E-Rulemaking’s
Democratic
Transformation:
Anticipated, Actual, and
Potential
by Michael HERZ, Arthur Kaplan Professor of
Law, Benjamin N. Cardozo School of Law, Yeshiva University (United States).
Notice-and-comment
rulemaking is often held out as the purest example of participatory democracy
in actual American governance. K.C. Davis called notice-and-comment rulemaking
the “most democratic of procedures” because all may participate.[1] Regulators
are required to accept comments from any interested person and consider and
respond to them before making a final decision. Direct public engagement has
been seen as an antidote to the democracy deficit that plagues policymaking by
unelected bureaucrats.[2] Central
to this conception is a belief that the comment process will involve a
meaningful exchange of views. In the words of the DC Circuit, notice and
comment involves “an exchange of views, information, and criticism between
interested persons and the agency.”[3] Indeed,
it is this broad participation and exchange that is seen as legitimating the
resulting regulations.[4]
Of course, the
reality has always fallen far short of these ideals. Many anticipated that
electronic rulemaking would enable more democratic rulemaking, finally allowing
effective and broad public participation. This has not in fact happened. This
paper reviews the course of e-rulemaking in the United States and offers some
suggestions for how it might be restructured in a more limited, but more
meaningful, democratic way.
However, the
traditional paper-based process, with notice via a hard-copy Federal Register and comments stored in
a docket room in Washington, DC, always and necessarily fell far short of the
ideal. Barriers to participation reduced the likelihood of “diverse public
comment,” limited the opportunity for participation by all affected parties, and meant that some useful information was
not reaching the agencies.[5] This
is emphatically true with regard to laypersons. Historically, individuals have
generally simply not participated in notice-and-comment rulemaking. When they
have, prompted by something in a newspaper or a nudge from a stakeholder, their
comments have been ineffective and easily ignored.[6] Perhaps
more important, the basic structure – a one-shot opportunity to submit comments
– prevented the “exchange […] between interested persons and the
agency” anticipated by the D.C. Circuit.[7] And
note what the D.C. Circuit does not even mention, viz. the possibility of an exchange among interested persons.
Beginning in the 1990s, federal agencies started to experiment with
electronic rulemaking, moving what had always been a paper process online.[8]
The Department of Transportation was in the vanguard, establishing an
electronic docket system for rulemakings in 1998. EPA was not too far behind. The
second Bush Administration developed an e-Government Strategy consisting of 25
initiatives; these were very much focused on delivery of services, but did
include expansion of electronic rulemaking as one of its projects. Additional
impetus, and funding, comes from the December 2002 passage of the E-Government
Act.[9]
The Act’s goals and rhetoric are lofty, though for the most part they are aimed
at governmental operations other than rulemaking. The rulemaking provision, Section
206, is fairly modest. It provides that “to the extent practicable, as
determined by the agency in consultation with the Director [of OMB], agencies
shall accept submissions under section 553(c) […] by electronic means.”[10]
Also “to the extent practicable,” agencies “shall ensure that a publicly
accessible Federal Government website contains electronic dockets for
rulemakings under section 553.”[11]
These dockets shall, again to the extent practicable, “make publicly available
online […] all submissions under section 553(c) […] and other materials that by
agency rule or practice are included in the rulemaking docket under section
553(c) […] whether or not submitted electronically.”[12]
In January 2003, regulations.gov, the federal government-wide rulemaking portal,
went live. The next stage was to create a government-wide e-docket system. This
proved challenging, and took longer than most had anticipated, but by the close
of the Bush administration, the regulations.gov site had become the anticipated
government-wide “federal docket management system,” or FDMS.[13]
While agencies
do still receive comments on pieces of paper, and while they must still publish
proposed and final rules in the Federal
Register, some few copies of which are still printed in hard copy,
notice-and-comment rulemaking has now moved on line. It is an electronic
process.
Ten and twenty
years ago, it was widely anticipated that the change from a paper to an
electronic process would be (or even had been) transformative.[14] The
word “revolution” was tossed around rather freely.[15] The
expectation was that it would produce two basic changes in the way agencies
write regulations and, by extension, the substance of the regulations
ultimately adopted. First, the Internet massively reduces barriers to public
participation in rulemaking. E-rulemaking was thus expected to open to all what
had been a largely invisible insiders’ game limited to sophisticated players
blessed with access, funds, a Washington, DC presence, and good lawyers. Second,
e-rulemaking promised to make the process more dialogic. Instead of a spoked wheel, with the agency at the hub and
numerous isolated commenters sending their comments in to the center, all
independent of one another, the online process seemed to invite reply periods,[16] comments
on comments, exchanges through different media, collaborative drafting – in
short, a conversation, with genuine give and take.[17]
The
expectation was that these two changes would in turn have three significant
benefits. First, and most prosaically, it would be more efficient. Agencies
would have less paper to manage, and centralizing the process would bring
economies of scale.
