By Tim Devaney - 08/23/14 06:17 AM EDT
(Video is from June 10, 2014)
Groups that closely follow regulations are expecting the Obama administration to continue issuing controversial rules through the midterm elections, despite the political risk it could pose for Democrats.
With time running out on President Obama’s second term, federal agencies are hitting the gas on a number of regulatory initiatives that are central to the White House’s “go-it-alone” agenda.
The pace of rulemaking is a stark contrast from the months leading up to the 2012 presidential election, when the flow of rules came screeching to a near halt.
The expectation that the gears of the regulatory process will keep moving highlights how the president's desire for a second-term legacy sometimes conflicts with the short-term political considerations of congressional Democrats.
“We can’t underestimate the role politics plays in regulatory decisions,” said Stuart Shapiro, a former staffer at the White House’s Office of Information and Regulatory Affairs, who is now an associate professor at Rutgers University. “It’s important to remember that at the heart of regulations are political decisions.”
Obama’s regulatory push is having a notable impact on Kentucky’s Senate race, where Senate Minority Leader Mitch McConnell (R) is using the Environmental Protection Agency’s controversial climate rule against his opponent Alison Grimes, a Democrat.
Critics say Kentuckians stand to lose thousands of coal jobs under the EPA’s climate rule, making it very unpopular in the state. McConnell has promised to fight back against the EPA’s climate rule, and has not been shy about pointing out Grimes’ Democratic ties to President Obama.
But Obama isn’t “backing away” from the EPA’s climate rule, said Ronald White, regulatory policy director at the left-leaning Center for Effective Government — or for that matter, from the EPA’s waters rule, which is just as controversial.
The EPA says the water regulation is needed to clarify ambiguity in the law, while critics say it would give federal regulators expansive powers over the small bodies of water such as those found on many farms.
“Obviously, there are still some sensitivities, but if President Obama were really worried about negatively influencing the midterm elections, would he have been this aggressive on climate? Would he have been as supportive on the waters rule?” White asked. “I suspect not.”
The opposite was true leading up to the 2012 presidential election, when critics say Obama twisted then-EPA Administrator Lisa Jackson’s arm into dropping a controversial ozone rule that would have established stronger air quality standards.
The ozone rule was unpopular with the business community, so the White House pushed it to the backburner to deprive Republicans of a campaign attack, White said.
“That was clearly politically motivated,” White said. “They made some lame attempt to say it was ongoing, but it was clearly politically influenced by the White House’s policy folks, who didn’t want to take on a major controversial rule in the year before a presidential election.”
The ozone rule wasn’t the only regulation that stalled in the runup to the 2012 presidential elections.
The number of economically-significant regulations that OIRA approved dropped to 83 in 2012, about a 35 percent decline from an average of about 127 rules during each of Obama’s first three years in office.
“The results of the election made people in the Obama administration realize that excessive regulation was a talking point Republicans could use,” said Susan Dudley, a former OIRA administrator during the George W. Bush administration.
The assertion from critics that the Obama administration may have been playing election-year politics during his 2012 campaign was given credence by a government report that came out late last year.
The analysis by the Administrative Conference of the United States (ACUS), an independent federal agency that monitors the government’s rule-making process, found that regulatory delays at OIRA spiked in 2012 as the administration put controversial rules on hold until after the election.
But the same can’t be said this time around with the congressional midterms approaching in November, observers say.
“I don’t think the Obama administration is willfully delaying regulations right now — at least not for the benefit of members of Congress running in November,” said Sam Batkins, regulatory director at the conservative American Action Forum.
OIRA is currently reviewing 24 rules and has already completed reviews of another 70 rules, putting the agency on pace to cycle through close to 125 rules by the end of the year.
Some say the tempo of regulations points to a schism between President Obama, who is focused on carving his legacy in Washington before his term expires in two years, and congressional Democrats, who are consumed with keeping control of the Senate.
“There is certainly a cost from President Obama’s point of view to slowing down the amount of regulations,” said James Gattuso, who studies regulations at the conservative Heritage Foundation. “I don’t see any reason why he would want to do that.”
Shapiro, the former OIRA official, suggested President Obama has “less incentive” to protect Senate Democrats this time around than he had to protect himself during the 2012 campaign.
“The president has some reason to put his priorities first, because generally speaking, an individual regulation won’t play as big of a role in a congressional election,” Shapiro said. "It’s hard to see a Senate race turning on that.”
That said, it’s not as if President Obama can accomplish all of his policy goals while completely disconnecting from his Democratic colleagues in the Senate, said Cal Jillson, a political science professor at Southern Methodist University.
“The last two years of his presidency will be determined, in large part, by whether Democrats maintain control of the Senate,” Jillson explained. “So he does have a stake in the midterms, but it’s not as immediate of an issue for him."