You’ve heard plenty from this quarter on broken disclosure and transparency in the Biden administration, which eliminated the “Deregulatory” designation for rules implanted by Trump and ditched Trump’s “rules for guidance” and the portals for disclosing guidance (but not before I tallied over 107,000 of them).
There are no indications we’ll be seeing the mandatory White House Report to Congress on the costs of regulations anytime soon, especially in the wake of a recent confirmation hearing for a regulatory oversight czar. I hope to be wrong on that.
What I did not expect is a breakdown in reporting on the number of rules in the Federal Register, the most basic metric of all.
If you click on the Federal Register online database now, it will tell you there were 3,257 rules in 2021. Here’s a screenshot for posterity, since rule, proposed rule, and significant rule counts have inexplicably wobbled in the database over the years, but only by a of couple percentage points or so, until now.
Every year, as I begin to compile the Ten Thousand Commandments report, the December 31 numbers on Register pages and rule tallies from the online searchable database are preliminary. There are always slight adjustments with the Government Printing Office for the landing of documents that eventually get reflected in an annual Federal Register Statistics white paper publication that I regard as “definitive,” since it includes historical data on rules, page counts, and the Code of Federal Regulations.
While the aggregated online charts are about as obscure as any federal government publication can get, their rule tallies make their way to the online database early each year, though, as noted, counts still fluctuate slightly.
But this year is different. Tomorrow November 2022 begins. The online database still reflects 3,267 rules for 2021, compared to 3,353 rules for Trump’s final full year of 2020 (the first rules of 2021 were Trump’s). Things have a way of vanishing these days, so I thought it worthwhile to make a screenshot of 2020 as well.
[[Insert Figure 2, Trump 2020 rule count ]]
That’s where things stand as far as most folks know. Biden issued fewer rules than Trump did. That would seem counterintuitive, although not inexplicable; it takes time to issue new rules. Still Biden’s “whole-of-government” agenda would inevitably make one wonder where all the rules are.
It turns out they are on the newer white-paper compilation charts. While the online database shows 3,257 rules, the document count in the newer roundup is 4,429, a 45.8 percent increase.
As for that just-noted Trump count of 3,353 that remains visible via the online search and in the screenshot above, the new combined charts show Trump’s tally to actually be “only” 3,038, which would be the second-lowest count in the Federal Register’s history. The last time Biden’s 4,429 was exceeded was back in 1999. Here’s a chart showing this apparent Biden surge.
Note that the “significant” counts in yellow do not come from the pdf roundup, but from the online database. These newer disclosures also make it appear that more “midnight rules” may have been ascribed to Trump than should have been, though a portion of those were deemed deregulatory rather than regulatory.
Assuming the rule counts do not perform some new reversal, things are beginning to come into focus. It would not seem conceivable that we would experience legislative surges like that seen during the early phase of the pandemic (like the CARES Act and the Families First Coronavirus Act) and not witness that reflected in subsequent rulemaking. If the spending state surges by a large amount, so too must the regulatory state, whether disclosed or not.
The implications of all this are that the spending and intervention embodied in Biden’s American Rescue Plan “infrastructure,” “innovation,” and “inflation” mega-bills will translate into greater rule counts in the coming months and years. If the federal government expands by a large percentage, more rules and sub-regulatory guidance documents and other regulatory dark matter are imminent.
As of today, 2,580 rules appear in the Federal Register database for 2022, but since the rule count disclosed for 2021 appears to have been exceeded by over 1,000, the 2022 tally may be understated at this point as well. Time can tell; I’m not confident enough to say that it will for sure.