Ah, the hazards facing the new president: A hostile press. A suspicious public. An evenly divided Senate. Carpal tunnel syndrome.
Conservatives are hoping George W. Bush develops a touch of the repetitive motion disorder that causes pain in the wrists of data-entry clerks and other workers who perform the same tasks over and over again. For Mr. Bush, the culprit would be signing his name hundreds of times in an effort to undo an avalanche of regulations and executive orders unleashed in President Clinton's final days in the Oval Office.
Not to worry, though. If symptoms develop, Mr. Bush is entitled to 90 days' leave with full benefits-compliments of the outgoing administration. Thanks to sweeping new "ergonomic standards" implemented just four days before the Bush inaugural, employers are now required to "fit the job to the worker," ensuring, for instance, that typists have wrist pads, adjustable-height chairs, and good lumbar support. Uncomfortable workers get government-mandated relief, and uncooperative corporations get fines up to $70,000 per occurrence.
Mr. Clinton might want to make sure his successor gets a pen with a padded grip, just to be on the safe side.
The ergonomic regulations are hardly unique. In the waning weeks of the Clinton administration, agencies from OSHA to the EPA to the National Forest Service shifted into overdrive, churning out an estimated 30,000 pages of new regulations in 90 days. With industry groups estimating that the ergonomic regulations alone will cost $40 billion a year or more, the end of the Clinton era could go down as the most expensive 90 days in history.
"Many regulations are simply invisible forms of taxation," said Ed Hudgins, director of regulatory affairs at the Cato Institute, a libertarian think tank in Washington. "When the government takes money directly out of your pocket, at least you know what's happening, and you can oppose it politically or take steps to lower your taxes. But regulatory costs are invisible."
H. Sterling Burnett of the National Center for Policy Analysis agreed: "Regulations cost the economy more than $700 billion a year. That's more than we spend on any budget item, other than Medicare, Social Security, and defense.... It works out to $7,000 per household. That's the extra price of goods and services that every household pays without even knowing it. Your car is more expensive because of government regulations. Your air conditioner is more expensive. Your doctor's bill is more expensive. People should ask themselves what they could do with an extra $7,000 a year."
To many critics, the implementation process for the new regulations was almost as obscene as their cost. Rules that had been subjected to years of careful study and debate were suddenly rammed through the regulatory machinery. Ergonomic standards, for instance, had been in development for nearly a decade when Clinton appointees at OSHA rushed them through the final stages of the regulatory process, just before the changing of the guard in Washington. Several business groups have already filed suit in federal court, charging that OSHA overstepped its statutory bounds by mandating compensation levels well above those for other types of workers' comp claims.
It's hardly novel for outgoing presidents to step up their activity before turning out the lights. On Jimmy Carter's last day in office, the Federal Register, a daily compendium of new rules from executive agencies, was three times its normal size, thanks to a rash of last-minute regulations on everything from strip-mining to Brussels sprouts. With lame-duck regulators working literally around-the-clock, the Carter administration's legacy earned a nickname among exasperated Republicans: midnight regulations.
But Mr. Carter's longstanding record is about to be broken. "While the rush to finalize a spate of new regulations is a tradition whenever an administration transitions out, as with so many other things, [the Clinton] administration has far surpassed the wasteful activities of its predecessors," noted Citizens Against Government Waste, a taxpayer watchdog group. The proof is in the numbers: Even Mr. Carter managed only 24,531 pages of last-minute rules.
All of which means that Mr. Bush, besides having to thread the congressional needle with his own agenda, also faces the daunting task of undoing Mr. Clinton's last-minute regulatory knot.
