The Obama administration roared into office four years ago with an openly ambitious regulatory agenda, releasing a higher-than-usual number of major regulations in the first two years. In 2012, the number of new regulations has plummeted in a year in which the president's regulatory policies have emerged as a major campaign theme.
Federal agencies are sitting on a pile of major health, environmental, and financial regulations that lobbyists, congressional staffers, and former administration officials say are being held back to avoid providing ammunition to Mitt Romney and other Republican critics.
Despite looming legislative deadlines in the Affordable Care Act, court deadlines requiring environmental-protection rules, and a financial industry awaiting clarification on key reform details, the pace of regulatory release has slowed by almost half. The drop-off stands out not just compared to earlier years of Obama's term but also compared to other years in which presidents are running for reelection, according to analyses from experts at George Mason and George Washington universities.
The administration has also failed to release a required regulatory outlook document, describing its regulatory agenda. Such documents are supposed to be published every six months; the most recent one was published in January, making this the longest lag between outlooks since the deadline schedule was created in 1994.
The slowdown comes in an election year in which government regulation has exploded as a hot campaign theme. Romney has assailed the president for costly overregulation, often slamming specific rules: He describes EPA regulations of power-plant pollution as a “war on coal,” and a rule requiring employers to cover contraception in their health insurance plans triggered a firestorm over a “war on women.”
Sources in regular contact with agencies say they've been told that new rules won’t resume until after the election, and many expect an avalanche of new major rules shortly afterward.
"They're ready to burst," said Susan Dudley, director of the Regulatory Studies Center at George Washington University and a top official at the White House Office of Management and Budget during the George W. Bush administration. "Some people use the analogy of a closet door—you keep putting things in, and it's ready to burst."
In the business community, the anticipated surge of coming regulation has been likened to a tsunami. Business groups are worried about health care and environmental regulations, but also major outstanding labor rules. The agencies charged with implementing the Dodd-Frank financial reform law have routinely blown through legislative deadlines.
"There is a lot that's sitting, waiting to come out," said Daniel Bosch, manager of regulatory policy at the National Federation of Independent Business. NFIB estimates that there are more than 4,100 regulations in the pipeline. That list does not include the many anticipated regulations that are still with administration agencies.
OMB declined to comment on critiques that it is delaying completed regulation, though the number of regulations the White House has held for longer than the customary 60-day limit is significant; about 70 percent of regulations under review have been held for more than 90 days, according to Dudley’s analysis. Instead, OMB highlighted the administration's efforts to minimize burdensome regulation. "The Obama administration has taken steps to eliminate billions of dollars in unnecessary red tape and burdens to make government work better for our nation’s citizens and businesses while also protecting American lives and well-being,” said Moira Mack, an OMB spokeswoman, in an e-mail.
Much of the delayed regulation is tied to major Obama administration policies, not vestigial red tape. Both the Affordable Care Act and Dodd-Frank require significant regulatory clarification in order to move forward. State officials and businesses whose participation is critical to the success of health reform, in particular, fear that regulatory delays may cause problems in 2014, when the law's major provisions go into effect.
AMBITIOUS ON ENERGY
Obama, who came into office seeking major climate-change legislation, began reshaping regulatory policy on clean energy and the environment from the first days of his administration. At the Environmental Protection Agency, Administrator Lisa Jackson rolled out a stack of Clean Air Act rules to regulate toxic pollution from coal-fired power plants in 2009 and 2010. Jackson, a zealous clean air advocate, made it clear she planned to flex her regulatory muscles. Obama—at least at first—gave his blessing, despite fossil-fuel industry charges that the rules were a “train wreck.”
In 2010, EPA took on an even bigger role: After Congress failed to pass a climate-change bill, the agency began using regulation to control global-warming pollution. All those new regulations clashed with the 2010 midterm elections, where Republicans and the tea party, fired up against the growing role of government, made “job-killing regulations” a potent campaign cry.