Biden’s yet to fill the job that may soon matter more than any other

The fate of President Joe Biden’s agenda could soon rest with the administrator of a tiny office deep within the White House.

But first, Biden needs to decide who that administrator will be.

After leaving the office without a permanent leader for the first 18 months of Biden's presidency, the White House is closer to picking someone to run its Office of Information and Regulatory Affairs. The obscure unit is nonetheless poised to wield outsized influence over the administration’s policy ambitions, especially if Democrats lose control of either congressional chamber this fall.

The office serves as a gatekeeper for rulemaking government-wide, coordinating, vetting and approving hundreds of federal regulations each year. It has final say over which agency priorities get fast-tracked and which get put on ice, and it will play a direct role in implementing major elements of Democrats' just-passed climate, health and tax law.

“The future of the Biden agenda rests on how efficiently large groups of people can edit Word documents,” said one administration official. “When everyone’s aligned, they can move fast. But sometimes, it’s death by a thousand cuts.”

Absent full control of Congress, the administration’s only sure path to advancing its goals across a range of top policy issues will be through regulatory action — giving OIRA broad power to shape the final two years of Biden’s term.

That lengthy to-do list includes quarterbacking agency efforts to roll out more stringent environmental regulations, deliver on Biden's vow to lower health care costs and alter parts of the tax code.

It will need to clear rules bolstering infrastructure programs and review new immigration initiatives underway at the Homeland Security Department — all while coordinating around the dozens more mundane rules required to keep the government running.

“OIRA is always at the center of administrative activity — the joke is it’s the most powerful agency nobody’s ever heard of,” said Sharon Block, who served as its acting chief through Biden’s first year. “Now, it becomes even more important.”

Since the office’s creation roughly 40 years ago, no recent administration has waited this long to nominate a permanent OIRA administrator. Block, who said she had no interest in the permanent job, left in February and the position has since been filled by another interim leader, Dominic Mancini, a 20-year veteran of the office.

White House officials have waffled for months over selecting a nominee, four people familiar with the process said, distracted by the various crises facing the administration and confounded by an ideological battle over OIRA that’s served as a microcosm of the fissures within the Democratic Party.

Progressive lawmakers and activists, still fuming over an Obama-era approach to rulemaking they contend was overly conservative and deferential to corporations, have pressed the Biden administration to break with tradition and pick a leader eager to hasten a wide array of regulations into law.

But economists and budget experts in the party’s establishment have pushed back, cautioning that Biden’s regulatory czar should serve more as a moderating force who prioritizes efficiency over speed — carefully weighing the merits of major regulations to determine how best to spend the administration’s limited time and resources.

“There’s a fork in the path,” said Michael Livermore, a University of Virginia law professor who has written extensively about OIRA. “Either return to the Obama/Bush/Clinton mode of moderates or … put someone in place who’s a hardcore ideologue aligned with the more wing-y elements of the party.”

Biden officials early in the administration signaled support for liberals in the behind-the-scenes battle over OIRA. Block, a veteran of the Obama Labor Department and Biden transition, had argued for revamping the office to minimize private-sector influence over regulations before becoming its top political official in January 2021. The administration appointed K. Sabeel Rahman, who similarly decried “corporate capture” in rulemaking, to a top post at OIRA.

And Biden on his first day in office ordered a report on ideas for updating the government’s evaluation of regulations to consider less quantifiable, non-economic factors backed by progressives like public safety and racial justice.

But a year-and-a-half later, the administration has yet to finalize any of those regulatory review recommendations. And it still hasn’t nominated — let alone confirmed — a person for the lead post.

Officials did begin vetting Vanderbilt University law professor Ganesh Sitaraman for the office’s top job. A former aide to Sen. Elizabeth Warren (D-Mass.), Sitaraman is a chief advocate for overhauling the government’s rulemaking process, warning the current system gives industries too much power to delay and water down regulations.

But the administration ultimately worried he couldn’t win support from the moderate Democratic lawmakers needed to secure confirmation in the evenly divided Senate, according to two of the people familiar with the process.

The White House’s search has more recently swung back toward the moderate end of the party, targeting environmental law expert Richard Revesz, the people familiar with the process said (E&E News first reported he was under consideration).

Revesz — a New York University law professor who’s been described as “a leading evangelist for rationality in governance” — has taken a more institutionalist view toward OIRA, arguing in favor of the analytical approaches to rulemaking that have frustrated liberals for years.

“He will satisfy almost no one,” said James Goodwin, a senior policy analyst with the Center for Progressive Reform. “He will find no favor with Republicans … and he will not be supported by progressives.”

A White House official declined to comment on the specifics of the search process, but said the administration plans to nominate “very soon” someone who it hoped would earn bipartisan support. The person added that in the meantime it has highly qualified people leading OIRA. A spokesperson for the Office of Management and Budget, which houses the 50-person OIRA, similarly said it plans to share an update "soon" on any changes to its regulatory review process.

Whoever Biden picks is unlikely to be installed until the end of the year at the earliest, with the prospect that the confirmation process could drag into 2023. And if the Senate flips, some worry, Biden risks missing his window to shape an office tasked with managing the under-the-radar work critical to cementing his policy legacy.

For Biden, executing on his regulatory priorities comes with the added challenge of fending off an increasingly conservative judiciary. The Supreme Court earlier this year sharply limited the Environmental Protection Agency’s authority to regulate greenhouse gasses — a decision Democrats sought to blunt in their climate bill by specifically granting the agency the authority to tackle emissions.

Still, the verdict has cast doubt on the administration’s ability to make ambitious administrative reforms across the board without running into immediate legal challenges, driving a further wedge between Democrats’ liberal and centrist wings. Progressives maintain the administration should go for broke and push out a wave of far-reaching regulations — challenging Republicans to sue on several fronts.

But that’s an approach the White House has yet to embrace, wary of getting bogged down in court battles that risk further restricting the power Biden can wield through the executive branch.

“Frankly, I think progressives are going to be disappointed,” Livermore said of the administration’s approach to its administrative agenda. “I don’t think he has any interest in losing in the Supreme Court on a major regulatory action.”