Take the Department of Labor, for instance. The new labor secretary, likely to be a foe of quotas and other group-based preferences, will inherit a month-old affirmative action rule championed by his predecessor, Alexis Herman. Under the new rule, any company doing business with the government must file an affirmative action plan with the Labor Department's Office of Federal Contract Compliance Programs (OFCCP). Among the paperwork required: data on the sex, race, and ethnicity of every job applicant, plus statistics on minorities' compensation, promotions, and tenure. Companies whose affirmative action plans are deemed insufficient would lose their government contracts-a crippling blow to many mom-and-pop businesses that depend on their government work to remain profitable.
Meanwhile, at the Environmental Protection Agency, Democratic appointees worked feverishly to advance at least 67 different regulations before being displaced by a more conservative crew. Among their goals: reduced levels of arsenic in drinking water, a 90 percent reduction in air pollution by diesel-powered trucks, and control over mercury emissions at electrical power plants.
And then there's the pressing matter of increasing the salmon population. Under the guise of the Endangered Species Act, the Clinton EPA has added some two dozen subspecies of Pacific Northwest salmon to the "endangered" list, affording them the protection of the federal government-even though hundreds of millions of salmon are raised in hatcheries and released into the oceans each year. (To Clinton regulators, only salmon born in the wild are "real" salmon.)
The effects of that classification are felt far beyond the fishing industry. In Snohomish County, Wash., almost $9 million worth of needed bridge repairs could not be completed because environmentalists feared the work might hurt the salmon population. And in nearby Franklin County, $2.4 million in road improvements are on hold over concern for salmon in the Columbia River-even though the road in question is 10 miles away.
Now, thanks to a November ruling by the EPA, such draconian measures may reach the East Coast for the first time. Regulators have decided that Atlantic salmon in Maine are an endangered species, and the fallout will likely be felt throughout New England well into the Bush administration.
Over at the Department of the Interior, incoming Secretary Gale Norton will have ample opportunity to establish her pro-business credentials, as well. Her predecessor, Bruce Babbitt, recently boasted that he was "proud that the administration, through regulations, has accomplished many of the goals blocked by Congress, something that enraged Republicans.... Here we are, having achieved 80 percent of what was sought in legislation, by administrative rule."
In November, for example, the Clinton administration hurriedly finalized a rule banning new roads on nearly 60 million acres of public lands-an area larger than the state of Idaho. The rule was a huge victory for environmentalists, who hailed it as the biggest advance since Theodore Roosevelt created the national park system. Groups like the Friends of the Earth had long been pushing for "wilderness" designation for tens of millions of acres, but that would have required congressional approval. By simply banning roads, the administration achieved exactly the same result-without the bother of going through the Congress.
The president clearly viewed the roadless initiative as the cornerstone of his environmental legacy. "Sometimes, progress comes by expanding frontiers," he said at a Jan. 5 ceremony marking the new rule. "But sometimes, it's measured by preserving frontiers for our children. Today, we preserve the final frontiers of America's national forests for our children."
Nonsense, said enraged conservatives in Congress. The roadless ban simply "helps a few fat-cat environmentalists," fumed Rep. James Hansen (R-Utah), the new chairman of the House Resources Committee. By prohibiting roads through national forests, he pointed out, the government not only shut those lands to logging and mining interests, but to skiers, campers, and other recreational users, as well.
Though Republicans vowed to fight the rule, outside observers are pessimistic. "We'd like to see that one gone, but I doubt Congress would be able to do it by legislation," said Glenn Spencer, an environmental analyst at Citizens for a Sound Economy, a conservative think tank in Washington. "Bush would have to do it as another rule. He'd need to undo it the same way Clinton did it, but in reverse."
That's not easy to do, as Ronald Reagan learned in trying to reverse Mr. Carter's rash of "midnight regulations." Though he put an immediate freeze on all enforcement, Mr. Reagan found himself thwarted by the courts, which ruled that existing regulations could not be arbitrarily ignored or revoked. Instead, new regulations must be crafted to reverse the old ones. The process is lengthy and somewhat arcane: An "advance notice of proposed rule-making" (ANPRM) must be published in the Federal Register, followed by 90 days of public comment, followed by revisions and further public comment. Only then can the new rule go into effect.
