Midnight Regulations

What are midnight regulations?

Over most of the course a presidential term, the regulatory agencies of the executive branch finalize rules (which can include making new regulations or modifying or eliminating existing regulations) at a fairly steady pace. However, the “lame duck” period between the presidential election in November and inauguration in January commonly often produces a major spike in the number of rulemakings being pushed through the regulatory process. Rules made in this period have been dubbed “midnight regulations” because they are passed in a hurry by outgoing presidents before the “clock strikes twelve” and they turn back into ordinary citizens. Often, outgoing presidents use the lack of accountability in the lee of an election to push through controversial rules they wouldn’t want to defend during an election. They use this period to secure their influence and legacy into the future.

Research by Mercatus scholars into this phenomenon has uncovered a number of insights into the consequences of midnight regulations. This research generally indicates that these surges in regulation tend to overpower the existing regulatory review process and lead to a larger number of presumably lower quality rulemakings being finalized at a much more rapid pace than the rest of the term. The Regulatory Studies Center at George Washington University is also quite notable for its research on this topic.

Check the visualizations, working papers, and policy briefs collected on this page to explore our analyses of midnight regulations.

Visualizations:

 

Journal Articles and Working Papers:

+ The Consequences of Midnight Regulations and Other Surges in Regulatory Activity

BY: Patrick A. McLaughlin
DATE: March 10, 2011

ABSTRACT: “Is the midnight regulations phenomenon real and what are its consequences? This paper finds that when an administration’s time is almost up, submissions of economicallysignificant regulations nearly double. Such surges in regulatory activity decrease the dura-tion of regulatory review at the Office of Information and Regulatory Affairs (OIRA), likelybecause of political pressure to quickly approve new rules. Specifically, one additional eco-nomically significant regulation submitted to OIRA decreases the mean review time for allregulations by about two thirds of a day. If OIRA review improves regulation quality, thenregulatory surges that decrease review time could hinder such improvement."

+ Empirical Tests for Midnight Regulations and Their Effect on OIRA Review Time

BY: Patrick A. McLaughlin
DATE: September, 2008

ABSTRACT: “The midnight regulations phenomenon—an increase in the rate of regulation promulgation during the final months of an outgoing president’s term—is empirically tested using OIRA data on the number of economically significant regulations reviewed each month. Submissions of economically significant regulations to OIRA are found to increase by about 7 percent during midnight periods. Spikes in regulatory activity, such as those of midnight periods, are shown to decrease the average amount of time regulations are under review at OIRA, perhaps because of budget and staff limitations at OIRA. Evaluated at the mean, one additional economically significant regulation submitted to OIRA decreases the mean review time for all regulations by about half a day. If OIRA review improves the quality of regulations, then any phenomenon such as midnight regulations that leads to spikes in regulatory activity that decreases in average review time could result in the occasional proliferation of low-quality regulations."

+ Midnight Regulations and Regulatory Review

BY: Jerry Brito, and Veronique de Rugy
DATE: September, 2008

Summary: “The midnight regulation phenomenon is a well-documented one. The reasons behind it range from the desire of the outgoing administration to extend its influence into the future as well as the opportunity to impose costs on the incoming administration. In fact, the high political costs faced by a new administration to overturn those last minute rules makes it an effective strategy for the outgoing administration to project its influence beyond its term. This paper outlines some solutions to this problem and offers a new idea on how to deal with it."

+ Regulating in the Dark: Examining Bush Midnight Regulations

BY: Sherzod Abdukadirov
DATE: November 8, 2012

ABSTRACT: “This paper examines whether political motivation plays a role in the timing of some midnight regulations. It further examines whether political motivation has a negative impact on the analytical quality of midnight regulations. In contrast to other studies that focus on the overall regulatory activity using proxies, this paper concentrates on a detailed analysis of three regulations issued in the final days of the Bush administration."

+ Continuity, change, and priorities: The quality and use of regulatory analysis across US administrations

BY: Jerry Ellig, Patrick A. McLaughlin, and John F. Morrall III
DATE: August 13, 2012

ABSTRACT: “This paper compares the quality and use of regulatory analysis accompanying economically significant regulations proposed by US executive branch agencies in 2008, 2009, and 2010. We find that the quality of regulatory analysis is generally low, but varies widely. Budget regulations, which define how the federal government will spend money or collect revenues, have much lower‐quality analysis than other regulations. The Bush administration's “midnight” regulations finalized between Election Day and Inauguration Day, along with other regulations left for the Obama administration to finalize, tended to have lower‐quality analysis. Most differences between the Bush and Obama administrations depend on agencies' policy preferences. More conservative agencies tended to produce better analysis in the Obama administration, and more liberal agencies tended to do so in the Bush administration. This suggests that agencies more central to an administration's policy priorities do not have to produce as good an analysis to get their regulations promulgated."

+ Does Haste Make Waste in Regulatory Analysis?

BY: Patrick A. McLaughlin, Jerry Ellig
DATE: July 13, 2010

ABSTRACT: “Most federal agencies must conduct economic analysis when proposing major regulations. This paper uses a new data set scoring the quality of analysis accompanying proposed regulations in 2008 to assess whether some types of regulations receive more thorough analysis than others. Previous scholarship speculates that “midnight regulations” receive less thorough consideration, and the Office of Management and Budget asserts that agencies rarely estimate benefits and costs of “transfer” regulations that describe how agencies will spend or collect money. Our tests find that “midnight” regulations proposed after June 1, 2008, and “transfer” regulations both have significantly lower-quality analysis."

 

Policy Briefs:

+ A Solution to the Midnight Regulation Outburst

BY: Jerry Brito, Veronique de Rugy
DATE: November, 2008

Summary: “At the end of each administration-and especially between administrations of opposite parties-there is a dramatic spike in regulatory activity. This "midnight regu­lation" phenomenon is well documented. Its causes include the desire of the outgoing administra­tion to extend its influence into the future as well as the opportunity to impose costs on the incoming administra­tion. In fact, the high political costs a new administration faces in order to overturn last-minute rules makes it an effective strategy for the outgoing administration to project its influence beyond its term."

+ For Whom the Bell Tolls: The Midnight Regulation Phenomenon

BY: Jerry Brito, Veronique de Rugy
DATE: December, 2008

Summary: “This Policy Primer discusses the problems associated with midnight regulations, examines a number of previously tried solutions, and finally suggests that the best way to address this issue is to cap the number of economically significant regulations that can be reviewed during a given period."

+ Beware the Surge: "Midnight Regulations"

BY: Sherzod Abdukadirov
DATE: June 25, 2012

“Below is a brief summary of the study series. To read the studies in their entirety and learn more about the authors, please follow the appropriate links. For more information—including a regularly updated list of this year’s potential midnight regulations—please visit the Mercatus Center’s Midnight Regulations page."

+ Midnight Regulation: Decisions in the Dark?

BY: Jerry Ellig
DATE: August 28, 2012

Summary: “New research from Mercatus Center scholars reveals that rushed midnight regulations proposed during the second half of a presidential election year have lower-quality regulatory analysis, and agencies are less likely to use the analysis to make decisions about the regulation. These regulations are more likely to be ineffective or excessively costly."