President Obama's re-election would normally mean there is no need to be concerned about "midnight regulations,” the surge in regulatory activity that occurs during the lame duck period of an outgoing presidential administration. However, according to insiders and experts on regulation, we may yet witness a post-election spike in rule-making that is similar to what we have historically seen after the Oval Office changed hands. Welcome to Washington, where even broad daylight can be made to appear like midnight.
There are three compelling pieces of evidence that bolster the claims that a flood of regulations is looming. First, the pace of rule-making under the current administration has not appeared to be anything close to normal in 2012. In an average year, about 650 significant regulations are reviewed by the Office of Information and Regulatory Affairs, which is housed inside the Office of Management and Budget. Through Election Day, the Office had only reviewed 359, and at the time of this writing, that number had grown to only 373.
Second, a large number of rules currently being reviewed by the Office of Information and Regulatory Affairs have been under review for much longer than normal. Executive Orders explicitly limit the Office's review time to a maximum of 90 days unless special extensions are granted. The average review time in the first three years of the Obama administration was 50 days, and since 2000, the average has been 54 days. So far this year, the average is 72 days, and will probably increase dramatically. Right now, 130 different rules have been sitting at the Office of Information and Regulatory Affairs for more than 90 days, which is not normal. Typically, the Office gets its reviews done as quickly as possible so that the regulatory agencies can move along with their work. Now, the Office is sitting on a backlog of 130 rules, and could potentially push them out the door in a hurry if it wanted to.
Third, the current administration is a year late in producing the unified agenda that is supposed to inform Congress, other agencies, and the public about the regulatory actions agencies are considering taking in the next year. Normally, the agenda is published every spring and fall, but the Obama administration has not published an updated unified agenda since the fall of 2011.
Taken together, these three facts raise several questions. For one, why would the administration significantly delay publishing the unified agenda (in defiance of its own Executive Orders and perhaps even federal law)? Despite claims of increased transparency, I am unaware of any attempt by the administration to explain this.