The regulatory policy world is often a sleepy one — I’m the first to admit that — but last week was a notable exception. In addition to a U.S. House Judiciary subcommittee hearing on regulations, the Biden administration’s Office of Information and Regulatory Affairs (OIRA) wrapped up efforts to solicit public input on its recommendations for broadening public input in the regulatory process.
I was delighted to participate in the listening session last Tuesday and to submit written comments. I used these opportunities to react to OIRA’s recommendations and to urge the office to go further to better enable the regulatory system to achieve its full democratic potential. In this, I was joined by many members of the progressive advocacy community who shared insights based on their experiences with the rulemaking process.
In my written comments, I began by congratulating the Biden OIRA for both articulating a positive vision of the regulatory system and highlighting the unique value of the public participation opportunities the regulatory system offers. I encouraged the administration to continue using its powerful megaphone to champion these ideas so as to encourage more people to take the time and energy to engage with regulatory decision-making.
Barriers to participation
Next, my comments turn to a threshold challenge facing OIRA: identifying barriers that prevent people from shaping regulations by providing input to agency decision-makers. In its recommendations, OIRA correctly identifies that basic material and logistical barriers (e.g., listening sessions held during work hours) make it harder for people to participate in the system, as does the inherently technocratic nature of many policy questions addressed in regulatory decision-making processes. As such, the recommended reforms all aim to overcome these barriers in some form.
My comments also urged OIRA to consider two types of barriers to engagement. The first regards the high monetary costs of participating. Simply adding “new” participatory opportunities may not increase participation because many people may not be able to afford to take advantage of them. Instead, the administration should find ways to lower costs or, failing that, ensure that the quality of the opportunity justifies any additional participatory expenses.
The second barrier concerns industry dominance. Here, the administration should consider reforms that prevent industry from using its vast resource advantages to abuse the rulemaking process.
My comments then pivot to the specific recommendations offered by OIRA. As I explain, I supported all but one and agreed that they would help promote greater public engagement. The one I opposed urges agencies to work with trade associations to promote greater engagement by small businesses.
My research with Center colleagues on the Small Business Administration’s Office of Advocacy finds that trade associations are too closely aligned with the interests of their largest members, which often puts them at direct odds with the small businesses in their industry. I thus urged the Biden OIRA to reject that recommendation.
Long list of reforms
Finally, I closed my comments with a long list of suggested reforms, including that OIRA coordinate its Modernizing Regulatory Review initiative with this one since its centralized review function has long excluded meaningful public participation.
In addition, I urged the administration to “institutionalize” participation reforms so they remain durable and have a better chance of outlasting the Biden administration. For instance, it should (1) direct covered agencies to create tailored public participation plans for each of their active rulemakings based on a general framework created by OIRA and (2) establish an Interagency Council on Public Engagement through which agencies could share best practices for engaging the public.
I also encouraged OIRA to think differently about this issue. The office is considering many strategies to make it easier for members of the public to “act like” professional lobbyists and advocates. Instead, the administration should consider how agencies might recalibrate their actions so that people can participate more effectively by simply being themselves.
Agencies could, for example, “translate in” feedback from the public and bring it to bear on the more technical or complex issues implicated by a particular rulemaking. They could also identify opportunities to creatively integrate regulatory participation into people’s ordinary activities, such as enlisting bird watchers and hikers to supplement agencies’ pollution compliance monitoring programs.
Beyond these comments, the Center also signed on to a community letter organized by the Coalition for Sensible Safeguards, which generally supports OIRA’s recommendations and urges the Biden administration to further promote public engagement in the federal regulatory system.
As my Center colleagues and I have written before, increasing public engagement is one of the most important progressive reforms we can make to modernize the regulatory system. We will continue to use available opportunities to push for action on this front.
