By James Goodwin, Center for Progressive Reform
The meeting logs for the White House Office of Information and Regulatory Affairs (OIRA) – the small but powerful bureau that oversees federal rulemaking efforts on behalf of the president – have looked a little different in recent weeks. As usual, they are graced by high-priced corporate lobbyists and attorneys from white-shoe law firms, along with a smattering of activists from public interest organizations. But also signing in have been nearly a dozen ordinary Americans, representing only themselves, and they’ve been there to express their views on one rule: the Department of Education’s proposal to weaken existing federal measures aimed at addressing sexual assaults on college campuses.
The draft proposal, which has been a top of priority of Education Secretary Betsy DeVos the last few months, is attracting considerable controversy. It overturns several decades’ worth of federal policy on the issue of sexual misconduct at federally funded educational institutions and codifies several extreme measures that, when taken together, would limit the ability of survivors to hold their abusers accountable. According to a leaked version, the proposal would significantly narrow the definition of what constitutes sexual misconduct, grant those who are accused new procedural privileges that will likely discourage survivors from coming forward, and make it easier for educational institutions to avoid accountability for failing to address sexual misconduct that occurs within their communities.
The draft proposal has been undergoing review at OIRA since the end of August in accordance with Executive Order 12866, which empowers the office to evaluate and demand changes to proposed rules before allowing rulemaking agencies to proceed with them. As part of that review, OIRA invites outside groups to weigh in on the draft rule, which ostensibly is aimed at swaying whether and what changes OIRA makes to the rule.
In practice, these meetings can be enormously influential, particularly for the economic and political elites that dominate this lobbying process. A CPR study found that during a 10-year period, for rules that were subject to outside lobby meetings, OIRA met with only industry representatives 73 percent of the time. The study further found that rules subject to these lobby meetings were 29 percent more likely to be changed during OIRA’s review process.
OIRA has attempted to defend these gross disparities by claiming that it operates under an “open door” policy – that is, it will take a meeting from any outside group that requests one. (As the Natural Resources Defense Council learned last June[subscription required] when it sought to schedule a meeting regarding EPA’s rulemaking to make its cost-benefit analysis process more anti-regulatory, OIRA has not been consistent in honoring the “open door” policy during the Trump administration.)
The Department of Education’s campus assault rule has been the subject of an unusually large number of outside lobbying meetings – 44 so far – and consistent with historical practice, many of these have been with law firms and public interest organizations. But nine of those meetings have involved individual citizens, with many of the requestors labeled as “Private Citizen” (here, here, here, here) or “Parent” (here, here, here, here). (The ninth meeting involves an attorney and his clients who appear to be among the victims of Michigan State University gymnastics team doctor Larry Nassar, who was convicted of serial molestation.)
To be sure, because of the lack of transparency regarding OIRA’s lobby meetings, it is impossible to know exactly who all of these individuals are or their views on the rulemaking. (I was unable to learn anything about the meeting participants through Google searches.) But it is safe to assume that most are survivors of campus sexual assault, the parents of such survivors, and perhaps others concerned about the issue of campus sexual assault.
It is exceedingly rare to see individuals – representing only themselves – participating in OIRA meetings even once, but nine times for one rulemaking is without precedent. The simple costs of participating in such meetings present one obvious barrier. But there are other institutional obstacles, all of which show how effectively meaningless OIRA’s “open door” policy is for the vast majority of individuals who might be concerned about pending rulemakings.
For starters, the currency of choice at OIRA is political power. To move the needle at all, lobbyists must at least show that their preferred regulatory outcomes align with the president’s policy priorities. Failing that, they must demonstrate some ability to inflict political or electoral pain, thereby compelling the administration to adjust its policy priorities to align with the lobbyists’ preferred regulatory outcomes.
Survivors of sexual misconduct, their families, and other concerned individuals are unlikely to trade in this currency. The administration’s policy priorities with regard to the rights of sexual misconduct survivors have been made crystal – if not grotesquely – clear. Trump himself is a confessed sexual offender, and he expended an enormous amount of political capital on a dogged campaign to elevate someone credibly accused of multiple counts of attempted rape to a lifetime seat on our nation’s highest court. Moreover, these individuals are unlikely to make a showing that they can inflict serious political pain on the president or have access to substantial amounts of money for campaign contributions.
Another barrier is that the official language at OIRA is cost-benefit analysis. Here, too, ordinary Americans are often out of luck. Survivors of sexual misconduct and their parents might be able to tell powerful stories about the pain and suffering they’ve endured, but unless they can express those harms in dollars-and-cents terms, they might well as be mute as far as OIRA staff are concerned. It would be monstrous to ask parents to present economic evidence suggesting that preventing the rape of their children ought to be worth X thousands of dollars. (The argument wouldn’t be unprecedented, though; during the Obama administration, the Department of Justice sought to develop a cost-benefit analysis for a rulemaking to prevent prison rape by creating a comprehensive taxonomy of different kinds of prison sexual misconduct and then assigning a dollar value to the prevention of each, measured down to the last penny.) But the ground rules at OIRA would demand that they do so.
In short, OIRA may be open to the public, but it is far from a neutral venue. Instead, its focus on politics and cost-benefit analysis renders it uniquely accessible to corporate interests to the exclusion of everyone else.
This systematic bias puts the OIRA review process squarely at odds with every other step of the rulemaking process, and indeed renders it inconsistent with the fundamental values of public participation and accountability at the heart of our system of administrative law. Accordingly, we would be much better off if the practice of OIRA’s lobbying meetings were abolished. At best, they are of tangential utility and duplicative of other, better avenues for public participation in the rulemaking process, including notice-and-comment. At worst, they cause unnecessary delays (CPR’s study also found that the reviews that were subject to lobbying meetings tended to last longer) while providing political and economic elites yet another opportunity to skew the rulemaking process even further in their favor.