,” Shapiro said.
Though the position may not have the cachet of a Cabinet secretary post, Shapiro said the job is seen as having increased clout, especially with the administration’s focus on executive action.
The administration has kept any plans close to the vest, though Bershteyn is not considered to be in the running.
Asked for his perspective, Sunstein declined Tuesday to discuss the vacancy.
Defenders of the push for increased regulation were critical of Sunstein’s leadership at the OIRA. Critics said Sunstein, a devotee of cost-benefit analysis, slow-walked some rules and was too business-friendly.
“I’d like to see someone who understands that regulatory agencies play a very important role in protecting people,” said Steinzor of the Center for Progressive Reform.
Meanwhile, business groups fear the appointment of an ideologue who might press forward with regulations without regard to their impact on the economy.
Howard Feldman, director of regulatory affairs at the American Petroleum Institute (API), urged the selection of “someone who gets the big picture.”
The institute, which represents the oil-and-gas industry, is watching several pending regulations closely. Beyond looking at their broad impact, a new regulatory gatekeeper would only be effective if he or she could emerge as a figure with “the gravitas to be able to relate to the rest of the administration,” Feldman said.
In a testament to the position’s importance, each of the last few OIRA administrators went through difficult confirmation proceedings, Shapiro noted. Barring unforeseen events, the next one would be no different, he said.
“If you get anyone with any kind of record, it’s going to be contentious,” he said.