A president sometimes leaves distasteful parting gifts for his successor. Staffers for President Bill Clinton notoriously removed the "W" from White House computer keyboards as President George W. Bush was taking over the residence. Often the acts of vandalism relate as much to policy as to property. Known as midnight rulemaking, an administration will use its last 90 days between an election and the end of a president's term to rush passage or repeal a host of highly political regulations. Both Democratic and Republican administrations are guilty, which is why everyone has an incentive to curtail the practice. A promising effort to address it is under way.
As Bush was leaving the White House, his administration frantically passed favored rules for special-interest groups such as the oil and gas, mining and chemical industries. Clinton's midnight rules included an attempt to expand workplace protections to prevent workers from injuries due to repetitive motion. These kinds of hurried changes often come with limited public comment and internal review.
Already Republican leaders in Congress are worried that if President Barack Obama loses in November he will push to enshrine his agenda this way. House Speaker John Boehner and Senate Republican Leader Mitch McConnell sent a joint letter to the president last month warning Obama that he would jeopardize his promise of having an accountable and transparent presidency if he engaged in midnight rulemaking.
But there is every chance that Obama is not interested in governing like this. Since 2010, the Administrative Conference of the United States, an independent federal agency whose chairman is an Obama appointee, has been examining ways to reduce midnight rulemaking. A final proposal is expected in June. The draft recommendations are a reasonable middle ground between taming unpalatable rules passed after politicians are no longer politically accountable and giving an administration room to govern in its last months.
The conference's draft proposal tells outgoing administrations not to propose new rules during their final months except in emergencies. It suggests that Congress pass a law to give incoming administrations the power to suspend published rules that have not yet gone into effect for 60 days, so it can review them. Current law essentially gives Congress 60 days to expedite a repeal of new rules from an outgoing administration, but a politically divided Congress isn't likely to go along.
Legislation pushed by congressional Republicans who want to diminish Obama's power as soon as possible if he loses re-election would go too far, preventing federal agencies from finalizing regulations in the pipeline in the midnight period, even if they were initially proposed years before. The legislation is also skewed toward removing health, safety, environmental and worker regulations. It would allow lame-duck presidents to repeal regulations, just not adopt new ones.
Getting a handle on midnight regulations would benefit both parties and the political legitimacy of government. What congressional Republicans have proposed is unreasonable, but sensible reforms are possible if the parties work together.