How Midnight Regulations Work

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Josh Clark: Hey, and welcome to the podcast. I'm Josh. Chuck's here.

Chuck Bryant: I am, as always.

Josh Clark: How's it going?

Chuck Bryant: The Andy Richter to your Conan O'Brien, as I like to say.

Josh Clark: I look a little more like Andy Richter though.

Chuck Bryant: Right. There is no Conan among us.

Josh Clark: No. No tall, 7' tall, lanky -

Chuck Bryant: Redheaded Irishman.

Josh Clark: - redheaded Irishman, yeah, pale, man, that man's pale.

Chuck Bryant: He is.

Josh Clark: Yes, but, okay, so this is Stuff You Should Know, if you couldn't tell by now. And we're gonna talk about midnight regulation today, Chuck. What do you think?

Chuck Bryant: I think that's a great, great topic.

Josh Clark: Okay. So, Chuck, let me paint a scene for you, right?

Chuck Bryant: Okay.

Josh Clark: Anytime a president is leaving the White House and a new one's coming in, there are transition teams set up, right?

Chuck Bryant: Right.

Josh Clark: Basically, you have a bunch of people who've been doing their jobs, you know, directing federal agencies, carrying out new policy, talking about new policy ideas. And they basically need to pass this information on to the next administration so that there's a smooth transition of power. This is ideal. Ideally, this is what happens.

Chuck Bryant: Right. They don't just put it in a folder called, "How to be the President" and leave it on the desk of the oval office.

Josh Clark: No. That would be really, really bad.

Chuck Bryant: Yeah.

Josh Clark: And some transition teams are more successful, and others - President Bill Clinton had a terrible, terrible time with it when he came into power. When he was leaving though, he'd gained a little more confidence. When he left, George W. Bush, the second Bush, took over. And when his transition team showed up, they found surprisingly that most of the keyboards in the White House offices, the letter "W" had been removed.

Chuck Bryant: I love that. I think that's hysterical.

Josh Clark: It really is hysterical, you know.

Chuck Bryant: Just the thought of - and not politically speaking, but just the thought of the president playing a practical joke on the next one.

Josh Clark: Yeah, and all of his aides and - yeah.

Chuck Bryant: And there was a whoopee cushion left in the chair, his office chair.

Josh Clark: Right, yeah, a "Kick Me" sign.

Chuck Bryant: Right.

Josh Clark: So that was awaiting President Bush when he took over. And there was a lot of other stuff awaiting him as well -

Chuck Bryant: A lot.

Josh Clark: - in the form of midnight regulations. Clinton actually published 26,000 pages of new regulations -

Chuck Bryant: Yeah, that's the number.

Josh Clark: - that were waiting for his successor, and every last one of them ran contrary to Bush's policies.

Chuck Bryant: Right.

Josh Clark: So, before we get into that, how about what are midnight regulations? What's the definition?

Chuck Bryant: Well, I'm just going off my brain here. I don't have a definition to read, but it's basically legislation that a president, a leaving president, will try and slip through in the waning months of their tenure.

Josh Clark: During their midnight period.

Chuck Bryant: During their midnight period, which is from the time that the election is held in November until they leave office basically in January?

Josh Clark: Yeah, until the inauguration.

Chuck Bryant: Yeah.

Josh Clark: And every presidency has a midnight, right? There's the end of a presidency, and it's those last few months. But some are way worse than others. Usually, the worst midnight periods, the worst transitions come when one party is losing control of the White House to another party.

Chuck Bryant: Right, big time.

Josh Clark: And they do everything they can to sabotage one another. So it's kind of rough.

Chuck Bryant: It's so unfriendly and -

Josh Clark: It's hostile.

Chuck Bryant: Yeah, it is. It's a little disheartening, but not surprising.