Second, and
most grandly, by bringing in a wider range of participants, the process would
be more “democratic.”[18] This
assertion is often offered as self-evident; the more people participating in a
process, the more democratic it is. But this claim requires some unpacking. Broad
participation is not actually an end in itself, although agency staffers and
commentators often treat it as one. Rather, the democratic value would seem to
consist in (at least) three subsidiary values. (a) To the extent that agency
rules reflect judgments about values or preferences rather than technical
problems with right and wrong answers, they are arguably more legitimate if
they reflect popular input. An agency decision that reflects what the public as
a whole would do (or, perhaps, what the public as a whole would do if it were
fully informed and thought about the problem conscientiously) is “democratic,”[19]
and fuller participation is necessary, if not sufficient, for the agency to
know what that is. (b) Broader popular participation will produce a more
informed citizenry, which in turn will be able to hold political actors
accountable through mechanisms other than
participation in rulemaking. (c) Broader participation will produce greater
buy-in regarding the resulting regulations, which in turn will lead to fuller
and less costly compliance.
The third
anticipated value of broader and more dialogic participation was that it would,
simply, produce better rules. This might happen for several reasons. For one
thing, rulemakers would have access to more and better information. As Cary
Coglianese wrote: “[T]he local sanitation engineer for the City of Milwaukee […]
will probably have useful insights about how new EPA drinking water standards should be implemented that might not be
apparent to the American Water Works Association representatives in Washington,
DC.”[20]
Here e-rulemaking optimists invoke, expressly or otherwise, a good deal of
contemporary writing about “dispersed knowledge” and “the wisdom of crowds.”[21] Second,
e-rulemaking might produce better rules because the process would allow for a
fuller vetting of public submissions. Having comments online and readily
accessible could result in comments on comments, reply periods, or other
exchanges that would test and refine public submissions in a way that does not
occur when everyone submits directly, at the last minute, without the
opportunity to see what others have submitted.[22]
E-Rulemaking
is indisputably an improvement over the paper-based process it replaced. First,
it is easier to submit a comment. This is a plus; it is hardly a
transformation. Printing out and mailing a document is not that hard either.
Much more
important is the ready availability of materials contained in the rulemaking
docket. Having that material available online improves the ability of
commenters to review and respond to it more effectively, and this can only be a
good thing. The point is not just that the new regime is more efficient, though
it is that.[23]
It also makes for higher quality comments. No one has proved this, but it is supported by a survey of agency staff by
Jeffrey Lubbers[24]
and informal conversations, and it is what one would expect.
Widely
available rulemaking dockets are of use to others besides commenters. Rulemaking
dockets contain a lot of good stuff. One of the things that regulations.gov has
made steady and impressive progress on over the years is making it easier to
find material on its site. One major breakthrough was full-text searching. In
2012 the site introduced a set of Application Programming Interfaces (APIs) to
enable third parties to search and retrieve material on the regulations.gov
site. The enhanced availability of rulemaking materials is not an aspect of
notice-and-comment rulemaking per se, and for present purposes it suffices just
to note the expansive literature on the utility of making government-held information
widely available.[25]
In addition,
an online docket makes it easier for the agency staff to do its job. No one has to worry that
something has been checked out, more than one person can use a document at a
time, people stay out of each other’s way.[26] And
the docket is available to agency staff who do not work at headquarters.[27]
While the mechanics of notice-and-comment
rulemaking have changed, and very much for the better, the nature of the rulemaking process remains essentially what it was
before the move online. E-rulemaking’s grander anticipated benefits have not
yet come to pass.[28]
The
traditional, sophisticated participants are doing what they have always done.[29] Their
comments are lengthy, well-researched, often prepared by counsel, and generally
submitted right at the close of the comment period. (The last-minute submission
is generally seen as being in part just a function of human nature, but also
the result of the desire to avoid subjecting one’s comments to review and critique
by other commenters.[30]) The
fact that the comments are posted on-line or attached to an email is no real
change at all.
