At a recently hosted event by the Administrative Conference of the United States, experts discussed strategies to broaden public involvement in policymaking. The conversation focused on ways to uplift voices from various backgrounds and create new opportunities for individuals across all walks of life to get involved in changes that could directly affect their communities.
The dilemma of mass comments presents a tricky question: how can agencies keep up with the staggering workload associated with rulemakings that generate tens of thousands of submissions? It is an issue ripe for exploration.
The rulemaking process is essential to our democracy, but it has practical benefits as well. By engaging with the public in a meaningful way, agencies can create regulatory changes that truly make an impact on society and empower citizens while doing so. We should look to maximize the advantages of engagement—gathering insights into what real people need from regulations and building a supportive factual record for proposed rules—to ensure everyone's voice matters when creating effective regulation.
Regulatory actions can have far-reaching consequences, yet many of the people impacted by a rule are left out of the discussion. While special interests dominate proceedings in the Federal Register and often have their views heard first, we must strive to ensure those directly affected as well as subject matter experts also get an opportunity to be part of this important process.
Despite their obligation to serve the public interest, it appears as though various regulatory bodies are disproportionally influenced by industry representatives. In fact, a 2011 study uncovered that over 4 out of 5 comments on hazardous air emissions were submitted by corporate entities. Moreover, an evaluation of OIRA's rulemaking process showed that nearly three quarters of its time was spent consulting with business groups rather than members of the general population.
Todd Tucker and Raj Nayak revealed in their 2020 paper that the notice-and-comment rulemaking process is unfairly weighted towards privileged insiders. Others have noted that corporations seem to hold a disproportionate amount of sway over regulatory proceedings - despite consumers, environmentalists, workers and other progressive groups all having the same legal rights under Administrative Procedure Act regulations.
When it comes to potential legislation, the voices of those who would be most directly impacted or possess relevant knowledge seem to go unheard. Sadly this lack of involvement is all too common - however there's no denying that we must strive for a system where everyone has an equal chance at being heard.
For Medicaid rulemakings, the voices of Medicaid recipients, and the social workers or other professionals who assist them, should be heard. When EPA seeks to rewrite rules about hazardous emissions, the communities that will be impacted—often communities of color—should not have to rely on the Federal Register for the notification of their opportunity to inform the rulemaking process.
To ensure effective regulation, government must tap into the power of public knowledge. But to do this, two major steps need to be taken: opening up access to regulatory proceedings so that citizens can get involved and providing better data for policymakers' decisions. By implementing these changes promptly – we could see a dramatic shift in how our regulations are made.
Agencies must identify constituencies beyond the regulated parties. Who is the rule meant to protect? Whose job tasks will be affected by a proposal or rule change? Who might have knowledge or data that would be useful to the agency?
Agencies must also give these constituencies a sense that their contributions will be useful and that they will be heard. Indeed, perhaps the most important steps an agency can take are to tell people what kind of information will be useful and then demonstrate a good-faith willingness to listen to the information provided.
Taking affirmative steps to solicit participation also means meeting people where they are. Although the usual commenters may monitor federal websites for comment opportunities, most people, even people who want to comment, do not.
At Democracy Forward, we regularly conduct outreach about regulatory engagement and frequently find that organizations are not aware of comment opportunities relevant to them. In a recent example, we heard from an organization of civic engineers and experts who erroneously believed a Request for Information (RFI) they wanted to respond to was never issued simply because they had not seen it posted. Although the RFI had been published in the Federal Register, it had not been posted anywhere readily accessible to the organization.
To exacerbate the issue, GSA has provided no standards that agencies can use to ensure that their rulemaking dockets are accessible and navigable to ordinary users. The result is that the burden of participating in the rulemaking process is unreasonably high for the ordinary person. It does not have to be this way.
Not only is the current design of Regulations.gov unacceptable under modern web design principles, but also it is unacceptable under best practices guidance published by GSA itself and circulated by other agencies.
GSA should learn how public users understand and use the site through user experience research and should redesign the site according to standard usability metrics, such as the number of clicks necessary to complete a task or the accessibility of information most frequently searched.
With President Biden's directive that customer experience be prioritized and enhanced, GSA has a chance to truly bridge the gap between public users and the rulemaking process. By centering user feedback in Regulations.gov design decisions, GSA can create an accessible website for all consumers affected by proposed regulations - from experts with specialised knowledge of regulatory affairs to citizens who may have limited technical understanding but still live through policies' outcomes every day. With this opportunity at hand, it is critical that we improve participation on Rules EGM as well as resolve any current issues hindering successful access so everyone nationwide can make their voices heard.