Josh Clark: And, basically, if you leave thousands of pages of new regulations, basically, what you're doing is you're either extending your influence as president beyond the time that you leave the White House - you could be doing it to hamstring or handicap the next administration. You're basically tying their hands, especially when it's, you know, when a democrat's taking over from a republican or vice-versa. You know, the views run so contrary supposedly that you want to keep the policymaking going. And it's actually, with a midnight regulation, it's actually exceedingly difficult to reverse. We'll get to that in a minute, right?

Chuck Bryant: Yeah. Many times, it's actually - your legacy as a president has a lot to do with these midnight regulations.

Josh Clark: Yeah, yeah. A lot of times, it represents the more radical fringes of a presidential agenda.

Chuck Bryant: It's just amazing that the last two months of an eight-year tenure can have more of an impact that the previous seven years and ten months.

Josh Clark: Well, the weird thing is you can sit there and watch midnight regulation going on, right? But it's not an openly acknowledged activity.

Chuck Bryant: Right.

Josh Clark: Okay. So, to prove that it exists, some political scientists have actually done studies on the Federal Register. The Federal Register is the complete comprehensive guide to federal regulation. And they publish - actually, they publish addendums to it every day. So some political scientists went back and looked at when, you know, the amount of pages published in the Federal Register -

Chuck Bryant: Right, per quarter.

Josh Clark: - per quarter, and they found that in the midnight of a presidency, especially during a transition of power from one party to another, the page volume increases, like, 17 percent.

Chuck Bryant: Yeah, 17 percent.

Josh Clark: So it's odd to think that you would have to go prove it, but, you know, the president's, like, "Oh, I'm just going about my midnight regulation right now." It's such a cynical and sinister, democratically speaking, tool because the president's no longer accountable.

Chuck Bryant: Right, yet so many people don't even realize it's going on.

Josh Clark: No, no.

Chuck Bryant: I know.

Josh Clark: And it's going on right now. I know you have a couple of things you wanted to mention, right?

Chuck Bryant: Yeah. I mean, I've got a list. There's actually a great website called - that's P-R-O dash - and you can get a full list there of the midnight regulations that President Bush is trying to get through, and not drawing judgment on any of them. It's up to you to decide, but that's a good website you can go to, to actually read them and get a status on whether or not it's open for comment, or closed for comment, or under review, or approved, or finalized, or in effect. And we'll get to the comment part in a little bit, too, right?

Josh Clark: Yeah, yeah, we will. Let's talk about how it works, right?

Chuck Bryant: Right.

Josh Clark: So, basically, the legislative branch identifies a problem and says, "Well, we can create this agency to address that problem," say, the Environmental Protection Agency or the Securities and Exchange Commission or whatever, the FDA, doesn't matter. All of those were created by congressional mandate, right? But it's up to the executive branch, the president's side, to make sure that these mandates are being carried out. And how that's carried out is left pretty much to the discretion of the president. Congress can threaten to withhold funding or something like that. They can also repeal laws. We'll get to that in a second, too. But, for the most part, the president issues regulations - or the executive branch issues rules and regulations on how federal agencies should act, right? So if you have a really pro-business president, they're probably not going to give the SEC a lot of power. And if you have somebody who's very much pro-consumer, the SEC will likely look out for investors more through those regulations, right? And it's a lot more than just investors. I mean, just about every aspect of our lives as Americans is impacted by these regulatory agencies.

Chuck Bryant: Yeah, big tim e.

Josh Clark: You know, I mean, like, the EPA. You and I have to go get admissions tests every year before we get a new tag.

Chuck Bryant: Right.

Josh Clark: That's EPA. That's a federal regulation. We can't run around shooting heroin between our toes. DEA looks out for that kind of thing. And there's just a lot more, like, profanity on television, that's the FCC.

Chuck Bryant: Right.

Josh Clark: So we're impacted in many, many ways. This isn't, like, just some high-up hierarchy thing that's going on politically speaking. Federal agencies are actually where the government and the public touch.

Chuck Bryant: Yes.

Josh Clark: Okay.

Chuck Bryant: That's a good way to say it.

Josh Clark: Thanks. Thanks a lot. I appreciate that.

