Hiding in Plain Sight? Timing and Transparency in the Administrative State

Jacob Gersen & Anne Joseph O'Connell

Burying bad news is one of the oldest tricks in politics. As David Gergen, then an adviser to President Ronald Reagan, quipped in 1984, “It was one of the first lessons I learned when I arrived in Washington. If you’ve got some news that you don’t want to get noticed, put it out Friday afternoon at 4 p.m.”1 Administrative agencies are no exception in this regard. A spate of recent controversial agency policy decisions turned up in the holiday or weekend news cycles. In a letter sent to state health officials one Friday evening during a congressional recess in August 2007, the director of the federal Center of Medicaid and State Operations announced new standards that made it much harder for states to cover more children under the Children’s Health Insurance Program, angering officials in New York, New Jersey, and California. Agencies also appear to hide cancellations of proposed policies, especially those of earlier administrations. On December 31, 2003, the Occupational Safety and Health Administration canceled proposed rules that would have required hospitals, prisons, and homeless shelters to test their employees for tuberculosis, distribute facemasks, and quarantine infected workers, stating that voluntary standards were sufficient to protect public health. No major newspaper reported the cancellation of the uncompleted rules, which had been years in the making under President Clinton’s administration. Senators James Jeffords (I-VT) and Patrick Leahy (D-VT) formally complained about holiday announcements of significant regulatory policy changes by President George W. Bush’s administration, but according to President Clinton’s spokesperson for the Office of Management and Budget, all administrations “consider the timing of a controversial regulatory announcement.”2

Compelling anecdotes tend to attract rigorous analysis, and indeed, in the business context, the economics literature has long grappled with precisely how and why the timing of information release affects market response. The legal literature, however, has been comparatively devoid of either theoretical or empirical analysis of the policy context. Few scholars have sought a theoretical account of when agencies act, as opposed to how agencies act (what procedures are used) or what agencies say (what substance is promulgated). Our Article seeks to remedy this oversight by constructing a theoretical and empirical analysis of the timing of agency action. Simply put, once an agency has made a policy decision internally, when will that decision be announced to the public and why does it matter?

To the extent that there is conventional wisdom about the use of timing by agencies, it is that the visibility of agency actions can be significantly reduced or eliminated if actions are announced during a holiday or weekend news cycle. The micro-foundation for this view is generally left unspecified, and, on close examination, it is somewhat inconsistent. Is it that journalists simply do not register government actions taken on Friday afternoons? Do representatives of interest groups whose members potentially have millions of dollars at stake in agency decisions head out early for their vacation homes and never bother to check what happened the week before?

We suggest that the conventional anecdotal wisdom about the bureaucracy burying bad news is likely simply wrong or incomplete, at least in its most typical form. This critical claim is part conceptual and part empirical. A primary conceptual difficulty with the conventional account is its assumption that issuing policy during low-visibility time periods makes monitoring costs essentially so high such that no one will observe the hidden policy and hence that it will be all but impossible to mobilize political opposition. A problem for this view has to do with short-term versus long-term equilibria. Even if this were a successful short-term strategy, it is difficult to construct a long-term equilibrium in which such behavior is rational. If the media and interest groups do not pay attention to agency decisions announced on Friday afternoons or holidays, then surely it is in an agency’s interest to announce certain decisions at those times. But once interest groups or reporters get wind of the practice, they should pay extra-special attention to an agency’s Friday and holiday announcements. And if the level of public attention is no less intense on those days, facilitated by a now 24-hour news cycle, then it will no longer be a best response for the agency to announce controversial policies at such times. The conventional wisdom describes a set of strategies that is off the equilibrium path.

A related reason the conventional account falters is that administrative agencies in the United States are some of the most extensively monitored government actors in the world, in large part because of legal constraints imposed on agencies by statutes like the Administrative Procedure Act. Almost all policy decisions an agency makes must be published in the Federal Register for all to see. Even informal policies that are not legally binding typically are publicly available. More specifically, most legally binding agency rules require notice and an opportunity for public comment by any affected interests—comments to which the agency must adequately respond. A Notice of Proposed Rulemaking (NPRM) is typically open for at least sixty days so that comments can be taken.  A final rule generally does not go into effect for at least thirty days to allow for notice and legal challenges to take place prior to implementation; major rules, in particular, cannot take effect for at least sixty days. With some notable exceptions, final policy decisions by federal agencies in the United States are stunningly visible, even if the internal decisionmaking process of agencies is not entirely transparent. The idea of agencies hiding controversial policy actions by announcing them on Friday afternoons and running for the door is about as silly as Gulliver hiding among the Lilliputians by covering his eyes. The actions may not produce leading newspaper headlines by the time Monday rolls around, but that does not mean there is no one watching.

