Secret nudging or just plain obstruction? The Sunstein legacy.

The White House systematically delayed enacting a series of rules on the environment, worker safety and health care to prevent them from becoming points of contention before the 2012 election, according to documents and interviews with current and former administration officials.

Some agency officials were instructed to hold off submitting proposals to the White House for up to a year to ensure that they would not be issued before voters went to the polls, the current and former officials said.

The delays meant that rules were postponed or never issued. The stalled regulations included crucial elements of the Affordable Care Act, what bodies of water deserved federal protection, pollution controls for industrial boilers and limits on dangerous silica exposure in the workplace.

The Obama administration has repeatedly said that any delays until after the election were coincidental and that such decisions were made without regard to politics. But seven current and former administration officials told The Washington Post that the motives behind many of the delays were clearly political, as Obama’s top aides focused on avoiding controversy before his reelection.

The number and scope of delays under Obama went well beyond those of his predecessors, who helped shape rules but did not have the same formalized controls, said current and former officials who spoke on the condition of anonymity because of the sensitivity of the topic.
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But Ronald White, who directs regulatory policy at the advocacy group Center for Effective Government, said the “overt manipulation of the regulatory review process by a small White House office” raises questions about how the government writes regulations. He said the amount of time it took the White House to review proposed rules was “particularly egregious over the past two years.”

Previous White House operations have weighed in on major rules before they were officially submitted for review. But Jeffrey Holmstead, who headed the EPA’s Office of Air and Radiation in the George W. Bush administration, said the effort was not as extensive as the Obama administration’s approach.

“There was no formalized process by which you had to get permission to send them over,” Holmstead said, referring to rules being submitted to the White House.

The recent decision to bring on Democratic strategist John Podesta as a senior White House adviser is likely to accelerate the number of new rules and executive orders, given Podesta’s long-standing support for using executive action to achieve the president’s goals despite congressional opposition.

Sen. Richard Blumenthal (D-Conn.), who chairs the Judiciary Subcommittee on Oversight, Federal Rights and Agency Action, said he’s concerned about the real-world impact of the postponements in the first term.

“Legal protection delayed is protection denied,” Blumenthal said. “I’ve spoken to officials at the top rungs of the White House power structure and at OIRA and we’re going to hold their feet to the fire, and we’re going to make sure they’re held accountable in a series of hearings.”

The officials interviewed for the ACUS report, whose names were withheld from publication by the study authors, said that starting in 2012 they had to meet with an OIRA desk officer before submitting each significant rule for formal review. They called the sessions “Mother-may-I” meetings, according to the study.

The accounts were echoed by four Obama administration political appointees and three career officials interviewed by The Post.

In his new book, “Simpler: The Future of Government,” Harvard law professor Cass Sunstein writes about his nearly four years as President Barack Obama’s “regulatory czar.” As the Administrator of the Office of Information and Regulatory Affairs (known as “OIRA”) within the Office of Management and Budget, Sunstein oversaw the regulatory output of the many agencies of the executive branch. Rules on worker health, environmental protection, food safety, health care, consumer protection, and more all passed through Sunstein’s inbox.

Some never left. A group of Department of Energy efficiency standards, for example, have languished at OIRA since 2011, as has an Occupational Safety and Health Administration rule to finally reduce exposure to the silica dust that sickens workers every year.

In his revealing book, Sunstein tells us why: It is because he, Sunstein, had the authority to “say no to members of the president’s Cabinet”; to deposit “highly touted rules, beloved by regulators, onto the shit list“; to ensure that some rules “never saw the light of day”; to impose cost-benefit analysis “wherever the law allowed”; and to “transform cost-benefit analysis from an analytical tool into a “rule of decision,” meaning that “[a]gencies could not go forward” if their rules flunked OIRA’s cost-benefit test.

Assertive intrusions into agencies’ prerogatives — prerogatives given by law to the agencies, not to OIRA — were necessary, Sunstein insists, because otherwise agency decisions might be based not on “facts and evidence,” but on “intuitions, anecdotes, dogmas, or the views of powerful interest groups.” In Sunstein’s account, OIRA’s interventions also ensured “a well-functioning system of public comment” and “compliance with procedural ideals that might not always be strictly compulsory but that might be loosely organized under the rubric of ‘good government’.” No theme more pervades Sunstein’s book than the idea that government transparency is essential to good regulatory outcomes and to good government itself.

The deep and sad irony is that few government processes are as opaque as the process of OIRA review, superintended for almost four years by Sunstein himself. Few people even know OIRA exists; in fact, the adjective that most often appears in descriptions of this small office is “obscure.” Even fewer people know that OIRA has effective veto power over major rules issued by executive-branch agencies and that the decision as to whether a rule is “major” — and thus must run OIRA’s gauntlet before being issued — rests solely in OIRA’s hands. Most people, I would venture to guess, think that the person who runs, say, the Environmental Protection Agency is actually the Administrator of the Environmental Protection Agency. But given OIRA’s power to veto rules, the reality is otherwise: In the rulemaking domain, the head of OIRA is effectively the head of the EPA.