Chuck Bryant: Sure.

Josh Clark: So, okay, so we're impacted by this. And a president's views will direct how much we're impacted, okay? So these new rules are created. The Office of Information -

Chuck Bryant: Information and Regulatory Affairs.

Josh Clark: They review these things, right?

Chuck Bryant: Exactly, especially if it's big money involved.

Josh Clark: Yeah, $100 million impact or more on the economy annually.

Chuck Bryant: Right. That's when they get, you know, special attention.

Josh Clark: Right, right. So the OIRA is supposed to look at these things, these new proposals, these proposed rules, and they're also supposed to, well, they're supposed to look to see if these things are cost - or the cost-benefit analysis.

Chuck Bryant: Sure.

Josh Clark: They're supposed to look if the rule's even needed, if there's any way to use market forces to stimulate the change that these rules are meant to address, and any competing theories that may actually be better, competing alternatives to the proposed rule. So you can imagine for each proposed new regulation, this is supposed to take a lot of time.

Chuck Bryant: Oh, yeah.

Josh Clark: If the OIRA signs off on the thing, an announcement gets published, and they actually publish an announcement in the Federal Register when they're first considering it. Then they publish another announcement saying what the outcome was. Once the OIRA signs off on it and it's published in the Federal Register, either 30 days for kind of smaller things, 60 days for big regulation that becomes law.

Chuck Bryant: Right. And that 60-day time period is pretty important because what a president will do when they're leaving office, if they hit their deadlines and get these through quick enough, the 60 days is up before the next president comes in, and it makes it a lot harder to undo what they've done.

Josh Clark

Yeah, yeah. Once it's become law, the process to repeal it is pretty much the reverse of the process to have it become law.

Chuck Bryant: Right.

Josh Clark: You have to provide studies. You have to provide alternatives. The president doesn't just come in and wave his or her magic wand and say, "Everything my predecessor just said is wrong, and it's gone," right?

Chuck Bryant: Good try, but no.

Josh Clark: And that's actually been a proposal to solve the midnight regulation is to allow incoming presidents to repeal any law cast in the midnight period.

Chuck Bryant: Right.

Josh Clark: This is not necessarily the case, or this has never been entertained, as far as I know, seriously. There are some things you can do as an incoming president, right, to stop this regulation?

Chuck Bryant: Right.

Josh Clark: Whatcha got?

Chuck Bryant: So once the new administration's in, they have to show why repealing it is a good idea, and a lot of times, they have to provide an alternative form of legislation. And then Congress actually has a tool as well, called the Congressional Review Act, and this came about in 1996.

Josh Clark: Which is ironic because the president that signed that bill into law was the most prolific midnight regulator of all time, Bill Clinton?

Chuck Bryant: Correct.

Josh Clark: He had, like, 26,000 pages published in the Register. Second to him was Jimmy Carter, whose presidency the term was coined after because he just took this old-fashioned tool to a brand-new level. But, yeah, Clinton signed the CRA into law, right?

Chuck Bryant: Right, which basically repeals new regulations, allows Congress to repeal these new regulations with a simple majority in the House and Senate, and it still requires a president's signature though.

Josh Clark: So it only works sometimes, and the only time that it works is when the president and Congress are controlled by the same party.

Chuck Bryant: Exactly.

Josh Clark: Right? Because if you have a president who is coming in, and Congress is of an opposite party, Congress isn't going to take up the CRA to repeal anything because they were with the old president, right?

Chuck Bryant: Right.

Josh Clark: And then if you have a president who's carrying on the same party from the old president, and Congress is new and of the other party, they may take up moves to repeal anything, and the president's not gonna sign off on it.

Chuck Bryant: Right, which explains partially why it hasn't been used that often, even though in 2001, that was the case. I think it was only used one time officially to repeal one of Billy Boy's.

Josh Clark: Yeah, to repeal regulations that would prevent repetitive workplace stress injuries.

Chuck Bryant: Interesting.

