Beware the Midnight Rule boogeyman

Taylor Lincoln and Mike Tanglis

The impending end of the Obama administration has brought predictions that the president will rush through a burst of “midnight” regulations during the transition period after the election.

Government typically completes more regulations during transition periods than at other times. But the claim that such regulations are historically rushed, and therefore sloppy, does not hold up to scrutiny.

The average “midnight” rule completed during transition periods at the end of the last two administrations was under development longer than rules completed at other times over the past 17 years, we concluded in a recently study.

Critics also have argued that regulations must have been sloppily crafted simply because the government completes more of them during transition periods. But this is speculation. Tax accountants work more hours and complete more tax reviews between January and April each year, but are not accused of producing flawed tax reviews just because they are producing more of them.

U.S. Rep. Tim Walberg, R-Tipton, has introduced legislation, recently passed by the U.S. House of Representatives, that would prevent outgoing administrations from completing most regulations during the transition period.

One of Walberg’s main examples and sources of outrage is a rule on clothes washer efficiency completed at the end of the Clinton administration. Walberg says that entire rulemaking process took less than six months. In reality, his estimate was off by over five-and-a-half years. Walberg likely measured only the time after the proposed rule was published, but years of work occurred before that.

Walberg’s bill creates an exception to the prohibition on transition period rulemaking if the proposal is “deregulatory in nature.” Therefore, a late-breaking rule by the George W. Bush administration to allow concealed firearms in national parks might have been exempt from a prohibition like this.

The hysteria over midnight regulations are just pretexts for opposing all regulations, regardless of when they are finalized.

Taylor Lincoln is director of research and Mike Tanglis is senior researcher for Public Citizen’s Congress Watch division.