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Biden’s Regulations Nominee Left in Limbo With Rules Spree Ahead

Oct. 27, 2022, 8:46 AM

Inside a chilly Capitol Hill office building in September, regulations chief nominee Richard Revesz waited to answer probing questions from a 14-member Senate committee known for its hostile confirmation hearings.

Instead, he faced a nearly empty dais of senators and few questions.

“Most folks, they’ve looked at your resume, they’ve looked at your background, and see that it’s consistent, and so there’s not a big press” to come to the hearing, Sen. James Lankford (R-Okla.), a senior member of the Senate Homeland Security and Government Affairs Committee, told Revesz.

That doesn’t mean Revesz, nominated to lead the Office of Information and Regulatory Affairs, is on a smooth path to confirmation.

Senators aren’t planning to return to Washington until mid-November, after the midterm elections. Senate Majority Leader Chuck Schumer (D-N.Y.) already has a packed legislative to-do list for the typically sleepy lame-duck session. A vote to confirm Revesz so far isn’t on it. Come January, it will be even more difficult for any of President Joe Biden‘s nominees to win the Senate’s approval if Republicans gain control of the chamber—especially one who would serve as the public face of regulation that the GOP despises.

No president, let alone one as determined as Biden to create change through regulation, took as long as Biden to nominate someone to run the Office of Information and Regulatory Affairs since the position started requiring Senate confirmation in the late 1980s, according to Senate records. Yet Biden has said little publicly to bolster Revesz since he announced his nomination on the Friday afternoon before Labor Day.

Biden believes Revesz can “earn bipartisan support,” White House spokeswoman Olivia Dalton said, adding that the president’s team will “continue to work with Congress to ensure he is considered and confirmed as swiftly as possible.”

Revesz’s job will be especially crucial if Democrats lose control of Congress. OIRA is one of the government’s most quietly powerful offices, charged with vetting rules penned by individual agencies. Without a working majority on Capitol Hill, Biden will need that team’s help to advance his policy plans through regulation and to implement the laws he’s already signed.

Temporary Climate Leaders

As Revesz awaits the Senate’s approval, a few of Biden’s top aides are bringing agency staff together to hash out the details of his economic and climate regulations. That’s a job traditionally done by the regulations chief, who mediates disagreements between departments on how to implement the president’s wishes.

Biden in September named John Podesta, former chief of staff to President Bill Clinton, to roll out the clean energy tax credits and environmental mandates included in the $370 billion climate law (Public Law 117-169). This is Podesta’s third stint working in a Democratic White House, giving him the authority to make sure projects are finished on time and on budget, said Sean Moulton, a senior policy analyst at the Project on Government Oversight.

“When you bring in someone with the visibility, clout, and experience of someone like Podesta, you’re making it clear to the agencies that this is someone who the president wants you to listen to,” Moulton said.

Separately, Biden last year named top economic adviser Brian Deese to lead a team of aides from the regulations office and eight departments to advance policies to increase competition in the economy.

Having that process led by senior White House staffers who aren’t subject to Senate confirmation gives Biden more direct influence over the work of independent agencies, like the Federal Trade Commission and Federal Communications Commission, that have been charged with roughly half the tasks in the executive order.

The team of aides and the regulations office complement—but don’t replace—each other, the White House press office said in a statement last summer.

Days before Biden nominated Revesz, he named legal scholar K. Sabeel Rahman as OIRA’s temporary political leader.

Rahman wrote in 2016 that the US should make it easier for “working-class” Americans to weigh in on potential regulations to prevent industry from having too much sway over government decisions. He recommended that departments ask Americans outside Washington for feedback on each rule.

As long as Revesz’s nomination sits on Capitol Hill, Rahman can steer OIRA as its top political official, according to federal law.

Legal Obstacles

If confirmed, Revesz would be uniquely positioned to help shield the president’s climate regulations from legal scrutiny, a challenge that has derailed the administration’s decisions repeatedly. While at New York University, Revesz tracked and evaluated the Trump administration’s poor record defending its environmental decisions in court.

Trump-appointed judges struck down a few of the Biden administration’s most controversial rules, including the pause on evictions, vaccine-or-test requirement, and mask mandate on trains. The judges said federal agencies didn’t have the authority to write those regulations, adding that Congress hadn’t given them express permission.

Revesz has also written dozens of books and articles on the environment, law, and regulation.

Former OIRA administrators from both parties support his nomination, as do dozens of administrative law scholars. The scholars emphasized his bipartisan appeal in a letter to the Senate—a characteristic that so far hasn’t helped propel his nomination forward on Capitol Hill. The president has relied on temporary leaders throughout his presidency to stand in while the president decides on a nominee and waits for that person’s confirmation.

“His intelligence and integrity are legendary among all of us who have worked with him,” the scholars wrote.

To contact the reporter on this story: Courtney Rozen in Washington at crozen@bgov.com

To contact the editor responsible for this story: Bernie Kohn at bkohn@bloomberglaw.com