Josh Clark: Yeah.

Chuck Bryant: I think one of the things that I thought was interesting when I was reading this was one of the reasons - because I thought, you know, why is it so easy to get these laws pushed through at the final minute? And that's exactly why. It's because they're overloaded with, like you said, 26,000 pages, but they're not given any extra staff or anything.

Josh Clark: Right.

Chuck Bryant: And I think I read one stat on one of these environmental laws that Bush is working with the EPA for. They did the average time, and it was nine seconds for the amount of employees that they had and the amount of comments, nine seconds to read one of these comments and respond to it.

Josh Clark: Yeah. They went through 200,000 public comments on one new piece of regulation in four days.

Chuck Bryant: Right. So that kind of answers your question why it's easy to get these things through.

Josh Clark: Yeah, because don't forget the OIRA is part of the Office of Management and Budget, which is a White House office. If federal agencies are directed by the president, the group in charge of reviewing these proposals are directed by the president, it's basically the executive branch running the show on this new regulation. And it is, it's very easy to get pushed through. Like I said, it's a very cynical use of power.

Chuck Bryant: It is.

Josh Clark: The president's no longer accountable. Another proposal for ending midnight regulation is not to allow the president to propose any more regulation during the midnight period. Like, "You can't make new laws any more. Sorry. You've been, you know, you've either served both of your terms, and somebody else has been selected, or you've been ousted because someone else has been selected. Either way, your presidency technically ended November 5."

Chuck Bryant: Yeah. I think that would be more effective because basically what you would do there is you'd have a president who - I think a lot of times, administrations kind of hold these in their back pocket because they know, why try and introduce it as law when it can be debated?

Josh Clark: Um hm, or when I can be impeached?

Chuck Bryant: Yeah, or when I can be impeached? I'll just kind of hang onto this until I'm on my way out, and then just kind of sneak it through the backdoor.

Josh Clark: Bush actually - I heard it called an 11:00 regulation flurry.

Chuck Bryant: Oh, really?

Josh Clark: Yeah, because his chief of staff, Joshua Bolten, apparently sent a memo out to all agencies saying, "If you want new stuff in, prepare it by June 1 so we can have it passed by November 1," which is well before the deadline.

Chuck Bryant: Well, I think they did that because President Clinton famously did not get his through within the 60-day period.

Josh Clark: He waffled until the end, didn't he?

Chuck Bryant: He did. Well, he was busy with defending himself a lot of that time.

Josh Clark: Yeah, that is true.

Chuck Bryant: Not making excuses, but there was a lot going on in his final years. Let's just say that.

Josh Clark: Yeah, yeah, that's absolutely true.

Chuck Bryant: So, yeah, he didn't get his in on time, and so President Bush was able to come in and get a lot of those turned back.

Josh Clark: Well, Bush, like Clinton and Regan, issued an executive order that says just anything that's under review right now that hasn't been published in the Federal Register, it's suspended. But you can't just do that. You have to - you're fighting a political fight a lot of times. When Bush came in, one of the things that Clinton had left for him was a new regulation on acceptable arsenic levels in the water supply.

Chuck Bryant: Correct, just one. That was just one.

Josh Clark: That was just one of them, yeah, yeah, yeah. But it would have an impact on business. And, as we all know, Bush is so pro-business, you could also make an argument that he's anti-consumer. And he's just always kind of been on the side of business, right? He didn't like how it impacted things like mining, the mining industry, water, the water boards who would have to step up their water purification.

Chuck Bryant: Right, not water boarding. Don't get confused.

Josh Clark: No, that came later.

Chuck Bryant: Right.

Josh Clark: So he basically said, "This one in particular is suspended, and I'm gonna fight it to the death." And he spent a lot of political capital after he came in, fighting this regulation that he ultimately had to bite and accept. And he ended up eating 80 percent of them.

Chuck Bryant: Well, I think he was on record saying that that was a big mistake on his part, correct?