In addition,
e-rulemaking has not proven more dialogic or collaborative than the traditional
paper process. The FCC makes use of reply or rebuttal comment periods as a
matter of course.[31] But
the FCC largely stands alone. Use of reply periods remains quite rare and,
strikingly, has not significantly increased with the move of rulemaking
on-line.[32]
Commenters still write their comments in isolation and most submit them right
before the deadline; the agency still responds only in the preamble to the
final rule. Instead of providing a shared venue for collaboration and
discussion, electronic rulemaking, in Peter Shane’s incisive description,
“resembles a global suggestion box, appended to an electronic library.”[33]
Most
strikingly, and perhaps most disappointingly, with isolated exceptions there
has not been a meaningful shift in effective lay participation. Lay
participation has shown isolated increases in quantity. But that increase has
been haphazard, manipulated, uninformed, and largely unhelpful to rulewriters. Most
rulemakings remain below the radar; very few produce a huge outpouring of lay
comments.[34]
Moreover, though the matter is disputed, lay comments have by and large not
been especially helpful or influential. Few people are aware of the
opportunity; of those who are, few bother to participate; and few of those who
participate manage to submit something useful or persuasive. Some simply assert
a bottom line.[35]
Some reflect engagement and sincerity, but do not actually say anything.[36] Some
are informed and intelligent, but just do not tell the agency anything it does
not already know.[37] Some
urge the agency to take an alternative approach that is not within its
authority.[38]
And, of course, as one would predict based on reading other on-line comments
sections, many are really, really angry and abusive.[39] What
lay comments generally fail to do is
provide agency staff what they most need: concrete examples, specific
alternatives to the proposal, an awareness of statutory limitations, hard data
or actual experience, and direct responses to specific questions the agency has
asked.[40]
Finally, in
those rulemakings that have generated extensive lay participation the comments
have been dominated by duplicative submissions resulting from organized
“astroturf” campaigns. NGOs urge their members to submit a comment, which
really means just clicking a button, not because
they have something valuable to say but because it is important to show support
for or opposition to an agency proposal. The following email solicitation is
typical:
“When we asked you to
stand up against oil & gas climate pollution, you delivered. You stood with 178,913 other EDF
activists in supporting the EPA's efforts to put strict limits on oil & gas
climate pollution from facilities to be built in the future.
Now, we need you to lend
your voice again – this time, to protecting America's most beautiful vistas
from oil & gas pollution.
Take action today, and
support strong limits on oil & gas climate pollution on federal lands [...]
It has been 30 years since the Department of
Interior's Bureau of Land Management (BLM) has updated the methane rules
protecting these precious public lands – and in the meantime, we have made
staggering technological advancements. We
can cost-effectively cut this problem almost in half with these new
technologies.
BLM has proposed a rule
putting strict limits on this pollution – but we're running out of time to
ensure these regulations are strengthened and finalized.
We need our most dedicated climate activists, now
more than ever. Please, stand with us again, and add your name in favor of
protecting America’s landscapes from oil & gas climate pollution!
Thank you for standing with us,”
Clicking
highlighted portions of the text takes the recipient to a comment page. A
couple of clicks, and the deed is done.
The language
of this appeal is striking. It is the standard rhetoric of the political
campaign or any on-line vote gathering. It is not about facts, arguments, or
legal requirements. It is about a show of support. What is it that the
individual commenter offers? “Support.” What is it that the individual
commenter adds? “Your name.” What gives these comments weight? Sheer numbers – the
“178,913 activists” who “stood up.”
Tens or
hundreds of thousands of near-identical submissions are a testament to the
costlessness of submitting a comment. But such “click-through democracy,” in
Stuart Shulman’s phrase, may be a “harbinger of a slide into a technological
arms race predicated on plebiscite-style governance.”[41] Even
e-rulemaking’s greatest enthusiasts acknowledge that “the digitization of
citizen participation practices has not worked well. […] Online participation
is evolving from notice-and-comment into ‘notice and spam.’”[42]
Indeed, there
can be something upside-down about this process. Consider this comment,
submitted in response to a Bureau of Land Management proposal to update rules
regarding the flaring of natural gas on public lands:
“Having attended two public meetings related to
Methane flaring, I feel like I am now adequately informed. Thank you, BLM for
staging the meetings.
I, wholeheartedly, agree with the need to monitor
methane dispersal into our atmosphere. As a homeowner using natural gas to heat
my house in the cold New Mexico winters, I acknowledge that various Petroleum
distillates are a resource that ought not be wasted. Therefore, I applaud the
methane waste prevention measures.
As a resident of San Juan County, New Mexico, I
realize I live in an eggs-in-one-basket economy. I hope our economic leaders
will take measures to diversify our economy.
Again, I support the Methane Rules. They are long
overdue. Thank you.”[43]
The traditional,
and essentially correct, understanding of notice-and-comment is that commenters
have information or insight that the agency does not. Here, instead, the agency
informs members of the public, who then, duly informed, express “support” for
what the agency proposes without telling the agency anything at all that it
does not already know.
Not
surprisingly, then, almost all observers have concluded that lay comments
generally and mass comments in particular have not been influential. Agencies
“occasionally acknowledge the number of lay comments and the sentiments they
express [but] they very rarely appear to give them any significant weight.”[44] Rulewriters may even resent such
submissions.[45]
What, then,
can and should be done to achieve the appropriate democratic aspirations of
notice-and-comment rulemaking? The fundamental challenge is to create a better
match between the inputs rulewriters need, the information commenters have, and
the technological means to move one to the other. In essence, two approaches
have been attempted, and neither has been a triumph. One is to simply move the
traditional paper notice-and-comment process on line. As discussed, that is an
extremely valuable change, but one thing it does not do is enable effective participation by stakeholders or the
general public. The barriers to such participation go far beyond simply not
being aware of the rulemaking or not having access to materials in the docket
or not being able to pay for postage.
