Public participation is a defining feature of the modern administrative state. One of administrative law’s functions is to ensure meaningful participation by relevant stakeholders. Importantly, as the public’s expectations of and demands for what participation mechanisms are meant to accomplish have evolved, policymakers and the courts have updated administrative law requirements and doctrines.
The first definitive statement of public participation in modern administrative law came with the passage of the Administrative Procedure Act in 1946. Its requirements for public participation in informal rulemaking procedures, for instance, reflect the relatively modest expectations of the time.
These requirements established something of an “open door” policy, in which agencies would serve as mere passive receptacles of the public’s input. Their overriding concern was providing businesses that would be subject to new regulations with a chance to weigh in. As such, these requirements were more or less geared toward facilitating a binary exchange of information between two parties (government and regulated entity) operating from positions of relative parity.
Over time, though, the character of the administrative state evolved and expanded. The conception of the “public interest” broadened, spurring Congress to pass laws that were more consciously targeted at advancing the general welfare. This required adaptations to administrative law so that it could include and respond to an expanding cast of stakeholders whose distinctive status as regulatory beneficiaries — as opposed to regulated entities — changed our understanding of why public participation was important and what broader goals and values it should serve.
Renowned legal scholar Richard Stewart reflected on these developments in his seminal 1975 article, The Reformation of American Administrative Law. Among other things, the article describes how federal judges gradually adjusted administrative law doctrines to accommodate a pluralist model of regulatory democracy, in which competing interest groups seek to exert influence over the substance of regulatory decision-making.
Stewart questioned how well this model worked in practice in terms of ensuring meaningful engagement from different stakeholders, and by extension whether public input mediated via organized interests was adequate to legitimize the administrative state’s role as a delegated policymaker.
At roughly the same time, a different vision of regulatory democracy was percolating — one that was, even by today’s standards, radically more inclusive and direct. In response to President Lyndon Johnson’s declaration of “war on poverty,” Congress passed the Economic Opportunity Act in 1964. Lawmakers recognized that the engagement of the poor would be essential for effective implementation of programs aimed at addressing the root causes and consequences of systemic poverty, and thus incorporated a requirement for “maximum feasible participation.”
This requirement rejected the open-door policy of the APA and instead imposed on agencies an affirmative responsibility to help the poor to build the necessary capacity for effective and durable engagement. This grew from the apparent recognition that an open door was meaningless to those who lacked the resources to cross the threshold in the first place, much less engage in the kinds of costly engagement activities (e.g., legal arguments or technical analyses) that carry the day once inside.
The then-newly created Administrative Conference of the United States (ACUS) issued a recommendation in 1968 that affirmed the basic tenets of maximum feasible participation and called for its application more broadly to all regulations impacting the poor. Among other things, the recommendations include best practices for affirmative outreach to poor communities. Even more radically, it calls for the creation of a “People’s Counsel” that would be charged with representing “the interests of the poor in all Federal administrative rulemaking substantially affecting the poor.”
As with much of the War on Poverty, the bright promise of maximum feasible participation fizzled amidst the cost and political backlash of the Vietnam War and the Watergate scandal. The pluralist model won out, and its influence could be seen on later innovations on regulatory democracy. For example, the Office of Information and Regulatory Affairs adopted an “open door” policy for its stakeholder lobbying meetings during the Executive Order 12866 centralized regulatory review process, with patterns of participation that were entirely predictable.
Even still, the weaknesses of the pluralist model first identified by Stewart only became harder to ignore during these years, as the rise of the environmental justice movement — distinct and often at odds with broader legacy environmentalism — dramatically illustrates.
More recently, lawmakers have started to take more seriously the procedural injustices that characterize our regulatory system. In particular, there has been a growing recognition that passive forms of public engagement reinforce underlying power disparities and structural injustices in our society, and that affirmative support for and even subsidies of public participation are required.
For instance, progressive members of the House of Representatives have coalesced around a comprehensive regulatory reform bill called the Stop Corporate Capture Act. One of its provisions would establish an Office of the Public Advocate, which, like the People’s Counsel described in the 1968 ACUS recommendation, would seek to support meaningful participation in the rulemaking process by individuals and communities that have historically been underrepresented.
Separately, the Biden administration made expanded public engagement a priority through its broader Modernizing Regulatory Review initiative. As part of that initiative, the Office of Management and Budget issued guidance to agencies on improving public engagement. One of the notable innovations was to involve individuals and underrepresented communities earlier in the process, prior to the notice-and-comment process when the policy discourse can become especially technical and complex.
Efforts to democratize the regulatory system are by no means guaranteed to succeed. The Trump administration has taken several steps to undermine public participation, including limiting the use of notice-and-comment procedures. And the ascendancy of the “abundance movement” has put regulatory procedures of all types — but especially those focused on obtaining public input — in the crosshairs. This movement holds that public participation should be minimized because it has become too much of a barrier to effective and efficient policy implementation.
Much as was the case in the late 1960s, regulatory democracy seems to be at a crossroads. Where we go from here is impossible to predict but will have profound implications for our democracy and for the progressive agenda of building a future America that is more socially just.
