Even the best mainstream news stories on the regulatory process tend to mention the number of deadlines an agency has missed as if that’s an indication of its performance. But that kind of coverage is actually an indication of just how little we know about what’s going on behind the scenes.
For one, deadlines are essentially nonbinding. While agencies are technically required by law to aim for them, if (and, more often, when) they miss them, there are very few consequences. As long as an agency can demonstrate that it’s working on a rule, Congress and special interest groups have very little recourse, except to attempt to embarrass and discredit the agency for missing its deadline—which is exactly what they do.
Deadlines are also, more often than not, simply unrealistic. Agencies are required to adhere to the plodding processes outlined in the 1946 Administrative Procedure Act, all of which can be slowed down by external forces—by no fault of the agency’s own. For example, the APA requires that the public be given an adequate amount of time to comment on a proposed rule. During the rule making for the Dodd-Frank financial reform laws, financial industry groups have regularly buried rule makers under mountains of comment letters and studies, all of which they must respond to in detail in their reports justifying a new rule. Industry groups have also regularly claimed that they need more time to review a rule, deliberately delaying its progress—a tried-and-true tactic to stall a rule they deem unsavory.
When an industry group requests more time, the agency is caught between a rock and a hard place. If it does not grant the extra time, industry can sue the agency for violating the APA or for not performing an adequate cost-benefit analysis. When that happens, the agencies usually don’t fare well. Of all the SEC rules overturned by the court on the grounds that the agency failed to do an adequate cost-benefit analysis, none have ever been re-proposed. If the agency does grant the extra time, industry and its allies in Congress can use public testimony and the media to harangue the agency for—what else?—missing its deadline.