In addition to these conceptual concerns with the conventional account, an empirical analysis of actual agency rulemaking actions over twenty-five years reveals mixed evidence of timing manipulation by agencies. Although important agency rulemaking decisions are slightly more likely to be issued on Fridays or weekends, this form of strategic timing manipulation is not correlated with political or institutional conditions commonly thought to drive agency desires to reduce the visibility of decisions. The manipulation of timing may be less tied to days of the week than times of the year, however. Rules producing an impact on state government, for example, appear more likely to be issued during a congressional recess than during other periods. In short, the empirical analysis suggests a more complex approach than that advanced by the conventional account.

The constructive part of our Article is to develop a more nuanced or complex approach. The average agency is monitored by a diverse mix of public actors and private interest groups. The Article’s theoretical innovation is to emphasize the relationship between timing, monitoring costs, and selective participation by interest groups in the agency policymaking process. Instead of using timing to hide decisions, we argue that agencies can make strategic timing decisions to affect the monitoring costs of Congress, the White House, interest groups, the media, and the general public. Again, this does not, as is commonly asserted, block the visibility of agency actions. Rather, it drives a shift in the population of potential monitors for any given agency action. Some of this monitoring is formal. The White House, for example, reviews agency rules and significant guidance documents before they are issued. Congress creates and funds agencies, prescribes specific responsibilities, and often supervises work using information requests, committee hearings, and other oversight tools. Courts review the procedure and substance of agency actions relying on an extensive body of statutory and doctrinal tools. Less formally, interest groups and members of the public often track agency actions and may petition other political actors as well as the agencies themselves to shift regulatory outcomes. The media brings agency deeds and misdeeds to light too.

Each potential monitor naturally has preferences about the substance of agency policy, usually preferring that an agency’s final decisions be as close to its preferences as possible. Monitoring the bureaucracy, however, is not costless. Interest groups monitoring agency action must balance the benefits of monitoring agency behavior with its costs. As a result, it is generally only groups with something at stake that are willing to bear the costs of monitoring. Suppose that each of these interest groups has a different expected benefit from monitoring agency decisions, perhaps because they have different concerns or because they have different abilities to respond to decisions. If so there will always be some group for whom the existing marginal cost of monitoring is near equal to the marginal return from monitoring. Any factor that increases the costs of participation will make the expected returns from monitoring negative. These interest groups, for whom it was just barely worth participating given the existing costs and benefits, will cease monitoring when monitoring costs increase.

When monitoring costs increase, the groups with the most at stake will continue to monitor because the marginal cost is still much less than the marginal benefit. The composition of interest groups monitoring agency decisions is now different, however. Because the remaining groups have preferences, in aggregate, different from the exiting group, the response to agency action taken on a low-visibility day may be different than the response the agency would have received had the policy been announced on a high-visibility day. It is not that no one is paying attention or that the agency has succeeded in hiding its actions. Rather, the composition of actors who are paying attention has changed. Given that the agency itself decided when to announce its decision, it stands to good reason that the new group of monitoring interest groups will produce a public reaction more in keeping with the agency’s underlying preferences.

Importantly, monitoring costs are a partial function of the timing of agency decisions. In many cases, timing will be a trivial share of overall monitoring costs, and for some interest groups the change in cost structure will be unimportant; that is, it will result in no observable behavioral change. However, so long as there is some actor who was just willing to pay the monitoring costs before an increase, there will be some actor who will cease to do so when monitoring costs increase at all.  The conventional account suggests that policies announced on a Friday afternoon are forever lost in the news cycle. It is as though these policies are subsequently implemented behind closed doors, forever locked away. More plausible is simply to say that announcing policies on Christmas Eve or when Congress is out of session forces monitors to exert more effort to observe the policy decision. It requires business associations or nonprofits to pay someone to be on call or in the office. Moreover, and likely more importantly, it also increases the costs of publicizing the objectionable action and mobilizing a political response. Almost no monitor is able to simply stop the agency from moving forward alone. Changing the policy requires notifying and organizing other actors in the political process. Simplistically, but accurately, the costs of doing so increase after hours, on weekends, when Congress is out of session, or on major holidays. Put in the colloquial language of the political science, the timing of agency action affects the costs of both police patrols and fire alarms.

The effectiveness of this strategy, however, will vary depending on the type of underlying action. Existing procedural restrictions in the law ensure that this strategy may be exceptional rather than typical. The strategy may work sometimes for final rules, but it should work much more effectively for a subset of less prominent agency actions. Where delay, transparency, and judicial scrutiny are not built into the administrative process, the prospect of strategically manipulating the timing of decisions is more sensible.

The promulgation of final rules, for example, is typically associated with a delay before implementation and an extensive set of possible grounds for challenging the decision in court. The delay rule facilitates monitoring and makes strategic timing a more difficult strategy to use effectively. Part of what makes the conventional timing story less than wholly compelling for final rules is that such rules are usually proposed, considered for many months with extensive public comments, announced, and then implemented only after affected parties have considered whether to challenge the decision in court. Both NPRMs and Notices of Inquiries—typically mandatory before issuing new policy—are explicitly designed to generate public attention and allow for interested parties to participate in the regulatory process. Such decisions are “running public performances”: they are on display for all to see, and while they often do not last forever, there is no meaningful sense in which the performance can be hidden from view.

