Reflections on the E.O. 12866 Anniversary Event from a Bureaucrat Turned Academic

Bridget Dooling
By Bridget C.E. Dooling
October 02, 2018

Last week I had the pleasure of moderating a panel at our half-day event celebrating the history of Executive Order 12866. Over the course of the afternoon, we discussed the past and prospects of the E.O. My panel was designed to look back, so we started with the story of how EO 12866 came to be and moved forward from there. We have video available on the event page.

My key takeaways from the first panel include the following:

  • Sally Katzen opened my eyes to the extensive stakeholder engagement that occurred before President Clinton signed E.O. 12866.
  • John Graham shared his perspective that international adoption of E.O. 12866 principles is another metric of its success.
  • Howard Shelanski caught my attention with his hypothesis that E.O. 12866 and regulatory analysis has extended the life of the Chevron doctrine by giving courts higher quality administrative rulemaking records than would otherwise have been produced.
  • Clark Nardinelli confirmed something I have suspected, which is that E.O. 12866 helps integrate economists into regulatory decision-making. I wish I had thought to ask about other specialists like statisticians, scientists, and other experts whose insights can improve policymaking.
  • Neil Eisner highlighted the benefits of asking for alternatives to help regulators see past an all-or-nothing approach, and he also shared that, over time, he’s seen gains in technical expertise even in agencies with a track record of high-quality benefit-cost analysis (BCA).
  • I was also reminded of how much policy is contained within E.O. 12866. All of the panelists chimed in with different aspects of E.O. 12866 that they admire; the Unified Agenda, the call for retrospective review, the Regulatory Working Group, the definitions section (which sets up the test for “significance” among other things), and so on.

By the end of the panel we were talking about the implications of President Trump’s regulatory two-for-one Executive Order 13771, so we covered 25+ years in 90 minutes. For the rest of the afternoon, I was in the audience, soaking up the accumulated wisdom of our speakers. A few thoughts about the afternoon, from my perspective.

I recently joined the GW Regulatory Studies Center after 10+ years as a senior staff member in the Office of Information and Regulatory Affairs (OIRA). Working inside OIRA, I sometimes faced questions about the value of BCA for policymaking and the policy provisions of E.O. 12866, mostly from agency counterparts who were anxious to issue a draft rule that they might have been working on for months or years, and sometimes from White House officials who wanted to move quickly. Encountering OIRA’s process, when time is of the essence and perhaps there is pressure from above, can cause strain for government officials and staff—especially for those who don’t routinely engage with OIRA. I also recall inquiries from staff or legislators on Capitol Hill, members of the public, or from the press, wondering why OIRA was “holding up” a particular rule. Overall, I’m well-acquainted with impatience about regulatory analysis and OIRA review. I also understand how compelling our public problems are, and why people can be anxious to show progress in trying to solve them.

And so it was refreshing to find myself on the outside, surrounded by over 200 people who turned out to hear about the lengthy, bipartisan legacy and bright future of E.O. 12866. The audience for the event was a who’s who of Federal regulatory policy, drawing from government, private practice, academia, and the think tank world. The panelists included OIRA Administrators from four different administrations (including the current one), prominent academics, key legislative staff, and current and retired respected federal career staff. That so many people came together to celebrate E.O. 12866 was very encouraging to me. It is undeniable that regulatory review takes time and resources, but an overarching theme of the day was that this effort continues to be worth it.

In sum, I found myself feeling grateful to work in a place that has the ability to convene such a broad coalition of people who support E.O. 12866. The setting for this event was the same auditorium used to film CNN’s contentious program Crossfire in the early 2000s; there was something sweet in the irony of using the space for a largely unifying event. The politics and news of the day ensure that we have no shortage of issues for us all to disagree about, but at least for one afternoon at GW, the fundamental policies and principles of E.O. 12866 were not among them.

Bridget C.E. Dooling is a Research Professor at the GW Regulatory Studies Center. 

To view photos, videos, and other commentaries from our Celebrating 25 Years of EO 12866 event, CLICK HERE.