Tracing Executive Order 12866’s Longevity to its Roots

October 2, 2018

We have just celebrated the 25th anniversary of President Clinton’s Executive Order 12866 (September 30, 1993). Some marvel at the fact that it has survived through Republican and Democratic Administrations.

Twenty-five years!  How could this be?

Having been there “at its creation,” I think there are two explanations for its longevity: 1) the process by which it was written and 2) not unrelated to the first, its substance—that is, the words, phrases, terms written into the Executive Order.

On process, we learned what “not to do” from the “roll-out” of its predecessor, E.O. 12291. The story has been told by one of its authors: Boyden Gray (Vice President George H.W. Bush’s counsel)—about convening all the senior regulatory officials in the Roosevelt Room of the West Wing and handing out the first few pages of the E.O., watching them as they read, mumbling under their breath, scribbling furiously in the margins, sighing deeply, and then he passed out the last page and there was President Reagan’s signature. It was already signed. No suggestions were wanted or actionable at that point. A done deed!

We approached it differently. We marked up E.O. 12291 in-house at OIRA and then—contrary to how Executive Orders are normally developed—we convened a series of separate meetings for agency regulatory officials; public interest groups—representatives from labor, enviros, public health, safety, and civil rights groups; the business community—Business Roundtable, Chamber of Commerce, NAM, NFIB; the Big 7 State and local groups—National Governors’ Association, Conference of Mayors, National Conference of State Legislatures, and perhaps others.

The ground rules for each meeting were always the same:  people got numbered copies of the draft; we told them we wanted their input, but that if there was any discussion of the draft outside the room, they were not going to be invited to any future meetings. And they had to return the draft to us before they left the room.

We got reactions from everyone—often critical, sometimes downright intemperate. We reconvened a small group within OIRA, produced draft 2, and then went through the same process again meeting with each of the stakeholders.  This time, when an issue was raised, we discussed it—told the group what the pushback would be from our conversations with other groups, and we asked for constructive suggestions that would satisfy them but also conceivably pass muster with the others. 

We went back to our offices and produced draft 3, and I think we then circulated it to a small group of people in the West Wing. With their sign-off, we went through the process again. We also convened a meeting with relevant Hill senior staffers, representing both process-oriented and substantive committees.

I think there was a draft 4 and maybe 5, and we ended with only a meeting of the senior staff of the regulatory agencies, soliciting, for one last time, any objections they might have and asking them for a commitment that their Administrator or Secretary was on board.

On September 30th, the President met with his Cabinet and asked if everyone was familiar with, and O.K. with, his signing this Executive Order. There were nods of acceptance, he signed it, and asked me to go to the press briefing room, where we announced it and answered questions.

The next day, I saw the news clips, and they were incredibly favorable, from across the spectrum. Representatives from the different groups said essentially the same thing: we don’t like everything in it, but it was a fair process and we were heard, and we can live with it. It was a lot of work and I would not recommend the process for most (if any other) executive orders, but I think it was important for this one, and I think its longevity is a direct result of that process.

The second feature was the product of that process. We learned a lot from each of the groups, and we incorporated what we learned in the drafting of the E.O.:

  • the importance of defining principles of good regulations.
  • of emphasizing the expertise of the agencies, but also the critical role of centralized review.
  • of clarifying the importance of quantification and monetization, but the essential role of non-quantifiable benefits and costs.
  • of setting limits on what OIRA would review and how much time it would take, and
  • on how the public could participate and be informed of what OIRA was doing.

By its terms, it provided a road map for sound rulemaking, but did not try to specify each and every turn in the road—leaving discretion (and judgment) to those implementing the E.O. That combination of clarity of objective and flexibility of implementation was also, I think, an important contribution to its longevity.

* This commentary reflects the views of the author, and does not represent an official position of the GW Regulatory Studies Center or the George Washington University.

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