Josh Clark: Yeah, because he became painted as basically an anti-environmentalist from the get-go. But that's not necessarily to say that that wasn't a deserved reputation from what he's doing right now.

Chuck Bryant: Right. Most of - and if you go to this ProPublica site, most of the midnight regulations he's trying to get through have the letters, "EPA" at the front of them, so regardless of what side you're on, they are environmental issues.

Josh Clark: Yes, that is true.

Chuck Bryant: Trying to [inaudible] balanced here. I could read a few of them to you just by title. We won't get into them because it would take too long. But "Power plants be exempted from installing pollution controls. The EPA may ease restrictions for power plants near national parks. EPA may allow certain hazardous waste to be used as fuel." I read another one about rocket fuel being allowed in drinking water. Fisheries - I've been doing a lot of research on fisheries right now because I'm writing about fishing quotas, and there's a lot of work being done to basically allow - to push the science out of it as far as studying fish populations.

Josh Clark: Well, yeah, there won't be any independent scientific review, right?

Chuck Bryant: Right. It's basically saying -

Josh Clark: Who's going to be deciding whether it has an environmental impact?

Chuck Bryant: Well, the fisheries are gonna be deciding that, and I think we all know the fisheries are probably gonna say, "Hey, let's keep fishing."

Josh Clark: Well, that's a - I read somebody who's part of a special-interest fishing - fishery group who was saying, "No, no. That's not true. We'll self-regulate." But maybe it's one of those things that's yet to be seen.

Chuck Bryant: Yeah ! I'm a bit of a cynic when it comes to things like companies self-regulating themselves.

Josh Clark: Yeah, as am I.

Chuck Bryant: There hasn't been a lot of proof over the years to kind of back that up.

Josh Clark: I got another one for you.

Chuck Bryant: What's that?

Josh Clark: Financial planners will no longer have to disclose any conflict of interest in the advice they give to anybody.

Chuck Bryant: That sounds like a good idea.

Josh Clark: Yeah, that's a good one. And there was one called the right-to-conscience rule. Basically, it says that if you are a healthcare provider, you can't not hire somebody if they would refuse to provide birth control, which basically then, you know, you have protection - it's a right to conscience is based on abortion. And a doctor can refuse to - you can't force somebody to perform an abortion, in other words. They have a right to conscience. So, basically, this extends that to contraception, which now kind of equates contraception with abortion, which has a lot of people a little nervous.

Chuck Bryant: Right. And I think this - I don't think this is the same one, but it's another one that has to do with abortion. It's federally funded institutions can turn people down for an abortion for moral and religious reasons.

Josh Clark: Yeah, I think that's part of the same one.

Chuck Bryant: Is that part of the same one?

Josh Clark: It's pretty expansive, yeah.

Chuck Bryant: Yeah.

Josh Clark: Yeah. So there's a lot of stuff. We have a lot of big changes to look forward to. I also heard there's some oil drilling going on now in a polar bear habitat.

Chuck Bryant: Right.

Josh Clark: But, yeah, we'll look to see what Obama can do because, you know, a lot of these things very much fly contrary to things he's publicly said he opposes, or they fly in the face of his views. But he may have a hard time doing it because Bush did it right, it sounds like.

Chuck Bryant: Yeah. I think regardless of what political spectrum, what side of the spectrum you fall on, it's just fascinating to look at the push and the pull of the transition between administrations. It's fascinating.

Josh Clark: It absolutely is. And, also, if you think about it, what Bush did with the right-to-conscience thing, he basically just set Obama up for a national fight about abortion, right out of the gate. So it's gonna be really interesting to see how it's handled.

Chuck Bryant: Because he doesn't have enough to worry about.

Josh Clark: Exactly, yeah.

Chuck Bryant: "Here's this, too."

Josh Clark: Yeah, so midnight regulations. There you have it.

Chuck Bryant: Yeah, it's a good one.

Josh Clark: And, Chuck, you know what time it is, right?

Chuck Bryant: It is time, Josh, for listener mail.

