Rulemakers’ Professional Experience and Rulemaking Efficiency in U.S. Federal Agencies

• Published date: 01 May 2024
• DOI: http://doi.org/10.1177/1532673X241236197
• Author: Huchen Liu
• Date: 01 May 2024

Article

American Politics Research

2024, Vol. 52(3) 320–337

© The Author(s) 2024

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DOI: 10.1177/1532673X241236197

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Rulemakers’Professional Experience and

Rulemaking Eff‌iciency in U.S. Federal

Agencies

Huchen Liu

1



Abstract

I explore the potential impact of rulemakers’professional experience on the eff‌iciency of rulemaking by U.S. federal agencie s. I

highlight two types of professional experience rulemakers may have—inside experience gathered by working in the federal

government, if not the same agency, and outside experience gained before entering the civil service or between stints in

government. I discuss several plausible mechanisms through which inside and outside experience may affect rulemaking ef-

f‌iciency. Using data combining rulemakers’career backgrounds with rulemaking life-cycles from 1999 to 2023, I show that

outside experience, and not inside experience, is associated with two measures of rulemaking eff‌iciency: a higher likelihood for

proposed rules to be promulgated as f‌inal and a lower likelihood of unanticipated events—extensions of public comment

periods, other delays to the rulemaking timetable, and the withdrawal of rules already issued.

Keywords

rulemaking, federal agencies, bureaucratic eff‌iciency, government off‌icials’professional backgrounds

Does the professional experience of bureaucrats affect the

eff‌iciency of federal agency rulemaking? If experienced

workers create superior products, on-the-job training should

enable seasoned bureaucrats to craft higher-quality rules.

1

Higher-quality rules, then, are more likely to withstand the

challenges in the rulemaking process and become enacted

regulatory policy. It is plausible to expect experienced

rulemakers to convert a greater share of the rulemakings they

lead into promulgated f‌inal rules than their less experienced

colleagues.

Why should rulemakers’job experience have this effect?

Considering the notice-and-comment rulemaking process

shows that two sets of factors—structural and political—

affect whether rulemakings reach f‌inalization and how

quickly. Structural factors include intra-agency regulatory

analysis, review of proposed and f‌inal rules by the Off‌ice of

Information and Regulatory Affairs (OIRA), and the col-

lection and consideration of public comments. Political

factors relate to the inf‌luence wielded by the political prin-

cipals (e.g., McGrath, 2013;Moe, 1985;Ritchie, 2018),

agency executives (Potter, 2017,2019), and organized in-

terests (e.g., Golden, 1998). These inf‌luences on rulemaking

outcomes suggest what makes rulemakers’experience

valuable: the policy, procedural, and political knowledge,

which comes with prolonged exposure on the job, that en-

ables rulemakers to overcome hurdles presented by the

rulemaking process.

As these types of knowledge usually do not exist in mutual

isolation, it is diff‌icult to unpack them and measure their

separate inf‌luence on rulemaking outcomes. But a readily

measurable typology of professional experience—experience

inside and outside the civil service—offers a promising

empirical strategy. Inside experience and outside experience

create different combinations of knowledge while sharing

some commonalities. In brief, inside experience uniquely

gives rulemakers detailed procedural knowledge and outside

experience creates more direct knowledge of organized in-

terests’policy preferences, while both provide policy

knowledge. More experience is not always better, however: a

long civil service career, in particular, may lead to decreased

motivation for career advancement and, through its moti-

vational effect, decrease rulemakers’eff‌iciency (Daley, 1987;

Pearce & Perry, 1983). These expectations, to be detailed

later, highlight inside and outside experience as meaningful

predictors of rulemaking outcomes.

1

Department of Political Science, University of Nebraska Omaha, Omaha,

NE, USA

Corresponding Author:

Huchen Liu, Department of Political Science, University of Nebraska Omaha,

6001 Dodge St, ASH 275, Omaha, NE 68182-0002, USA.

Email: huchenliu@unomaha.edu

I analyze the relation between rulemakers’inside expe-

rience and outside experience based on data combining

rulemakers’career backgrounds and rulemaking life-cycles

from 1999 to 2023. This analysis focuses on two key rule-

making outcomes essential to eff‌iciency: the proportion of

proposed rules that become promulgated as f‌inal rules and the

occurrence of three types of unanticipated events—

extensions of the public comment period, other delays to

the rulemaking timetable, and the withdrawal of rules already

issued. These outcomes of interest differ from the main

measure of eff‌iciency in existing studies—the amount of time

it takes for rulemakings to cross the f‌inish line (e.g., McGarity

1991;Pierce, 1995;Yackee & Yackee, 2010)—but capture

the amount of agency effort that comes to fruition.

