With election year upon us, the Nixon Administration has quietly moved to centralize in the White House the making of safety and environmental policy by Executive branch agencies. In a secret memorandum to “Heads of Departments and Agencies,” dated October 5, 1971, George Shultz, Director of the White House’s powerful Office of Management and Budget ordered that all “proposed agency regulations, standards, guidelines and similar materials pertaining to environmental quality, consumer protection and occupational and public health and safety” be submitted to OMB at least 30 days prior to their scheduled announcement.
There is enough secrecy and politics in government without resorting to this extraordinary pre-clearance by the White House over these health and safety agencies. There are also serious legal questions as to whether the Office of Management and Budget has the authority to impose such an iron grip. As if realizing the legal brinkmanship of his order, Mr. Shultz specifically excluded the independent regulatory agencies, such as the Federal Trade Commission, from such a requirement. But such important consumer and environmental agencies as the Food and Drug Administration and the Environmental Protection Agency cone squarely under this undisclosed directive.
Translating the dry bureaucratese of the memorandum into plain English, the new procedures will work the following way. Suppose the National Highway Traffic and Safety Administration merely wants to propose a new auto safety standard for public comment. This preliminary proposal has to be sent to the OMB where it could be squelched before the public even knows about it. Or suppose the Food and Drug Administration wants to issue final regulations regarding drug safety. The FDA must send this final regulation over to OMB where special interests, hidden from the public administrative process which the FDA has to adhere to by law, can persuade the White House aide to weaken it. Again, if the Department of Labor is considering the setting of job safety standards for a toxic chemical or gas, the OMB-White House group can engineer a delay or tell the Department to drop the idea.
Of course, the censored or overruled agency could defy the OMB-White House on the basis that Congress granted to it, not the OMB, the authority to establish such safety or health standards. But as a practical matter, no government official will dare oppose the OMB which controls access to Congress and, most importantly, decides what the agency or department’s final budget proposal will be to the Congress every year.
The Shultz directive is alien both to the constitutional prerogatives of the Congress and established administrative procedures which permit those affected by proposed regulations to have their input in the public docket or, occasionally, during open administrative hearings. When Congress passes a health and safety law, it authorizes a particular department or agency to administer and enforce that law. It does not authorize the White House to intervene and appropriate that process of decision-making, especially on such a detailed basis and outside the safeguards of administrative due process.
In the past, OMB’s predecessor, the Bureau of the Budget, reviewed the budget requests by government agencies before they were sent to Congress. This is an important continuing function and helps to keep government agencies more alert and sensible. Under President Nixon, however, the EMS has been brought closer to the bevy of Presidential aides in the White rouse who receive the secret pleadings of special interests that are often affiliated with large campaign contributors. These Presidential assistants operate like potent satraps, using the full power of the Presidency but accountable to no one but the President as they surreptitiously extend their influence throughout the Executive branch. Tine and again, such assistants as Peter Flanigan have interfered with agencies trying to perform their mission of consumer and environmental protection. Their interference and subsequent meetings with agency officials are not open to public scrutiny, reply or challenge. As such, they provide a conduit for final appeals by special interest groups or industry advisory committees which are outside the normal public protections of administrative law and the courts.
The Shultz order requires a reporting system to the White House-OMB which would facilitate such off the record pressure on the agencies. Thus, citizen groups, for example, who still have to confront the usual hurdles of agency procedures as well as the skilled representations of companies and trade associations will now be up against more unseen hands of White House operatives in such proceedings as food, auto, drug, radiation, toy, fabric and gas pipeline safety, and truth-in-lending, pollution controls and housing standards. The principle of open government, openly arrived at, has been further eroded by political expediency.