President Donald J. Trump signed the "Foundations for Evidence-Based Policymaking Act of 2018" (the "Act"). The new law is intended to improve the federal government's use of data to make policy decisions. The Act was introduced in the House by Representative Paul Ryan (R-WI) and co-sponsored by Representative Blake Farenthold (R-TX), Representative Trey Gowdy (R-SC) and Representative Derek Kilmer (D-WA). The Act was introduced in the Senate by Senator Patty Murray (D-WA).

The Act was informed by recommendations from a report on how to improve the evidence available for making decisions about government programs and policies. The report calls for "rigorous evidence" to be created efficiently and used to create "effective public policy."

Specifically, the Act:

  • requires federal agencies to create evidence-building plans for identifying and addressing policy questions relevant to the programs, policies and regulations of the agency;
  • obligates certain regulators to report a plan annually to the Office of Management and Budget ("OMB") and Congress for addressing policy questions relating to the program and regulations of such departments and agencies;
  • creates an Interagency Council on Evaluation Policy to aid the OMB in facilitating government-wide evaluation activities and policies ("evaluation" means "an assessment using systematic data collection and analysis of one or more programs, policies, and organizations intended to assess their effectiveness and efficiency");
  • requires certain regulators to designate (i) a Chief Evaluation Officer to "coordinate evidence-building activities" and (ii) an official with statistical expertise to provide advice on statistical policy, techniques, and procedures;
  • mandates the OMB to institute an Advisory Committee on Data for Evidence Building to expand access to federal data for "evidence building";
  • directs open government data assets to be published as machine-readable data;
  • establishes in the OMB a Chief Data Officer Council for "establishing government-wide best practices for the use, protection, dissemination, and generation of data and for promoting data sharing agreements among agencies"; and
  • codifies certain provisions in the "Confidential Information Protection and Statistical Efficiency Act of 2017" with respect to "confidential information protection and statistical efficiency."

Commentary / BobZwirb

While this appears a step in the right direction, good policymaking requires more than simply creating better quantitative evidence. It also requires that policy makers be open-minded in evaluating the evidence. For example, in the past, the CFTC repeatedly argued that it need not review economic studies submitted to it by outside parties questioning whether proposed position limits were effective or necessary, nor even consider costs and benefits of the proposal. ISDA & SIFMA v. CFTC, Civil Action No. 11-cv-216 (D.D.C. Sep. 28, 2012). By way of further example, in Business Roundtable v. SEC, 647 F.3d 1144, 1148-49 (D.C. Cir. 2011), the D.C. Circuit found that the SEC, in considering its proxy access rule, "opportunistically framed the costs and benefits of the rule [and] failed adequately to quantify the certain costs or to explain why those costs could not be quantified." More recently, the Inspector General of the CFTC issued a report that found that the agency's high level staff "undermined efforts to improve the usability of uncleared swaps data" in order to advance its preferred methodology.

If "creating a culture of evidence use in policymaking" is to be achieved, as the Bipartisan Policy Center advocates, a change in attitude by regulatory agencies regarding the importance and proper use of such evidence in both rulemakings and enforcement efforts will be necessary.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.