President Bush is giving an obscure White House office new powers this month over a wide range of regulations affecting health, worker safety and the environment. Calling it a power grab, Democrats running Congress are intent on stopping him.
Bush's order would require regulators to show that private markets had failed to address a targeted problem before they went after it themselves. The House voted last week to prohibit the Office of Information and Regulatory Affairs from spending federal money on the order.
Officially known as Executive Order 13422, Bush signed the directive in January and it is to take effect July 24. It also gives political appointees greater authority over how federal regulations are written.
The House vote came on an amendment to a bill that funds the White House next year. The bill goes to the Senate when Congress returns next week from a Fourth of July holiday.
Rep. Brad Miller, D-N.C., who teamed with Rep. Linda Sanchez, D-Calif., in offering the amendment, said it "stops this president or any president from seizing the power to rewrite almost every law that Congress passes, laws that protect public health, the environment, safety, civil rights, privacy and on and on."
The administration contends Bush's order merely strengthens a similar 1993 directive issued by President Clinton giving the White House budget office oversight of federal agency rulemaking.
Andrea Wuebker, a spokeswoman for the Office of Management and Budget, which manages the White House regulatory affairs office, said the order, along with an OMB good guidance bulletin, "will help increase the quality, accountability and transparency of agency guidance documents. We strongly oppose this amendment."
Bush's executive order:
—Requires agencies to identify "market failures," where the private sector fell short in dealing with a problem, as a factor in proposing a rule. The White House regulatory affairs office is given authority to assess those conclusions.
—States that no rulemaking can go forward without the approval of an agency's Regulatory Policy Office to be headed by a presidential appointee.
—Directs each agency to provide an estimate of costs and benefits of regulations.
—Requires agencies to inform the White House regulatory affairs office of proposed significant guidance documents on complying with rules. Critics say this will create a new bottleneck delaying the issuance of guidelines needed to comply with federal regulations.
"This can only further delay implementing health, safety and environmental protections," said Gary Bass, executive director of OMB Watch, a private watchdog group that joined numerous labor and good-government groups, including the AFL-CIO, Public Citizen and the Union of Concerned Scientists, in opposing Bush's order.
Democrats portrayed Bush's order as another example — similar to carrying out warrantless wiretaps or firing federal prosecutors — where the administration has tried to expand its powers while keeping Congress and the public in the dark.
Miller, who heads the House Science oversight subcommittee, tried unsuccessfully in at a hearing in April to persuade the White House regulatory affairs office's former acting administrator, Steven Aitken, to reveal what private groups might have been involved in rewriting the Clinton-era order.
Aitken stressed that the Clinton order also used market failure as a criteria in advancing new rules and directed agencies to appoint regulatory policy officers, many of whom were political appointees.
He was backed up at the hearing by Rep. Dana Rohrabacher, R-Calif.
"The pattern is that we are challenging the president's authority hoping to find a mistake and then making a lot of political hay about it," Rohrabacher said.
But the nonpartisan Congressional Research Service, in an analysis last February, said the new language appears to elevate market failure to greater prominence as a rulemaking rationale. It said the new OIRA oversight over significant guidance documents "may represent a major expansion of the office's (and therefore the president's) influence."
The new requirement that the policy officer be a political appointee "strengthens the relationship of the agency policy officers with the president," the researchers said.
They also noted that President Reagan made the White House regulatory affairs office the central clearinghouse for substantive rulemaking, reviewing 2,000 to 3,000 proposed regulations per year. With Clinton's 1993 order, the White House review of proposed regulations dropped to between 500 to 700 a year, the researchers said.
"OIRA has quietly grown into the most powerful regulatory agency in Washington," Miller's subcommittee said in a report in April.
Bill Kovacs, vice president for regulatory affairs with the U.S. Chamber of Commerce, said the White House regulatory affairs office now has about 35 people to keep track of the 4,000 rules federal agencies issue every year.
"It's only reasonable that you have some way of monitoring what your agencies are doing," Kovacs said, adding that the White House needs to assert control over the process.