The second
approach is to ask for different kinds of input from lay commenters. In
essence, to ask, implicitly or explicitly, for a vote. But no one actually
thinks that notice-and-comment should be a referendum.
So, challenge
is how can we get better participation from people with something to offer and
less clutter. That means focusing on the quality of submissions more than their
quantity and enabling historic outsiders with relevant knowledge to effectively
participate. The tools of web 2.0 can be harnessed to this end, but only if
appropriately targeted. Herewith some more modest suggestions.
Agencies
should use social media to inform the public about agency activities, the
rulemaking process in general, and specific rulemakings. Agencies should take
an all-of-the-above approach to alerting potential participants to upcoming
rulemakings, posting to its website and blog and sending notifications through
multiple channels. Social media provide a more effective means to reach
interested persons that have traditionally been under-represented in the
rulemaking process.
Agencies
sometimes tweet general requests for the public to submit ideas. To pick a
random example, on February 1, 2013, EPA tweeted:
“It’s time for #EPAtips again! What are
some unexpected ways you’ve found to save energy this winter?”
Responses
could be tweeted or posted on Facebook. The same day, it tried again:
“Tell us some unexpected ways you’ve found to save
energy this winter. Use hashtag #EPAtips. We’ll retweet our
favorites.”
The next day:
“Last chance to share your #EPAtips with us! What are
some unexpected ways you’ve found to save energy this winter?”
And then two
days later:
“Thanks to everyone who shared their #EPAtips with us!”
The exuberant
(or desperate) exclamation marks notwithstanding, it appears that not a single
“unexpected way to save energy” was submitted. So, there is nothing magic about
a social media platform. The “open call” is almost always doomed to failure – too
imprecise, often insincere, and invisible to almost all those with something
useful to contribute.[46]
Nonetheless,
social media may be particularly useful with regard to agency agenda-setting. That
is, its most important applications to rulemaking may lie outside the notice-and-comment process. Social media have much,
perhaps most, to offer not during the actual comment period, but prior to issuance of the NPRM (and
possibly after promulgation of the
final rule). This is a period in which the agency’s scope of inquiry is
extremely broad, the questions more open-ended, and the interchange less
formal.[47]
The point here
is three-fold. First, as a generalization, it is probably fair to say that the
lay public is better at identifying problems than at identifying solutions.
Such input is especially relevant at the early stages of the rulemaking
process, when the agency needs to understand the existing state of affairs,
what’s working and what isn’t, where improvements must be made, and so on: in
short, what’s the problem?
Second, for all interested persons, lay and expert
alike, a looser, more dialogic exchange may be especially useful in at an
early, problem-identifying stage.
Third, time
and again we have seen that members of the general public tend to set forth a
bottom line, a belief or viewpoint rather than an argument or information. The
APA anticipates that commenters will provide “data, views, or arguments.”[48] Rulewriters
tend to want to hear data and arguments more than views, and figuring out
whether, when, and why “views” should matter is complex.[49] But
one can at least say that “views” matter most with regard to agenda-setting. Figuring
out the dose-response curve for a carcinogen requires data; figuring out
whether a proposal is consistent with the relevant statute requires argument;
but figuring out which problems to tackle should be influenced, at least in
part, by what the public considers pressing. This is not the place to rehash
longstanding debates regarding whether government should, for example, pursue
the risks that concern people the most or those that experts say pose the
greatest threat. But if one holds the
former view, then it is appropriate to consider the bottom-line sort of input
social media may produce at the agenda-setting stage even if it is unhelpful at
the rule-formulation stage. (And, of course, if one holds the opposite view,
then more exclusive reliance on experts is equally critical at both stages.)
The use of
social media may not be appropriate and productive in all rulemakings. Rulemakings
that primarily involve questions of statutory interpretation, technical
knowledge, or scientific expertise are poorly suited to the kinds of responses,
and responders, usually produced by social media. On the other hand, social
media may be valuable when an agency seeks to ascertain the perceptions or
reactions of regulated parties or, even more, the general public to a proposed
rule.
For certain
sorts of questions, likely a minority of rulemakings, the crowdsourcing model
could be promising. There will be particular rulemakings where an agency might
benefit, in a crowd-sourced sort of way, in getting a whole bunch of volunteers
to try things. The CFPB’s Know Before
You Owe rulemaking[50]
is an example. The agency sought to determine which of two disclosure forms was
more helpful and comprehensible. It did the obvious thing: it had a bunch of
people look at the forms and give their reactions. There are other settings
where that sort of direct feedback would be helpful. One could imagine, for
example, giving different groups different versions of a warning label, letting
each look at it and then take a little test about what they noticed, retained,
and understood.
Agencies
should not assume that all rulemakings will be enhanced by a crowdsourcing
approach. However, where public or user response is precisely the question to
be determined, direct submission to the public at large will provide useful
information and should be pursued.
