Distilling Power

The mismatch between the public's need for regulatory protections and the resources required to implement them continues to grow. That's why reforming the management of regulatory programs is crucial. This involves setting priorities, informed by the best available information on risks, benefits and costs. To reform regulation, you must focus on its source of power-the capacity to make law. Congress writes statutes that set goals and limits, but the most important legislative functions are carried out by bureaucracies, most within the president's control.

In an average year, Congress issues a few hundred statutes. Regardless of the administration and prevailing political climate, agencies issue 10 times that number of final rules and about as many proposals for new regulations. Sheer volume aside, the most specific statements of our rights and responsibilities are usually found in the Code of Federal Regulations. No significant regulatory statute can be administered or complied with until the implementing regulations are issued, and the impact of rules is almost always more immediate than that of statutes. This age of rule-making requires an agenda for governance-one that focuses on the president, the rule-makers and the people.

A president must embrace rule-making. President Reagan armed the Office of Information and Regulatory Affairs with "regulatory principles" and the power to review rules. Since then, each president has refined that rule-making management system. Some have criticized Office of Management and Budget review of proposed rules, but this practice has elevated the visibility and importance of rule-making. It also has resulted in some central direction, analytical rigor and accountability. A president must set forth principles to guide rule-making that are consistent with his agenda and prevailing statutes.

Rule-makers are lawmakers operating in a bureaucracy. Rule-making management is critical, to be undertaken only by those with a keen understanding of its legal, organizational, economic and political dimensions. Too often, this isn't the case. The Office of Personnel Management, in collaboration with agencies and commissions, should devise systematic professional development programs for rule-makers and their managers.

Let's reserve some of our collective hand-wringing about poor voter turnout for its equivalent in rule-making. For starters, public participation in rule-making is rare. Examples of public involvement, such as the Federal Communications Commission's ill-fated regulations regarding companies' ownership of multiple media outlets, are uncommon. Although these proposals generated significant responses from the public and businesses, even these participation rates were low relative to the numbers of persons affected by the rules. Public comments often are stimulated, if not orchestrated, by organized groups that enter the process early. When stakeholders are not well-organized, rule-making suffers.

For at least four decades, administrations and Congresses have tried to boost public participation. But these efforts are intermittent, fragmented and unsustained. Technology and sophisticated techniques offer almost unlimited potential. Rule-making should not be reduced to a plebiscite, but neither should the apparent lack of public comment be interpreted as a lack of interest. We find barriers to voting intolerable. We should be as indignant and active about their counterparts in rule-making. An agenda for governance in the age of rule-making should be part of the next president's legacy.