For the subset of once-in-time decisions, however, timing could play a much greater role. Withdrawals of previously proposed rules or the abandonment of existing agency process, for example, occur without prior notice and comment or an ex post lag. For reasons we discuss at some length, it can be more difficult to challenge such withdrawals in court. Immediate scrutiny and a nonjudicial political reaction will be more important. The empirical analysis of twenty-five years of rulemaking actions suggests that the manipulation of timing is more common for the withdrawal of proposed rules than for NPRMs or final rules. Especially after shifts in administration, many of the most controversial agency decisions will be whether to implement or withdraw rules started by prior administrations.

If our critique and reformulation of the timing of agency action is persuasive, more attention should be paid to rulemaking withdrawals as a class of administrative actions. At present, the abandonment of proposed rulemakings is largely an absentee category in administrative law. Courts tend to treat withdrawals differently than other forms of agency decisions, though explicit discussion of such agency action is sparse. There is consensus that courts can review them if specific statutory schemes explicitly contemplate the abandonment of proposed action or if the agency faces a mandatory duty to regulate. Conflict currently exists, however, among courts as to whether review of other (typically discretionary) withdrawals is permissible. Although there are good reasons for distinguishing withdrawals of unfinished rulemakings from the enactment of new rules and the rescission of old rules, the differential treatment in the law makes timing more important for withdrawals than for other agency decisions. Given the spike in rulemaking withdrawals after a presidential transition (typically the abandonment of rulemakings that were started but not completed under the previous administration), rule withdrawals should occupy a more central role in administrative law scholarship. Yet, because withdrawals combine features of both agency inaction and agency policymaking, balancing the competing doctrinal imperatives to protect agency discretion and to keep agencies accountable presents serious challenges for administrative law.

* * *

Politicians and journalists may like to swap anecdotes and innuendo of administrative agencies using timing to avoid public scrutiny. Much of this anecdotal behavior, if systemic, would seem perplexing, as a theoretical matter—off the so-called equilibrium path—and insensitive to the reality of regulatory politics. We have tried to bring both conceptual clarity and empirical rigor to these stories. Our view is not that timing is unimportant, but that timing influences regulatory politics in a somewhat different way than common intuition suggests. Timing decisions are best understood as strategic decisions by agencies that can make it more difficult, other factors being equal, for watchers to interfere with their policy implementation. The timing of action makes effective monitoring of agency action more costly, which in turn should change the universe of interests participating in agency process. While agencies may prefer to reduce the visibility of their actions, for most actions, strategic timing of their issuance does not prevent visibility, but instead simply increases the difficulty of generating political opposition in Congress.

Our empirical study also shows a more complex picture of agency timing decisions. Although significant rules are more likely to be announced on Fridays and during congressional recesses, other political or institutional variables that one might expect to be associated with the timing of such announcements are not. Political conditions seem to matter more for rule withdrawals, a subset of agency actions less subject to ex ante viewing or ex post challenge. Because rule withdrawals are more difficult to challenge in court, rule withdrawal is one of the few types of agency policies for which announcing in a lower visibility environment does in fact raise monitoring costs substantially.

Our aspiration is that our conceptual, empirical, and doctrinal work provides an analytic framework for courts and commentators to pursue renewed work on questions of timing in the administrative state. In addition, our analysis of timing reveals the importance of the abandonment of rulemaking proceedings. There is administrative law doctrine on such withdrawals, but it is underdeveloped. While we have sketched some preliminaries on this front, there is much work to be done. And that work is particularly relevant now as control of the White House has recently shifted and critical regulatory decisions are thus likely to be made in the withdrawals domain.


Copyright © 2010 University of Chicago Law Review.

Jacob E. Gersen is a Professor of Law at the University of Chicago Law School.

Anne Joseph O’Connell is a Professor of Law at the University of California, Berkeley School of Law.

This Legal Workshop article is based on Jacob E. Gersen and Anne Joseph O’Connell, Hiding in Plain Sight? Timing and Transparency in the Administrative State, 76 U Chi L Rev 1157 (2009).

Very useful comments were provided by Ken Bamberger, Eric Biber, Tino Cuellar, Dan Farber, Jesse Shapiro, Matthew Stephenson, Adrian Vermeule, and John Yoo. Financial support has been provided by the Hellman Family Faculty Fund, the Boalt Hall Fund, the University of California, Berkeley, Committee on Research, and the Jerome Kutak Fund at The University of Chicago Law School. Thanks to Tess Hand-Bender, Roman Giverts, Monica Groat, Edna Lewis, Harry Moren, Stacey Nathan, and John Yow for research assistance.

  1. Stephen Engelberg, The Bad News Hour: 4 P.M. Friday, NY Times A20 (Apr 6, 1984).
  2. Cindy Skrzycki, New Rules Delivered Just in Time for Holidays, Wash Post D1 (Jan 9, 2007).

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