While the
dispersed knowledge/crowdsourcing idea is easily oversold, a narrower version
is robust. Housed at the Cornell E-Rulemaking Initiative and led by Professor
Cynthia Farina of the Cornell Law School, Regulation Room is a website that
uses Web 2.0 approaches and tools to facilitate public discussion and feedback
in connection with federal agency rulemakings.[51] The
site is conceived and operated by researchers from computing and information
science, communications, conflict resolution, law, and psychology. Its basic
goals are to improve the amount and quality of public participation in
rulemaking. An important conclusion is that the most useful lay comments will
come not from members of the general public but from individuals who possess
“situated knowledge.” “This knowledge is based on their on-the-ground
experiences with the kinds of problems, circumstances, or solutions involved in
the proposed regulation.”[52] Such
knowledge might reveal levels of complexity of which the agency was unaware,
hidden contributions to existing problems, possible unintended consequences of
particular proposed solutions, or ways of thinking about a problem that just
had not occurred to policymakers without day-to-day, on-the-ground experience.[53]
The lesson
here is generalizable, and is evident in the work of one of the leading
thinkers about technology and democracy, Beth Noveck. Professor Noveck’s latest
book, Smart Citizens, Smarter State,[54]
is a clarion call to greater public participation in governance. But the
essential premise is not that “the general public” always has useful things to
contribute nor that all issues should be put to a vote. To the contrary,
Noveck’s point is that governing institutions make far too little use of the
skills and experience of those inside and outside of government; “governing
requires the ability to curate quickly credible, specific, and relevant
information, to make hard decisions.”[55]
The goal of
e-rulemaking is to more fully capture such credible, specific, and relevant
information, not to solicit the views of random, self-nominating members of the
public.
[1] Kenneth Culp Davis, Discretionary Justice: A
Preliminary Inquiry 66 (1969). Or, as Professor Davis also wrote:
“Affected parties who
know facts that the agency may not know or who have ideas or understanding that
the agency may not share have opportunity by quick and easy means to transmit
the facts, ideas, or understanding to the agency at the crucial time
when the agency's positions are still fluid. The procedure is both democratic
and efficient.”
Kenneth Culp Davis,
Administrative Law Treatise (1972).
[2] See, e.g., Cass R. Sunstein, Democratizing Regulation, Digitally, 34 Democracy: A Journal of Ideas (Fall
2014) (“During the New Deal and since, some observers have expressed concern
that regulators are not directly accountable to the people, and have contended
that they may suffer from some kind of ‘democracy deficit.’ For such critics,
notice-and-comment rulemaking is an important way to legitimate the
administrative process, by increasing accountability and responsiveness.
Democratic participation is built into the very idea of notice-and-comment
rule-making.”).
[3] Home Box Office, Inc. v. FCC, 567 F.2d
9, 35-36 (D.C. Cir. 1977), quoted in Prometheus
Radio Project v. FCC, 652 F.3d 431, 449 (3d Cir. 2011).
[4] See, e.g., Barack Obama, Exec. Order
13,563, § 1(a), 76 Fed. Reg. 3821, 3821
(2011) (“Our regulatory system […] must
allow for public participation and an open exchange of ideas.”); Regulations.gov,
Public Comments Make a Difference,
http://www.regulations.gov/docs/FactSheet_Public_Comments_Make_a_Difference.pdf (assuring
visitors to federal government rulemaking portal that “public comments make a
difference” and “lend democratic legitimacy” to agency regulations).
[5] See, e.g., Marissa Martino Golden, Interest Groups in the Rule-Making Process:
Who Participates? Whose Voices Get Heard?, 8 J. Pub. Admin. Res. & Theory 245, 245-67 (1998); Wendy
Wagner, The Participation-Centered Model
Meets Administrative Process, 2013 Wis.
L. Rev. 671, 681-89 (detailing costs of participation in administrative
processes).
[6] As Richard Stewart
wrote in 1975:
“I recall a visit to the
offices of a major federal agency to inspect comments submitted in a major
rulemaking proceeding. The bound presentations of regulated firms and a few
well-heeled public interest litigants were in frequent use; a large heap of
other comments, generally ill-informed, from the citizenry at large had been
dumped in a corner and ignored.”
Richard B. Stewart, The
Reformation of American Administrative Law, 88 Harv. L. Rev. 1669, 1775 n.503 (1975).
[7] See text at supra note 3.
[8] The
developments are usefully summarized in Cary Coglianese, E-Rulemaking: Information Technology and the Regulatory Process, 56
Admin. L. Rev. 353, 363-66 (2004).
[9] E-Government Act of
2002, Pub. L. No. 107-347, 116 Stat. 2899 (codified in scattered sections of 44
U.S.C.).
[10] 44 U.S.C. §
3501 Note.
[11] Id.
[12] Id.
[13] See generally Curtis Copeland,
Congressional Research Service, Electronic
Rulemaking in the Federal Government (Oct. 16, 2007) (detailing the
funding, technological, coordination, and political obstacles that slowed
creation of a central FDMS).
