Last month, the White House Office of Information and Regulatory Affairs (OIRA) announced that it was conducting a public listening session to obtain ideas about how the Biden administration could strengthen the public’s ability to engage in the regulatory system. This is an issue we at the Center have been working hard on in recent years. (See here, here, and here.) So, we were happy to answer OIRA’s call.
OIRA’s listening session took place on November 17. I was joined there by several members of the public interest community. The session was conducted under the Chatham House Rule, so I’m limited in what I can say about what was discussed. But I can report that (1) there was widespread agreement that public participation is an essential part of the regulatory system already and (2) there is much the administration should do to make it easier for the public to influence how regulations are implemented, particularly for members of structurally marginalized communities.
One point I emphasized during my presentation is that the Biden administration must begin affirmatively defending the regulatory system as a vital part of our system of democratic government. This will be essential if we are to overcome the decades of attacks on the regulatory system from corporate special interests and their conservative allies in government. After all, if the public fails to recognize the value of the regulatory system, they are unlikely to take advantage of opportunities to participate in it.
As part of the listening session, OIRA also welcomed written submissions of ideas through an email address. The deadline for submitting written ideas was December 2. The letter I sent OIRA is available here.
My letter set out to accomplish the following three tasks:
- Outline why strengthening public participation in the regulatory system is an important goal for the administration to pursue;
- Catalog many of the common barriers that the public faces when attempting to take advantage of participation opportunities that the regulatory system offers; and
- Provide a general blueprint for reform to improve public participation.
Key elements of the reform blueprint my letter offers include the following:
- Public engagement strategies should look beyond the notice-and-comment process and instead give special attention to earlier steps in the rulemaking process (e.g., agenda-setting) and later steps (e.g., compliance monitoring and enforcement);
- The public should play an active and meaningful role in reforming public participation in the regulatory system; and
- Reforms should be tailored to specific agency circumstances as much as possible, since overly prescriptive, “one-size-fits-all” reforms are unlikely to be effective.
I am delighted to see OIRA undertake this effort to improve the regulatory system. As compared to its traditional role of “regulatory gatekeeper,” this is a far better use of its institutional position and substantive expertise. I look forward to continuing to work with the staff at OIRA on making the regulatory system more inclusive and responsive, especially with regard to members of structurally marginalized communities.