Liberal regulators understand a new administration's difficulty in overturning regulations it doesn't like. "The agencies know this case law. The word is to get this stuff out the door, and once it's there, the prior administration's [policies] are fairly well locked-in," said Randel Johnson of the U.S. Chamber of Commerce. "With the ergonomics case, you have 50 pages of rules and 500 pages of explanation that all has to be unraveled and reviewed"-a contentious and time-consuming expenditure of political capital that may scare off an incoming administration.
Given the political realities, even some of Mr. Bush's most ardent supporters don't expect him to move President Clinton's regulatory mountain overnight. "It would probably be a mistake for Bush to come right in and say, 'We're going to get rid of all these regulations right now,'" according to Erick Gustafson, director of the Center for Consumer Choice at Citizens for a Sound Economy. "He should take his time and do it piecemeal to avoid inflaming labor and environmentalists and the traditional liberal base."
Besides, says Cato's Mr. Hudgins, the incoming administration can bring about major change just by changing the political paradigms that control decision-making. "A lot of problems will go away if the new Bush administration will just say, 'We're not going to see business as an enemy that must be destroyed.'"
Mr. Gustafson agrees that the vision of managers in regulatory agencies is key. "Activist judges interpret laws to reach a specific social goal they want to achieve. Regulators do the same thing. Laws and regulations are written in ways that allow for interpreters to inject their own bias and perhaps go further with the regulation than was the original intent."
As an example, he cites the Sherman Antitrust Act, which various attorneys general have been interpreting for nearly 100 years "with radically different results." The law's stated goal is to protect consumers, but that means different things to different presidents. "In the Reagan-Bush era you had strict, market-oriented economists saying the best protection for consumers is free and unfettered trade," Mr. Gustafson said.
Under President Clinton and Janet Reno, on the other hand, regulators have sought to overrule market forces by micro-managing corporate mergers. For instance, when Philip Morris, the maker of Altoids breath mints, tried to buy Nabisco, the Justice Department ordered Nabisco to sell off its own breath mint brands, for fear the combined company might dominate the so-called "intense-mint market"-a market that no one had even identified before. Under the leadership of John Ashcroft, Mr. Gustafson expects the Justice Department will once again "apply some common-sense economics" to its role as chief antitrust regulator.
There is one area in which the new president can act immediately and unilaterally, however. Regulations may be difficult to undo, but executive orders-those quasi-laws that exist in a kind of constitutional twilight zone-are easy. "Executive orders can be undone with a stroke of the pen," Bush spokesman Ari Fleischer said recently. "I want to remind everybody that it is part and parcel of any new administration's duty to review those things that they seek to maintain, change, accelerate, decelerate."
Mr. Bush will have plenty to review. Among the flood of recent executive orders is one that overturns a five-year waiting period before high officials can lobby their former agencies. By rescinding the waiting period, critics charge, Mr. Clinton has allowed his cronies to jump immediately onto the lobbying gravy train, regardless of any ethical concerns or appearance of impropriety. There are also moves to establish an international war crimes tribunal, end sanctions in Yugoslavia, and create a half-dozen new "national monuments" that would put thousands of additional acres under federal government control.
Some of Mr. Clinton's most controversial executive orders came long before his midnight run, however. Religious conservatives are hoping the new president will issue orders overturning four of Mr. Clinton's earliest actions. In 1993, on his second day in office, President Clinton signed orders that allowed widespread abortion counseling, fetal tissue research, financial support for overseas abortion providers, and testing of the abortion pill known as RU-486.
"It was so vindictive," marveled Wendy Wright, a spokesperson at Concerned Women for America. "He signed the orders literally as the March for Life was going on. It was a slap in the face to tens of thousands of people marching in support of the unborn just a few blocks away."
In a few days, the new President Bush will have a chance to slap down that ugly part of the Clinton legacy-and plenty of others, besides.