[14] Michael Tonsing, Two Arms! Two Arms!
E-Government Is Coming!, Fed. Law., July 2004, at 19 (“The
Electronic Rulemaking Initiative […] has dramatically transformed the federal
rulemaking process by enhancing the public's ability to participate in
regulatory agency decision-making.”).
[15] Beth S.
Noveck, The Electronic Revolution in
Rulemaking, 53 Emory L.J. 433
(2004); Stephen M. Johnson, The Internet
Changes Everything: Revolutionizing Public Participation and Access to
Government Information through the Internet, 50 Admin. L. Rev. 277 (1998).
[16] See, e.g., Neil Eisner, “Policy
Direction & Management” (Center for the Study of Rulemaking, Mar. 16, 2005),
available at
http://www.american.edu/rulemaking/panel3_05.pdf (Department
of Transportation official endorsing reply periods and anticipating that they
“will be tremendously increased as more agencies have electronic, Internet-accessible
dockets”).
[17] Barbara H.
Brandon & Robert D. Carlitz, Online
Rulemaking and Other Tools for Strengthening our Civil Infrastructure, 54 Admin. L. Rev.
1421, 1429-30, 1462-71 (2002); David Schlosberg et al., Democracy and E-Rulemaking: Web-Based Technologies, Participation, and
the Potential for Deliberation, 4 J.
Info. Tech. & Pol. 37, 49–51 (2007).
[18] See, e.g., Christine S. Meers, The Department of Transportation’s Docket
Management System: A Tool for a Collaborative Democracy, in Building Knowledge Management Environments for
Electronic Government (Ramon C. Barquin ed. 2001).
[19] See John M. de Figueiredo & Edward
D. Stiglitz, Democratic Rulemaking,
in The Oxford Handbook of Law and
Economics (forthcoming) (suggesting two possible benchmarks against
which to measure how “democratic” rulemaking is: “legislative matching”
(referring to how closely the rule matches what Congress would have done) and
“electorate matching” (referring to how closely the rule matches what the
median voter would have done)).
[20] Cary
Coglianese, Weak Democracy, Strong
Information: The Role of Information Technology in the Rulemaking Process, in Governance
and Information Technology: From Electronic Government to Information
Government 101, 117 (Viktor Mayer-Schonberger & David Laze eds.,
2007).
[21] As President
Obama put it on his first day in office: “Knowledge is widely dispersed in
society, and public officials benefit from having access to that dispersed
knowledge. Executive departments and agencies should offer Americans increased
opportunities to participate in policymaking, and to provide their Government
with the benefits of their collective expertise and information.”
Memorandum on
Transparency and Open Government, 74 Fed.
Reg. 4685, 4685 (Jan. 21, 2009).
[22] Other
enumerations of expected benefits of more open and inclusive policymaking are
possible. Consider this overlapping but slightly different list:
– Greater
trust in government.
– Better
outcomes at less cost.
– Higher
compliance.
– Ensuring
equity of access to public policy making and services.
– Leveraging
knowledge and resources.
– Production
of more innovative solutions.
OECD, Directorate for Public
Governance and Territorial Development, Focus on Citizens: Public Engagement
for Better Policy and Services 23-24 (2009).
[23] The Federal
Docket Management System reportedly saved the government $30 million over five
years when compared to paper-based docketing. Office of Mgmt. & Budget,
Exec. Office of the President, Report to
Congress on the Benefits of the E-Government Initiatives 10 (2010), available at:
http://www.whitehouse.gov/sites/default/files/omb/assets/egov_docs/FY10_
E-Gov_Benefits_Report.pdf.
[24] See
Jeffrey
S. Lubbers, A Survey of Federal Agency
Rulemakers’ Attitudes About E-Rulemaking, 62 Admin. L. Rev. 451 (2010). Lubbers asked agency staff about
sixteen activities that e-Rulemaking might have made easier or harder a
compared to a paper-based process. Strikingly, respondents reported that each of the sixteen tasks had become
easier. The second highest of the sixteen was: “disseminate information
relevant to the agency’s proposed rulemaking (for example, studies, economic
analyses, legal analyses), so as to generate more informed commenters.” Id. at 461.
[25] See,
e.g., Jerry Brito, Hack, Mash, and Peer: Crowdsourcing
Government Transparency, 9 Colum.
Sci. Tech. L. Rev. 119 (2008); David Robinson et al., Government Data and the Invisible Hand,
11 Yale J.L. & Tech. 160
(2009); Richard Thaler, This Data Isn’t
Dull. It Improves Lives, N.Y. Times,
March 13, 2011, at B5.
[26] Indeed, the task that scored highest in the Lubbers survey – that is,
the task for which there was the highest level of agreement that it had been
made easier by the move on-line – was: “Coordinate the rulemaking internally by
allowing many people to look at the same rulemaking docket without getting in
each others’ way.” Lubbers, supra note
24, at 461.
