Potter’s book is part Rulemaking 101, along with a series of detailed empirical studies to explain the tools and methods regulators deploy to ensure their work results in final rules. Many of the tools studied—the too-short public comment period, for example—may be familiar to many, but the book relies on a comprehensive data set to explain how each agency differs and how effective each tool is at staving off political scrutiny.

The book is basically a study of how regulators employ procedural tools to insulate their rulemakings from sabotage by third-parties. Naturally, anyone who spends two to three years shepherding a rule through the notice-and-comment process, OIRA review, media scrutiny, and Capitol Hill hearings will have plenty of motivation to ensure a proposed rule eventually becomes a final rule. Agencies not only wield incredible substantive power—given the broad latitude Congress typically concedes to regulators in legislation—but also procedural power to craft how many words are in a rule, how long the public has to comment, and when a rule is published.

Consider that, for many career regulators and even political appointees, there is notable scrutiny for a substantial number of major rules. If Congress is controlled by a different party than the presidency, for instance, expect frequent oversight hearings. Every controversial regulation will generate tens of thousands of comments (if not millions) from proponents wishing to finalize the rule and opponents hoping to defeat it. For some rules, press coverage will be sufficient to give the agency and the rule a national profile. Bending the Rules demonstrates regulators shrewdly respond to this outside pressure by using all of the procedural tools at their disposal to make substantive changes to the regulatory state.

Mightier than the sword / Potter, a University of Virginia political scientist, argues that regulators’ “writing tool kit” is far more powerful than many realize. For example, agencies can frame a potentially controversial regulation in less contentious terms. For instance, they can place their fingers on the benefit–cost scale, deciding which costs and benefits to consider in an analysis. Who could oppose a rule with $2 billion in net benefits to the economy? Political allies and many in the press seize on these agency-generated figures to help usher a proposed rule to final form.

Also, regulators can write a ton of words, employ legal and technical jargon, and make the rule as “inaccessible as possible.” In a town with overworked congressional staff, a complicated rule raises the cost of oversight. That extends beyond Capitol Hill; many interested trade associations and corporations that have to comply with the rule sometimes must hire outside experts to digest the complicated wordsmithing of agencies.

Rather than just explore these phenomena on a surface level, Potter does the reader and the regulatory community a favor by quantifying the biggest offenders of the incomprehensible rule trend. To do so, she compiles a dataset of more than 11,000 proposed rules issued between 1995 and 2014. Roughly 84% were eventually finalized.

One of her analyses focuses on the complexity of rules. To quantify “complexity,” she develops two measures. The first is length of the preamble, which is what many of us consider to be the actual rule. This is the section of the proposal that explains the rule and precedes the text that will actually be codified in the Code of Federal Regulations. She finds a typical preamble is roughly 6,300 words, or 25 double-spaced pages. The second measure she uses revolves around the clarity of the text itself. Instead of relying on a single readability metric, Potter employs 28 widely used measures of readability.

The book convincingly demonstrates how agencies use complexity to ward off opposition and get the rule to final publication. For example, judicial oversight can also be a key driver for how agencies manipulate rulemakings. For agencies subject to frequent legal challenges, the average preamble increases to more than 10,100 words, roughly 41 pages. Likewise, when there is substantial public opposition, agencies increase the length of the preamble by an average of 6,200 words.

Which agencies make life easier or more difficult for those who must actually comply with rules? On readability, the Food and Drug Administration fares poorly. On the average preamble length, both the Environmental Protection Agency and the Centers for Medicare and Medicaid Services will bury readers in technical rhetoric. Anyone who has ever had the displeasure to read an entire EPA or CMS rule will understand Potter’s results.

Diminishing readability confers two advantages on agencies. First, as mentioned, the media and Capitol Hill must devote more time and resources to understanding the rule. Second and perhaps less obvious, a detailed and complicated rule might help with compliance. There are firms that prefer more detailed measures to spell out exactly what they must do to achieve compliance. Many companies have a cadre of in-house and outside lawyers who charge a small fortune to help companies understand regulation.

A more detailed preamble might score low on the readability scale but it might also ensure the rule survives a court challenge. As Potter demonstrates, there are plenty of incentives for agencies to continue cranking out longer rulemakings. What’s worse, few regulatory reform proposals even scratch the surface of addressing this problem.

Timing is everything / On paper, the 2012 presidential election was supposed to be a close affair. Incumbent Barack Obama had a narrow lead in the polls, but challenger Mitt Romney was believed to be close enough to make election night interesting. It didn’t turn out that way, though; as the returns came in, Obama easily pulled away.

In the months leading up to the election, regulators and Obama’s administration were busy deploying a procedural tool to help grease the wheels of his reelection: delay. As followers of the regulatory world are well aware, rules can fly out of the administration after election day and before inauguration of a new president: the so-called “midnight” period. On the flip side of this phenomenon, regulators can temporarily halt rules to diminish political backlash. For instance, regulators decided to sit on an EPA regulation that would have slightly increased the price of gasoline until after the 2012 election. (They weren’t the only ones; the Washington Post only reported on the rule a year later.) Although the White House officially claimed that the delay in announcing the rule and other measures was merely coincidental, interviews with seven administration officials confirmed that politics played a role.

As Potter notes, regulators have a “timing tool kit” that complements the writing tool well. The timing kit includes deciding when to publish a proposed or final rule. It can also include the length of the comment period. Rules with a 90- or 120-day comment period often take longer to finalize than rules with just a 30-day period. Another tool is manipulating the time between when OIRA releases a final rule and when it actually appears in the Federal Register. Research by the American Action Forum shows that these maneuverings go beyond delays or expedited publication to actual strategic publication of new rules. For instance, August is a popular month to publish regulation. That Congress takes the month off is probably more than just a coincidence.

The timing tool kit also includes determining the effective date of a rule, including postponing it until well after the rule is published. Incoming administrations often use this delay to review the recent rules from their predecessors. As Potter notes, regulators use these tools to limit the amount of scrutiny—both political and legal—a regulation receives.

The dataset in Bending the Rules also helps to understand the regulatory timing phenomenon. Potter finds that while 60 days is supposed to be the norm for comment periods, there is considerable variance among the agencies. For example, the Federal Aviation Administration, FDA, and Office of Energy Efficiency and Renewable Energy often have the longest comment periods. On the other side, the National Oceanic and Atmospheric Administration and Office of Personnel Management typically have fast turnarounds for their rules. These may seem like trivial stats, but regulated companies must marshal considerable resources quickly to comment in just 30 or 60 days. A lot is on the line. Sometimes regulated entities can be barred from raising an issue in court if they failed to do so during the rulemaking process. As Potter notes, regulators are well aware of this reality and manipulate it in their favor when possible.

Conclusion / Bending the Rules is a fascinating and well-researched dive into an often-overlooked area of regulatory policy. Many scholars are determined to study the substantive effect of a regulation and how it affects economic growth, prices, and employment. These are important topics, but as Potter demonstrates, understanding the steps regulators take before a proposed regulation becomes a final rule is just as important.

One of the book’s main benefits is its accessibility for those just learning about regulatory policy and its ability to contribute novel research to this underappreciated area of study. Few will look at an August recess final rule or a comment period of 30 days again without thinking about the regulatory motivations that went into those pivotal decisions.