The Public Needs a Voice in Policy. But is Involving the Public in Rulemaking a Workable Idea?

by Bill Funk

April 13, 2010

Informal rulemaking under the Administrative Procedure Act was, as the late Kenneth Culp Davis opined, "one of the greatest inventions of modern government." It not only decreased the procedural requirements (and therefore the overhead) of “formal” rulemaking, but it also broadened the universe of persons able to participate in the informal proceeding to the public at large. Subsequently, other laws, such as the Freedom of Information Act, the Government in the Sunshine Act, and the Federal Advisory Committee Act, have expanded the ability of the public to monitor agency activities, if not to participate in them. BTI (before the Internet), agencies informed the “public” of proposed rules by publication in the Federal Register, which was widely available in public libraries. Interested members of the public could then submit comments on the proposal through the U.S. Mail (or private express carriers). Of course, those “in the know,” the Washington lawyers and lobbyists who actually read the Federal Register notices, could not only comment on the proposals but also monitor what was submitted to the agency by going to the agency’s FOIA reading room. And, of course, these same lawyers and lobbyists could also make use of their proximity to the agencies by arranging one-on-one meetings with influential persons in the agency. “Good government” at the time meant that such meetings would be docketed and summarized and any written material there obtained placed in the record. This information might be useful to the other insiders in Washington, but it was useless to the public at large.

The availability of the Internet has led some to believe that this rulemaking paradigm can be altered in favor of greater public participation and influence, presumably to the detriment of the traditional power brokers. Regulations.gov is the official government attempt to put rulemaking online. As a means of empowering the public, however, it’s a disaster. It is difficult to navigate, and its search engine can’t find its way home. For example, if you wanted to find the Department of Transportation’s recently proposed rulemaking to prohibit commercial truck drivers from texting while driving, you might try using the keyword “texting.” But if you did, you wouldn’t find this rule. If you’re an expert (one of those Washington insiders with a little tech savvy), however, it’s OK, because you probably already know the docket number.

Along comes Cornell Law School and its Legal Information Institute (known for its immediate dissemination of Supreme Court opinions), with a new initiative, the Cornell E-Rulemaking Initiative or CeRI. Together with the Departments of Transportation and Commerce and the National Science Foundation, CeRI is attempting to help agencies transition to electronic rulemaking. In particular, CeRI wants to facilitate public participation in government policymaking and increasing public participation beyond the notice-and-comment process.

CeRI seeks to bring rulemaking into the social networking age. The project would notify interest groups about rulemakings they would be interested in, and they would be directed to the "Regulation Room" where they will find a list of “open rules” – proposed rules upon which people may comment. For each open rule, the site provides a short summary of the rule as well as a series of issues, the text of which is written by Cornell law students in a catchy, friendly manner. For example, here’s the beginning of the overview of the “risks” issue for the current open rule that would prohibit commercial truck drivers from texting while driving: “If the thought of drivers doing 65 mph on the interstate while reading their email or sending text messages makes you cringe, you'll want to know more about a proposed new federal regulation.” Imagine reading that in the Federal Register. The overview is followed by “details,” which summarizes in “plain language” the text of the Federal Register notice but also includes hyperlinks to underlying documentation in the rulemaking record that was not published with the Federal Register notice. Readers are invited to discuss written material on the site. These discussions are not comments to the agency, as the site is maintained by CeRI, but CeRI says that it will provide a draft summary of the discussions, which it will submit for comment on the site, and then after receipt of comments submit a final summary to the agency. In addition, there will be a “collaboration phase” during which like-minded persons may collaborate on the site to draft comments that CeRI will submit to the agency on behalf of those persons.

This sounds interesting, and the Regulation Room currently has the one open rule mentioned above to ban commercial truckers from texting while driving, which was noticed in the Federal Register on March 31. CeRI notified potentially interested groups, such as bicycling organizations and small business associations which represent many motor vehicle operators, through Facebook and Twitter.

Engaging citizens in government is noble, but I'm skeptical that the project is going to work effectively. The question is what purpose the project is supposed to serve. So far, the anti-texting proposed rule in the Regulation Room has generated comments from 14 interested persons in the couple of weeks the site has been open. Several persons have made more than one comment, but none of them provide any usable data or identify any new concern or perspective. And that's a problem, because the regulatory process, by law, is not about casting votes, but about contributing input. Some comments simply say, “Texting should definitely be banned and the ban strictly enforced.” Others say, “Personally, I don’t think there should be a law about txting [sic] while driving. The law [sic] are already on the books for injuring other people and their property.” One commenter has called for persons to send Avery labels with the inscription “Turn Off Cell B/4 Driving!” to friends, relatives, teachers, and kids, with the idea that the labels should be pasted on to cell phones. Maybe it’s a good idea, but it’s not clear what its relevance is to the rulemaking.

Here's part of the problem: telling the public they can have a voice in the rulemaking process verges on misleading. The notice-and-comment procedure of rulemaking isn’t supposed to be a political exercise. Of course, politics may be involved in a controversial rulemaking, but it’s not exercised in the comments filed with the agency during the period for public comment. Connected players in the Washington scene, whether from public or special interest groups, may bring political pressure to bear by overtures to OIRA (and what ordinary citizen even knows what those initials stand for), by instigating congressional pressure, and by direct contacts with agency officials. But that’s not an argument for encouraging more citizen input in public comments on rulemakings. That’s an argument for citizens to support the organized groups they believe further their (or the public’s) interests, because public comments on agency rulemakings are not political pressure to which agencies will respond.

If rulemaking were to be decided by direct democracy, then getting out the vote might be relevant, but there is virtually no statutory requirement or authorization for rulemaking that states the agency is to consider the number of people who support or oppose the rule, or even the depth of intensity identified by those on either side. Yet, many members of the public are led to believe that their opinions, in essence their votes, count in rulemaking, and we even see articles suggesting something improper happened because an agency adopted a rule despite the fact that 90 percent of the comments opposed it. Won’t the Regulation Room or an improved Regulations.gov merely make it cheaper and easier for these “votes” to be cast and even further lead people to believe that those “votes” count?

Is it realistic to think that ordinary people with jobs to do, families to attend to, and lives to lead will be able to provide helpful information to an agency engaged in a rulemaking, beyond simply a vote for or against a specific proposal? Do we really think that the regulations will be “better” for the increased volume of public comments? Is EPA’s PSD/Title V Greenhouse Gas Tailoring Rule better for the 19,510 comments received on it?

Public participation via comments in rulemaking may make people feel better, knowing that they can participate in this agency activity, but it may only be giving the public false hope. How will people feel about their experience participating in government when they discover that their comments in fact have no impact whatsoever on the rulemaking?

Rather than struggle to encourage and facilitate comments from the public at large on agency rulemakings, perhaps a progressive should think instead of how to strengthen those who might represent the ordinary person affected by a regulation, sort of an Ordinary Citizen Administration to complement the Small Business Administration. Dedicated professionals with training and expertise and adequate resources could play an important role in providing information, data, and ideas to agencies and could be an effective voice for those citizens who realistically cannot address the technically complicated issues that affect them in the rulemakings.

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William Funk is the Lewis & Clark Distinguished Professor of Law at Lewis & Clark Law School in Portland, Oregon.

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