Accounting for Science: The Independence of Public Research in the New, Subterranean Administrative Law
Hornstein, Donald T., Law and Contemporary Problems
The corporate accounting scandals of the early twenty-first century are stark reminders that "the map is not the territory." (1) In the accounting scandals, stock valuations dropped when investors lost confidence in corporate earnings reports giving a true picture of the actual financial territories they purported to map. Currently, the White House Office of Management and Budget ("OMB") is putting the final touches on a new system of regulatory accounting, a system designed to account for the science used by federal agencies in their administrative missions. In light of the corporate accounting scandals, both the timing and shape of the new system of accounting for science are remarkable. It is as if nothing has been learned.
To be sure, OMB's program is sometimes explained simply as an attempt to improve the accuracy of regulatory science. But there are also reasons for concern that OMB's new programs could be used to skew the system by which regulatory science is generated in the first place. Worse, if abused, the new program could undermine precisely the type of independence in research that is currently seen as the necessary corrective policy on the corporate accounting side. Just when investment research department research departments are being insulated from undue influence, the new accounting for science is actually magnifying the influence, corporations can have on what science tells us about the state of the world.
After detailing the legislative contours of OMB's new powers, including the scant record of Congress's delibration over them, this Article analyzes their potential impact--both on the legal regimes affecting regulatory decision-making and, perhaps more fundamentally, on the institution of independent scientific research itself. In Part II, this Article identifies within OMB's programs the expanded boundaries of a new, subterranean battleground in administrative law, one in which the scent of future regulation is caught by stakeholders who then battle to shape the scientific facts on which future regulation may be based. The result in administrative law terms is something akin to hard-look review taken across the dimension of time and space. Now, in the name of ensuring "good science," a very hard look indeed is applied almost at the moment of regulatory conception, when the first factual glimmerings of problems in the real world begin to be discerned by scientists. If a new term must be coined for this development, perhaps it should be known as the "withering-look" doctrine. So it is that William Kovacs, a vice president of the U.S. Chamber of Commerce, predicts that OMB's new programs "will have the most profound impact on federal regulations since the Administrative Procedure Act was enacted in 1946 ... by ensuring that [the Environmental Protection Agency] uses better science, and by giving industry additional grounds to sue." (2)
In Part III, this Article discusses the danger to science itself. To be clear, the danger is not simply a heightening of the contest over what constitutes "good science" that has become such a fixture in health, safety, and environmental rulemaking. Rather, the danger involves a radical new level of disputation, in which warring stakeholders can reach back up the scientific pipeline to federally supported research laboratories and exert a distorting influence on what is generated in the first place and on what citizens can be told by agencies about the range of scientific opinion on matters of political concern. At its worst, the new program could support an official truth squad of political appointees at OMB to ensure that all science is "good" and a cadre of stakeholder vigilantes with the ability to harass scientific researchers who have produced results with which they disagree. It is little wonder then, that in contrast to the virtual absence of congressional deliberation, implementation of OMB's new programs has been opposed at various points by the American Association for the Advancement of Science, (3) the National Academy of Sciences, (4) the National Institutes of Health, (5) the Council on Undergraduate Research, (6) and the Association of American Universities. …