Biden’s New Open Government Plan Lays Out a Progressive Regulatory Reform Agenda

In case you missed it, the Biden administration capped off 2022 with the release of a new “open government” plan that aims to improve access to federal data and information, better engage the public in the regulatory process, and streamline delivery of government services and benefits.

While the 21-page document — the fifth installment of the U.S. Open Government National Action Plan — doesn’t unveil any new policy proposals, it is a useful compendium of actions the administration has taken or is planning to take to make the executive branch more accessible to and inclusive of the public. Importantly, many of these actions are consistent with the progressive regulatory reforms that my colleagues at the Center and I have long been calling for.

The plan is built around five themes: (1) Improve Access to Government Data, Research, and Information; (2) Increase Civic Space to Engage the Public; (3) Transform Government Service Delivery; (4) Counter Corruption and Ensure Government Integrity and Accountability to the Public; and (5) Ensure Equal Justice Under the Law. Of those, the first, second, and fourth are most relevant to progressive regulatory reform.

Some of the plan’s highlights include:

• An explicit recognition of the importance of having a robust, responsive, and inclusive regulatory system for promoting social equity and maintaining the integrity of our democratic institutions. As the plan observes, “More meaningful engagement of the public in the work of government results in better policy design and program administration … and also builds virtuous cycles of public trust and confidence in the Federal Government and in democratic institutions [emphasis added].” The plan also recognizes the connection between social equity and safeguarding American democracy, observing that “[a]ll too often, underserved communities bear the brunt of democratic backsliding.”

• The promotion of a more inclusive and responsive regulatory process. As it explains, the historic posture of agencies to act as passive receptacles of public input is inadequate, particularly for structurally marginalized communities. Instead, “proactive engagement is critical to ensure that communities — including those communities that have experienced marginalization, exclusion, and discrimination in the past — participate in the process.” The plan also recognizes the importance of “meet[ing] community members where they are” and “engaging [community members] through the full cycle of Government functions — not simply after key decisions are made.”
  
  The plan describes several steps the Biden administration is taking to put into practice this vision of public engagement in the regulatory process. An important one is the implementation of the Day One Modernizing Regulatory Review memo, which has been in limbo for two years. It also notes the actions individual agencies are taking on their own, including “improved public resources, regional townhalls, Requests for Information, and collaborations with community-based organizations to share regulatory priorities and solicit community input.”
  
  Finally, the plan also notes the role of the administration’s Executive Order 13895, which calls on agencies to “develop and implement equity action plans.” Through the plans, agencies are supposed to document and “detail affirmatives steps” for addressing “obstacles that underserved communities face in accessing Federal Government benefits, services, and contracting opportunities.” In 2021, I submitted comments to the White House Office of Management and Budget (OMB) explaining how it should use this process to promote public participation in the rulemaking process.

• A recognition of the significance of “information justice” and a blueprint to advance it. One of the biggest challenges facing the regulatory system is that policy decisions must often be made against a background of uncertainty, and this can result in costs in the form of ineffective policies. The problem is that these costs are inequitably distributed along racial, ethnic, and class lines. The plan identifies several actions the administration is undertaking to reduce uncertainty that disproportionately harms low-income communities and people of color (a.k.a. information injustice). For example, it is breaking down government data “by key demographic variables” whenever relevant and when it can be done reliably. It is also advancing information justice through its “Year of Evidence for Action” initiative, one of the purposes of which is “to share leading practices from Federal agencies to generate and use research-backed knowledge to advance better, more equitable outcomes for all of America.”
  
  Finally, the plan includes actions to encourage greater public participation in science. “Local communities can tell us what is important to them and establish solutions that work for them,” the plan notes. “At the same time, scientists can make their research more relevant and grounded in those communities, increasing the reach and impact of Federal science and innovation effort.” According to this vision, democracy and expertise need not be incompatible; indeed, regulatory decision-making works best when both inputs can be melded together without disregarding one or the other. The plan also highlights the important role of agencies’ “multi-year Learning Agendas and Annual Evaluation Plans as required by the Foundations for Evidence-based Policymaking Act” for promoting information justice.

• A blueprint for safeguarding agency independence. One of the most important features of the U.S. regulatory system is the thousands of professional experts that agencies have at their disposal and their unique ability to solve our most pressing policy challenges. This is exactly why Congress created these agencies and charged them with implementing law. As the plan notes, though, interference with agency expertise can have disastrous consequences: “Improper influence over, or distortion of, knowledge production threatens the development of sound policies and the implementation of effective programs that equitably deliver services and benefits to the population.”
  
  Accordingly, the plan outlines actions the administration is taking to ensure that agencies are able to deploy their professional expertise free of political interference, both from political appointees and from the private sector. The administration established a Task Force on Scientific Integrity that so far has “reviewed Federal agency scientific integrity policies, identified opportunities to strengthen those policies, and is working with individual agencies to update their policies to improve scientifically informed, evidence-based decisions.” To reinforce these actions, the administration is also pursuing steps to strengthen the role of federal inspectors general and further enhance whistleblower protections for federal public servants.

In embracing these principles, the administration’s Open Government National Action Plan fully aligns with the Stop Corporate Capture Act. This bill, which was introduced in the last congressional cycle, would level the playing field for all members of the public to have their voices heard on regulatory decisions that affect them; promote scientific integrity and public accountability; and restore our government’s ability to deliver results for workers, consumers, public health, and the environment. That suggests a consensus is now emerging on progressive regulatory reform.

More work remains on instituting the actions set forth in the new plan. But, with the Biden administration facing a divided Congress for the remainder of the first term, it must focus fully on advancing its agenda through regulatory action. Using all of the administrative tools available for pursuing progressive regulatory reform can ultimately make the difference in whether that agenda is achieved in a timely and effective manner or not.