My analysis shows that rulemakers’outside experience,

and not their inside experience, is associated with a higher

likelihood for proposed rules to reach f‌inalization and a lower

likelihood for unanticipated events to occur. On average,

rulemakers with no outside experience are predicted to have a

bit over 70% of their proposed rules reach f‌inalization. In

comparison, rulemakers with the maximum observed outside

experience see 80%–90% of their proposed rules f‌inalized.

This difference in outside experience also corresponds to a

decrease in the likelihood of unanticipated events from

around 10% to under 5%. Inside experience, however, is

associated with no such boosts to rulemaking eff‌iciency.

Because these apparent effects on eff‌iciency may be ex-

plained by the deliberate selection of rulemakers into rule-

makings on account of innate diff‌iculty, I conduct exact

matching to select rulemakings that are identical on several

observable characteristics and then perform post-matching

analysis. Still inconclusive for causal inference, matching

nonetheless mitigates selection bias owing to observable

factors. Matching corroborates the main f‌indings based on the

full sample.

Though non-causal, the inference drawn from the data

suggests that rulemakers’professional background inside and

outside government may impact regulatory policymaking.

Furthermore, any boost that outside experience does bring to

rulemaking eff‌iciency, which remains a question needing an

answer, suggests that policy professionals with career mo-

bility function as vessels of expertise that help connect state

and society and lubricate the administrative state. This in-

forms hiring priorities for the civil service by encouraging

agencies to look further af‌ield to recruit rulemakers from

industry, advocacy groups, and state governments.

Structural Explanations of

Rulemaking Eff‌iciency

Structural explanations focus on the procedural requirements

imposed on the rulemaking process. Outlining the informal

rulemaking process underscores its checkpoints: an agency

f‌irst drafts a proposed rule, followed by a possible review by

the Off‌ice of Information and Regulatory Affairs (OIRA)

within the Off‌ice of Management and Budget. After passing

OIRA review, the agency publishes the proposed rule in the

Federal Register and gives the public an opportunity to

submit comments. After the public comment period, the

agency considers the comments received, drafts a f‌inal rule,

and publishes it in the FR. Another OIRA review may follow.

The operating eff‌iciency of each link in the rulemaking

process matters for its overall eff‌iciency. To start with,

agencies perform cost-benef‌it analysis of major rulemakings,

consider alternative proposed rules, and then submit the

chosen one to the OMB for further review pursuant to Ex-

ecutive Order 12291 (Pierce, 1995). The intra-agency pro-

cesses that agencies use for these activities, like internal

advisory committees, affect rulemaking eff‌iciency (McGarity

1991). Political principals continually layer new requirements

on top of old ones to control agencies, adding more proce-

dural requirements over time (Potter, 2017). In a fairly recent

instance, President Barack Obama requires agencies to

quantify anticipated benef‌its and costs of proposed rule-

makings as accurately as possible in Executive Order 13563.

Having survived intra-agency review, proposed rules then

come under the scrutiny of OIRA and the interested public.

The time-consuming nature of these processes leads to the

“ossif‌ication thesis,”the assertion that procedural constraints

prevent agencies from making desirable regulations in a

timely manner (McGarity 1991). Whether or not modern

rulemaking is appropriately labeled as ossif‌ied (Yackee and

Yackee (2010) are skeptical of this characterization), the

torturous process of rulemaking favors those experienced in

navigating it. If rulemakers’familiarity with the rulemaking

process grows over time with their exposure to it, then the

inherent procedural diff‌iculty of rulemaking should reward

seasoned bureaucrats with higher rulemaking eff‌iciency: less

of their efforts will be wasted running into the thorns of

procedure.

Measures of Rulemaking Eff‌iciency

This reasoning leads to the critical question of what eff‌iciency

is and how to measure it. Structural research of rulemaking

eff‌iciency has mostly focused on one facet of it: speed

(McGarity 1991;Pierce, 1995;Yackee & Yackee, 2010). It

has paid much less attention, however, to another critical

component of eff‌iciency—how many proposed rules are

successfully promulgated as f‌inal rules, however long the

whole process may take. The eventual conversion of a

proposed rule into a f‌inal rule should not be taken for granted.

As Dwidar (2022) notes, agencies may drop proposed rules at

their discretion during the years-long rulemaking process.

The f‌inalization rate of proposed rules is a direct measure of

how much agency effort pays off in the form of enacted

regulatory policy. As such, it warrants examination as a

measure of eff‌iciency along with the amount of time suc-

cessful rulemaking ends up consuming.

2

From the same

Liu 321