Washington is understandably transfixed on the incoming administration. Profiles of cabinet appointees and expected agency heads fill the pages—and Web pages—of the Washington Post and other national newspapers.
But those concerned about D.C.’s regulatory footprint on these United States would be wise to pay as much attention to the outgoing overlords of the Clinton administration as the new bosses in Bush’s.
That’s the important message of the Midnight Regulations Watch, a Web-based project of George Mason University’s Mercatus Center, and a compelling econometric study by the center’s Jay Cochran.
The Post and New York Times coined the term “midnight regulations” nearly two decades ago, riffing off the infamous "midnight judges" that outgoing President John Adams appointed some 200 years ago. The papers’ political reporters noted in a series of articles that the Carter Administration was promulgating reams of new regulations in anticipation of being put out of work. Alerted to the handiwork, Ronald Reagan rewarded such diligence by placing a 60-day moratorium on implementing new regulations.
The question Cochran puzzles over in his study is this: What should we expect from the Clinton administration as it packs up?
The paper is duly academic, so it bandies such terms around as “institutional parameters,” “in office constraints,” and “Congressional ‘inputs.” But the basic point is simple: Just as burglars prefer temporarily unoccupied houses, regulators are more likely to pile on the rules when Congress isn’t watching and the clock is running out. Cochran cleverly calls the latter factor the “Cinderella Effect.” Clinton’s high-level bureaucrats know that they’ll soon be private citizens, losing the power they wielded as governmental aristocrats. For those who walk the corridors of power in D.C., that's the equivalent of returning to the life of an unwanted stepchild.
Cochran says we can expect a lot of new regs from the Clinton team. Indeed, if his model holds up, Cochran estimates that we'll be looking at some extra 29,000 pages of regulations in the federal register—an increase of 29 percent. Sadly, that model has been doing a pretty damn good job. On October 3, the day Cochran's paper was published, the Federal Register contained 59,104 pages. By December 26, more than 22,600 had been added.
Clinton’s chief bureaucrats have already promulgated some high-profile regulations. In November, the Occupational Safety and Health Administration (OSHA) handed down its 608-page magnum opus on ergonomics, the eventual price tag for which business groups place in the billions. Just last week, President Clinton announced new rules on medical privacy, a contentious issue that Congress has yet to deal with effectively.
Regradar.org compiled links to scores of newspaper stories on new regulations in November and December. Some mark controversy over proposed regs; others simply note a regulation being passed. But for every new regulation that makes front-page news and kicks up controversy—like the ergonomics regulations--there are many that simply sail by a public too busy to care much about arcane details of government. Did you, for instance, here the one about the U.S. Department of Agriculture's new rules on egg carton labeling and the temperature at which eggs must be kept from the time they drop from the hen till they make it to your plate? Not likely.
Some of these rules are blatant political payoffs. Five days before Christmas, for instance, the Clinton administration issued a new dictate that will allow federal procurement officers to blacklist companies that aren’t "good corporate citizens"; federal offices will no longer be allowed to buy goods and services from such firms, even if they offer better prices. In a tip of the hat to organized labor, the new regulation includes outfits with labor complaints filed against them -- not fully adjudicated claims of bad behavior, mind you, just complaints. The urgent need for this rule is perhaps best illustrated by its effective date: January 19th, 2001, just one day before President-elect George W. Bush becomes President George W. Bush.
Like so much of what vexes us from Washington, it’s not clear how to counteract the Cinderella Effect. Accepting the last regulatory will and testament of an outgoing administration is preferable to having its personnel stay in power indefinitely. Certainly, if the federal government remained limited to its enumerated powers, and the Congress didn’t delegate the actual writing of the regulations to unelected bureaucrats, there’d be no need for this discussion. But given then political ecosystem in which we live, there’s not much to do other than watch the show. And if your ox is one of the many that gets gored in Clinton’s endgame, you might find solace in the fact that it’s Bush, not Gore, who is taking over. There’s even talk of setting up a commission to review the new rules, once the Bushies are in power. Then in four or eight years, it’ll be his turn to rush out his pet regulations before heading back to his ranch in Crawford, Texas. That’s how the game is played.
Indeed, that final point is worth mulling over. A second issue Cochran studied was whether one party was more likely to pass midnight regulations. He found that the partisan label doesn’t matter. Rhetorically, everyone likes to neatly divide the Democrats and the Republicans into two parties, with the former being the party of government and the latter being the party of the private sector. But the objective of both parties is power. And what good is power if one doesn’t use it?