Senators Working Across the Aisle for Better Regulation

We recently witnessed a small but welcome step toward bipartisanship — introduction of two bills in the Senate. We have served as the chief regulatory official for Republican and Democratic administrations, and we don’t agree on everything. However, we think the bills Senators Kyrsten Sinema (D-AZ) and James Lankford (R-OK) have introduced could not only offer targeted solutions to two problematic aspects of the regulatory process, but also contribute to some salutary goals President Biden has set.

The bills would 1) engage the public earlier in the process of developing major regulations; and 2) encourage the more systematic evaluation of regulations’ actual effects. These are both worthwhile on their own and consistent with objectives of both Democratic and Republican Presidents. They also could support President Biden’s interest in improving regulators’ understanding of how their policies affect different groups of citizens, especially those in disadvantaged or marginalized communities — considering not only total benefits and costs, but who receives the benefits and who pays the costs.

Engaging Public Input Early in Rulemaking: For more than 75 years, federal agencies have sought public comment on regulatory proposals. Yet the opportunities for public engagement often come after agencies have invested enormous time and energy in developing a regulatory approach. By that point, they are virtually locked into their proposals and are less receptive to considering alternative ways to address the problem. This can be frustrating for affected parties who — unless they are well-connected — find they don’t have a voice in the process.

To level the playing field for the biggest ticket rules, the “Early Participation in Regulations Act” would require agencies to issue advance notices of proposed rulemaking. Agencies would use these “ANPRMs” to share their early thinking on the nature of the problem and what different options are available to address it. They could gather valuable input from a range of affected individuals or groups without having these entities produce extensive studies or complicated analyses that often favor the well-financed participants during the agency’s official comment period. They could also gather information on how the anticipated impacts of different proposals might be distributed in the population — all before policy decisions are framed, or positions established.

Seeking broad input at the beginning of the process should not slow the rule’s development. And, to the extent the ANPRM invites input on deliberations that would otherwise have taken place behind closed doors, it may make the overall rulemaking process more efficient and fairer. While there will certainly be cases where an ANPRM would not serve the public interest, the bill provides exceptions for those so that additional time for process does not become a hidden cost.

Creating an Evaluation Mindset: Agencies invest a lot of resources analyzing regulations before they are issued, but rarely evaluate whether they achieved expectations after they are implemented.

The Setting Manageable Analysis Requirements in Text (SMART) Act’s approach to that problem is to require agencies to include in major new regulations a framework for how they will measure effectiveness and to incorporate plans for gathering the information necessary for an ex post evaluation. After 10 years, agencies would be expected to assess the rule’s outcomes, evaluate how well it is accomplishing its objectives, and determine whether it could be modified to achieve results more effectively. This retrospective evaluation could also help understand whether the rule had unintended consequences that disproportionately harmed disadvantaged populations.  

We believe the SMART Act could create an evaluation mindset and a feedback mechanism where agencies learn from examining regulatory outcomes and apply those lessons to improve future rules.

The two bills may not make headlines, but they reflect common-sense initiatives that could make regulatory decisions more transparent, informed, accountable, and fair, and yield improved regulatory outcomes for the American people.

Susan E. Dudley served as administrator of the Office of Information and Regulatory Affairs in the George W. Bush administration. Sally Katzen served as OIRA administrator in the Clinton administration.