[27] A Department
of Transportation staffer reports that in the bad old days “one DOT
organization found it necessary to fly a staff member from Boston to
Washington, D.C., several days each week just to locate and review docketed
material housed throughout the nine separate docket offices.” Christine Meers, Taking Government to the People
(unpublished manuscript), quoted in
Thomas C. Bierle, Discussing the Rules:
Electronic Rulemaking and Democratic Deliberation 14 (April 2003)
(Resources for the Future Discussion Paper 03-22), available at:
[28] Useful
overviews include Cary Coglianese, Enhancing
Public Access to Online Rulemaking Information, 2 Mich. J. Envtl. & Admin. L. 1 (2012); Cynthia R. Farina
et al., Rulemaking 2.0, 65 U. Miami L. Rev. 395, 417-19 (2011).
[29] See, e.g., Kimberly D. Krawiec, Don’t “Screw Joe the Plummer”: The
Sausage-Making of Financial Reform, 55 Ariz.
L. Rev. 53 (2013) (describing the gap between lay and professionally
prepared comments in an individual rulemaking).
[30] Steven J.
Balla, Public Commenting on Federal
Agency Regulations: Research on Current practices and Recommendations to the
Administrative Conference of the United States 30-33 (March 15, 2011), available at http://www.acus.gov/sites/default/files/COR-Balla-Report-Circulated.pdf.
[31] FCC Rules of
Practice, 47 C.F.R. § 1.415(c) (“A reasonable time will be provided for filing
comments in reply to the original comments, and the time provided will be
specified in the notice of proposed rulemaking.”).
[32] Steven J.
Balla, Public Commenting on Federal
Agency Regulations: Research on Current Practices and Recommendations to the
Administrative Conference of the United States 9-10 (2011).
[33] Peter M.
Shane, Turning GOLD into EPG: Lessons from
Low-Tech Democratic Experimentalism for Electronic Rulemaking and Other
Ventures in Cyberdemocracy, in Online
Deliberation: Design, Research, and Practice 149, 154 (Todd Davies and
Seeta Peña Gangadharan eds. 2009).
[34] Cary
Coglianese, Citizen Participation in
Rulemaking: Past, Present, and Future, 55 Duke
L.J. 943, 952-58 (2006).
[35] For example,
these two comments, reprinted here in their entirety (as are those in the
following footnotes). “Please DO NOT allow smoking of electronic cigarettes on
aircraft.” DOT-OST-2011-0044-0335. “regulate”. FSOC-2010-0002-1094 (regarding
the Volcker rule) (capitalization and punctuation, or lack thereof, in the
original).
[36] “I am very
sure that the effects will pronounced more on both sides but i guess it is
debatable. It will be interesting to see what others’ view point is on the
electronic reporting effects on the public and the government.”
http://www.regulations.gov/exchange/node/509 (regarding
the effects on state and local governments of requiring mandatory electronic
reporting as part of water pollution permits). “Technology is a dual edged
sword and could work to our advantage or disadvantage depending on the level of
responsibility that we have when we use it.”, http://www.regulations.gov/exchange/node/65 (same, in
response to a quite focused question about what specific technologies
governments would need in order to received electronically reported
information).
[37] “The rocky
mountain wolf is still recovering across a broader range, I think delisting in
distinct places (e.g., Wyoming) will limit if not derail this process.” FWS-R6-ES-2011-0039-1316
(delisting wolf under Endangered Species Act). “I urge you to make the interim
ban on texting by drivers of commercial trucks and buses permanent. It’s bad
enough that cell phone usage is allowed. Texting has to be outlawed permanently.
Control of large vehicles cannot be maintained if the driver does not keep
his/her eyes on the road all the time.” FMCSA-2010-0029-0005 (regarding
proposed ban on texting while driving a commercial vehicle).
[38] “Dear
EPA, I
support the proposed new rules that would increase national fuel economy
standards to 54.5 miles per gallon by the year 2025 and I commend the Obama
administration for continuing to pursue strong, clean vehicle standards that
will reduce our dangerous dependence on oil and cut global warming pollution,
while creating much-needed jobs and saving drivers money at the pump.
Additionally, these landmark standards remind us of the valuable role that the
federal government can play in strengthening the economy and protecting the
planet. We cannot afford to delay in confronting the threats of climate change
and our dangerous oil dependence. I urge you to finalize the strongest possible
standards free of harmful loopholes.
In addition, Mr.
President, I ask you to take steps or measures to get the ball rolling on
alternate sources of energy, such as solar power. The United States has always
been a leader in research and development of new technologies, and there is no
reason why our country should or even consider relinquishing that leadership.
You have said that it will create new jobs, and I think that it makes all the
sense in the world. The Chinese must not eat our breakfast, lunch, dinner, much
less pie and coffee.
Thank you, Mr.
President.”
