In the Midnight Hour: Administrative Rulemaking During Presidential Transitions

Consulting with stakeholders during the rulemaking process is a cornerstone of good regulatory practice. In the United States, this practice is codified in the Administrative Procedure Act’s requirement that agencies solicit comments on proposed rules. Consistent with previous research showing rules issued during the so-called “midnight period”—the time between Election Day and Inauguration Day—tend to be of lower quality, we posit that agencies are especially likely to manipulate participation requirements for midnight rules, as the outgoing administration races to finalize them prior to leaving office. To examine this possibility, we assemble a sample of close to 1,000 federal rules issued between 2000 and 2020. Preliminary analysis suggests that these rules do tend to be promulgated quicker, as measured by the time elapsed between their initial public introduction in the Federal Register and finalization, but these shorter timeframes are not achieved at the expense of offering opportunities for public participation. In fact, our preliminary findings show that for rules finalized during the midnight period, agencies do not shorten comment periods, they are not less inclined to extend those periods, and they are no less likely to hold meetings or hearings. If anything, they tend to be more apt to invite public participation on midnight rules, especially with respect to their propensity to hold meetings and hearings on those rules. These findings, if they are maintained after further data collection and additional analyses, demonstrate that while it may be true that midnight regulations are generally deficient with respect to their justifications and supporting analyses, these shortcomings do not extend to agencies’ public consultation practices, which are designed to enhance accountability to elected officials and the broader public.