Today’s Ad Law Reading Room entry is “Sidelining the Public,” by Anya Bernstein, Glen Staszewski, and Wendy E. Wagner, which was recently posted to SSRN and published by the Arizona Law Review. Here is the abstract:

This Article challenges the widely held view that Congress is the American government’s institution closest to the people, while administrative agencies are unaccountable and unresponsive. Providing a systematic, side-by-side institutional analysis, we compare the actual practices and capacities of these two institutions to engage affected publics in policymaking. We find that despite the democratic bona fides of an elected legislature, agencies possess superior capacities, more evolved practices, stricter rules, and stronger incentives for meaningful public engagement. Yet these capacities have been eroded—particularly over the last 50 years—by intensifying legal, political, and managerial obstacles. The Supreme Court and political actors have increasingly curbed agency authority, often in the name of democratic accountability. But as we show, agencies are uniquely positioned to enable democratic deliberation in policymaking. By taking stock of how Congress often fails to deliver meaningful public engagement—especially compared to agencies’ more developed participatory practices—this Article sounds the alarm, offering both a warning and a blueprint for institutional reform. Rather than sidelining agencies, we should recognize, protect, and strengthen their role as vital engines of public participation in legitimate and effective democratic governance. Supporting agencies’ ability to convene the public, we suggest, should be an all-of-government effort.

“Sidelining the Public” is a powerful summary of the case for administrative agencies as a site—perhaps the prime site—for meaningful public engagement. More broadly, it is an incisive diagnosis of the forces that have worked to cripple the federal government’s capacity for effective democratic governance. There’s much to like in it, but I particularly admired how the authors manage to weave together high political theory and on-the-ground practice (true ad law nerds will cheer at the appearance of the logical outgrowth doctrine).

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.