EPA-HQ-OAR-2010-0799-2422 (regarding automobile fuel economy
standards)
[39] “Morons,
morons – please pay attention – Killing 90% of the wolve population disrupts
the eco system as we know it. just like fracking is causing earthquakes and
global warming, so is killing natures predators. For all the morons in
government – this is not the only solution – Get your heads out of your asses
and come up with an intelligent solution. Stupid! Stupid! Stupid!!!! Virtually
every one in government is plain stupid with no common sense to fix our nations’
problems.” FWS-R6-ES-2011-0039-2221.
[40] See, e.g., Mariano-Florentino Cuéllar, Rethinking Regulatory Democracy, 57 Admin. L. Rev. 411, 443 (2005) (noting
that “individual commenters came across as being angry and exasperated,”
“failed to understand the distinction between the regulation and the statute,”
and rarely offered “anything remotely resembling a concrete proposal”). Cuellar
identified five criteria for what makes rulewriters take comments seriously:
“(a) Did the commenter
distinguish the regulation from the statutory requirements?; (b) Did the
commenter include at least a paragraph of text providing a particular
interpretation of, and indicating an understanding of, the statutory
requirement?; (c) Did the commenter propose an explicit change in the
regulation provided in the notice of proposed rulemaking (NPRM)?; (d) Did the
commenter provide at least one example or discrete logical argument for why the
commenter's concern should be addressed?; and (e) Did the commenter provide any
legal, policy, or empirical background information to place the suggestions in
context?”
Id. at 431. Not
surprisingly, lay commenters generally compare poorly with ones with
professional training on these criteria.
[41] Stuart W.
Shulman, Click-Through Democracy, 20 USA Servs. Intergovernmental Newsletter
42, 42 (2007).
[42] Beth S.
Noveck & David R. Johnson, A Complex(ity) Strategy for Breaking the Logjam,
17 N.Y.U. Envtl. L.J. 170, 179
(2008).
[43] Comment on Bureau of Land Management, Waste
Prevention, Production Subject to Royalties, and Resource Conservation, FR Doc
# 2016-01865, ID BLM-2016-0001-0014,
https://www.regulations.gov/document?D=BLM-2016-0001-0014.
[44] Nina A.
Mendelson, Rulemaking, Democracy, and
Torrents of E-Mail, 79 Geo. Wash. L.
Rev. 1343, 1343, 1346, 1363-64 (2011).
[45] David
Schlosberg et al., Deliberation in
E-Rulemaking? The Problem of Mass Participation, in Online Deliberation: Design, Research, and Practice 133, 143
(Todd Davies & Seeta Peña Gangadharan eds., 2009); Mendelson, supra note 44, at 1363.
[46] Beth Simone Noveck, Smart Citizens, Smarter
State: The Technologies of Expertise and the Future of Governing (2015) (Kindle Location 586) (noting that
the few successful open calls “are random and serendipitous. For every open
call that works, there are dozens that are never seen by those who could
help.”).
[47] Negotiated
rulemaking (“reg neg”) provides a ready analogy. Under the Negotiated Rulemaking
Act, the entire reg neg process is a mechanism for developing a proposed rule. The
proposed rule is then published in the Federal
Register and the ordinary notice-and-comment process takes place. Use of
social media differs from regulatory negotiation in important respects. There
are, ideally, many more participants and the idea is not all to reach a
mutually acceptable compromise. But the two share important elements. Both open
up the traditional rulemaking process, create a more dialogic exchange, and
have a slightly awkward fit with the traditional process. Agencies resolved
that awkwardness for reg neg by having the whole process take place before the
NPRM, and Congress took the same tack. See
Negotiated Rulemaking Act of 1990, Pub. L. No. 101-648, 104 Stat. 4969, codified at 5 U.S.C. §§ 561-70. Similarly,
agencies would be unconstrained by rulemaking requirements when gathering input
via social media prior to the NPRM.
[48] 5 U.S.C. §
553(c).
[49] See generally Michael Herz, “Data, Views, or Arguments”: A Rumination,
22 Wm. & Mary Bill of Rights J.
351 (2013).
[50] Integrated Mortgage Disclosures Under the
Real Estate Settlement Procedures Act (Regulation X) and the Truth in Lending
Act (Regulation Z), 77 Fed. Reg.
51,116 (2012) (to be codified at 12 C.F.R. pts. 1024 & 1026).
[51] The project’s
useful self-description is available at http://regulationroom.org/about/. See also Cynthia R. Farina et al., Rulemaking in 140 Characters or Less: Social
Networking and Public Participation in Rulemaking, 31 Pace L. Rev. 382 (2011).
[52]
Farina et al., supra note 28Erreur ! Le signet n’est
pas défini..
[53] Id.; Cynthia R. Farina & Mary J.
Newhart, Rulemaking 2.0: Understanding
and Getting Better Public Participation 16 (IBM Center for The Business of
Government 2013).
[54] Noveck, supra note 46.
[55] Id. at Kindle Locations 2006-07.