Biden Regulatory Democracy Proposal Follows the Center for Progressive Reform’s Recommendations

Last week, the Biden administration took the next step on its important initiative to “broaden public engagement in the federal regulatory process,” announcing a set of proposed reforms and asking for more public feedback.

As the announcement explains, these proposals reflect input the administration received during a public listening session and an open comment period it conducted last November — both of which I participated in along with several members of the public interest community. I was pleased to find that many of our recommendations were reflected in the proposals.

Here are some general highlights from the notice:

• Acknowledgement of the importance of the regulatory system. Significantly, the notice begins by describing the valuable role that regulation plays in our lives: “Federal regulations make a difference in people’s lives every day — from improving access to safe, effective, and affordable hearing aids to ensuring people are safe at work.”
  
  My comments called on the administration to use opportunities like this initiative to “define a positive vision of the regulatory system.” Unfortunately, this is something even progressive lawmakers have been afraid to do, leaving the regulatory system vulnerable to attack from conservatives and their industry allies.

• Acknowledgement of the democratic value of the regulatory system. Just as important, the notice goes on to emphasize the important role the public plays in our regulatory system and how its full democratic potential could be advanced through smart reforms: “While the process of crafting Federal regulations provides opportunities for public comment, the Biden-Harris Administration is committed to making it easier for the American people to have their voice heard, especially those from underserved communities.”
  
  In my oral and public comments, I urged the administration to champion the democratic credentials of the regulatory system, noting that “the regulatory system offers one of the most important forums for public engagement in our constitutional democracy.”

I was also happy to see many of our ideas reflected in the reform proposals that the administration is considering, including:

• “Develop accessible material… describing why regulations matter.” In my oral presentation, I closed by noting that the public is less likely to be motivated to participate in shaping regulations if they don’t have an accurate understanding of the valuable role public protections play in their lives. The administration must be committed to educating the public and building public support for the regulatory system.

• “Proactively disseminate relevant materials, especially through partnerships with community-based organizations….” In my written comments, I emphasized that a general theme of reforms aimed at increasing public engagement is affirmative outreach to affected communities, particularly if those communities have been structurally marginalized from political processes in the past. Relying on trusted intermediaries, such as community-based organizations or churches, would further strengthen this approach.

• “Demonstrate how public comments make a difference in rulemaking by providing prominent examples.” In my oral presentation, I noted that beyond promoting greater public engagement, the administration must also seek ways to ensure that this engagement is durable and ongoing. Members of the public will quickly lose interest if they do not believe their efforts are making a difference. To avert this, agencies must commit to showing the difference the public’s input is making in regulatory implementation.

• “Consider opportunities for members of the public to provide input in multiple formats, for instance through recorded video or audio submissions in addition to written submissions.” Not all members of the public are comfortable expressing their views in written formats, and requiring that they do so can present an unnecessary barrier to participation. Various forms of social media provide Americans with a platform for expressing themselves in audio or video formats, and the government should seek to take advantage of this development. In an essay a few years ago, I called on federal agencies to go even further and encourage the public to comment on rulemakings through visual, audio, or video arts.

• “Encourage agencies to engage with relevant stakeholders to develop ways to facilitate public participation in the regulatory process.” Nobody knows better how to engage the public in the regulatory process than the public itself. That’s why in my written comments, I urged the Biden administration to make sure that the public plays a meaningful role in designing reforms to improve public participation.

• “Conduct outreach to key communities and stakeholders when agencies are still formulating regulatory priorities….” Often, the best opportunities for engaging the public — particularly members of structurally marginalized communities — is outside of the notice-and-comment process. Accordingly, in my written comments, I recommended that the Biden administration give special attention to other stages of policy implementation, particularly at the agenda-setting stage.

The administration's notice of these reforms requests general input on public engagement in the regulatory system, as well as feedback on a series of specific questions that are posed there. The public can respond to this request by submitting written comments or audio or video recordings by 5 p.m. Eastern time on Friday, March 10. The public can also share its views on these issues during a virtual listening session from 3:00 – 4:30 p.m. Eastern on Tuesday, March 7 (link to come).

I once again applaud the Biden administration for taking on this initiative. I look forward to working with the Center’s public interest allies, including members of the Coalition for Sensible Safeguards, to take full advantage of the opportunities the administration is offering to continue engaging in this process. I will post updates on these activities on this blog, so stay tuned.