Midnight Regulations: An Update

Midnight Regulations: An Update

Summary

In 2001, former Mercatus Center scholar Jay Cochran examined the number of pages in the Federal Register, as a proxy for regulatory activity.  He found that when the occupation of the White House switches to the party formerly out of power, the volume of regulation in the outgoing administration's final quarter-year averaged 17 percent higher than the volume of rules issued during the same period in non-election years. This working paper takes a second look at the existence of the midnight regulation phenomenon by improving on Cochran's original work.

Our Results

  1. The paper confirms a positive relationship between the midnight period--the three months between Election Day and Inauguration Day--and regulatory output.
  2. The paper also shows that the legislature is a significant contributor to the existence of midnight regulations. In other words, the more days Congress is in session the month before the start of the midnight period, the more regulations will be promulgated.
  3. The data shows a positive relationship between the rate of cabinet turnover and regulatory output. The higher the rate of the executive branch turnover--for example, when the entire cabinet is about to be replaced because the incumbent president has lost reelection--the more regulations will be issued during the midnight period. As the rate of the executive branch turnover diminishes, such as following a successful re-election, fewer regulations will be issued.

By the Numbers

  1. The Carter administration printed 24,531 pages in the Federal Register during the midnight period.
  2. During its last three months in office, the Clinton administration published more than 26,542 pages in the Federal Register. According to Susan Dudley, the regulatory activity in Clinton's post-election quarter represented a 51 percent increase over the average number of pages published during the same quarter of the previous three years of Clinton's second term.
  3. Under normal circumstances, the number of pages added to the Federal Register during the course of a year is added at a constant rate--it is spread equally throughout the year. In other words, 25 percent of the pages added to the Federal Register during a calendar year will be added each quarter. However, this paper explains, for quarters in which a presidential election occurred, the number of pages added exceed the 25 percent baseline 13 out of 15 times.
  4. During the midnight period, the number of pages in the Federal Register increases by 17 percent over the rest of the year.

Recommendations

The paper shows that, going back to 1948, when the White House switches parties, the number of pages in the Federal Register increases on average by 17 percent in the three months following an election. To be sure, some of the regulatory issues during the midnight period have nothing to do with presidents trying to rush through last-minute regulations that they couldn't, or wouldn't, push during the first part of the year. However, the systematic outburst during the midnight period suggests a consistent effort on the part of each administration to hurry regulation through before they leave office. Accordingly:

  1. It is recommended that some research be done to actually measure the impact of this regulatory outburst.
  2. It is also recommended that proper oversight apply to the midnight regulation period. That can be done in two ways: either the number of people in charge of performing the oversight of these regulations be increased during the midnight period to guarantee that each regulation gets a proper amount of oversight or the staff stays the same but the number of regulations allowed to go through during the midnight period is capped.
' '