Josh Clark: All right. So what do we have?

Chuck Bryant: I've got a few quick ones today. I've got a couple of corrections because we get stuff wrong. People, you might not realize that this is largely unscripted, so we'll bring up something we didn't even know we were gonna bring up, and sometimes we don't have the exact fact on that. So we count on the listener to point us in the right direction sometimes. Yeah, that's exactly what happens. In this case, Darryl Kowalski of Denver sent us a message about the OCD podcast. And he says he wants to make a correction on something about when I mentioned Chris Jackson, the basketball player, changed his name to Mahmoud Abdul-Rauf in 1991, and he actually had Tourette's syndrome, not OCD.

Josh Clark: Yeah, there's kind of a big difference.

Chuck Bryant: Actually, there's not.

Josh Clark: Really?

Chuck Bryant: Yeah. So I will school you like I schooled Darryl in my email reply.

Josh Clark: Or like Chris Jackson would school both of us in basketball?

Chuck Bryant: Yeah, he would. Actually, I'm not bad.

Josh Clark: I'm pretty sure Chris Jackson could -

Chuck Bryant: Yeah.

Josh Clark: Yeah.

Chuck Bryant: Well, if he's done tying his shoes, which was part of the problem. Tourette's and OCD actually are often misdiagnosed as one to the other because they have a lot of the same symptoms.

Josh Clark: I gotcha.

Chuck Bryant: So one of his deals was he spent so much time tying his shoes or to hit the perfect shot before he left the court, so that was actually Tourette's at work, but they are very similar in some ways.

Josh Clark: Hey, brief aside, have you ever seen the documentary, "Twitch and Shout"?

Chuck Bryant: No.

Josh Clark: It's about Tourette's. It is one of the best documentaries I have ever seen in my life.

Chuck Bryant: I'll have to add that to my queue.

Josh Clark: Yeah.

Chuck Bryant: I have another one on gorilla gardening. Someone wrote in from the Netherlands, our friends in Holland. Dave Inn says that Josh's comment on bouwerie being a Dutch farm is wrong. That was true in the old days, but that word is long gone basically in the Netherlands, and now the word for farm is pronounced - he gave me an English pronunciation, thank goodness - boerdery - boerdery or boerdery - and that's what a farm is now in the Netherlands.

Josh Clark: I need to brush up on my Dutch.

Chuck Bryant: So we were wrong there.

Josh Clark: I could really make my way in, like, 16th century Netherlands.

Chuck Bryant: Right. You'd do well for yourself.

Josh Clark: But apparently now they'd be, like, "What the hell are you talking about?"

Chuck Bryant: Right. And I've got a final quick one from our fan Devon Wallace wrote in. Basically, he was one of these guys that writes in and says, "Hey, say my name on the air." And I wrote him back and said, "No, no, Devon. That's not how it works. You need to give me something." So I requested that Devon write a haiku, and if he did that, then we'd mention his name, and he actually did.

Josh Clark: And he did, too, didn't he?

Chuck Bryant: So here's his haiku: "Mountains and rivers, red squirrels hiding in trees, huge rocks in the park."

Josh Clark: Beautiful.

Chuck Bryant: And, depending on whether you think "squirrel" is two syllables or one, I'm debating this haiku.

Josh Clark: Well, you say, "squirrel."

Chuck Bryant: Well, I say one syllable, in which case, this is not a haiku.

Josh Clark: Oh, so it's a slower roll would make it a haiku?

Chuck Bryant: Yeah, a high "Q" or a haiku.

Josh Clark: Yeah, we'll go with that. We'll go with that.

Chuck Bryant: So thanks, Devon, for the haiku. That was well done.

Josh Clark: Yes, thank you. Squirrel.

Chuck Bryant: Squirrel.

Josh Clark: Well, if you wanna learn more about squirrels, midnight regulations, of course, and actually, we have a great video on Tourette's on the site, you can find all that stuff at Announcer: For more on this and thousands of other topics, visit