*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here.
Public notice of regulatory proposals, with an opportunity for public comment, has long been part of the federal regulatory process in the U.S., and I hope it always will be. Public comments inform regulatory choices at agencies, and often shed light on the benefits, costs, and unintended consequences of regulatory proposals. Our regulatory system is stronger because the public has an opportunity to comment on proposed rules before they become law, and because agencies are bound by law to consider those comments.
Public participation is a source of great anxiety for those who worry about possible democratic deficiencies of rulemaking. If these deficiencies exist, some would say that the administrative state must overcome them by infusing its regulatory apparatus with public participation. Unsurprisingly, though, collective action problems shape who takes advantage of participation opportunities and special interests (of all kinds) are more likely to engage, which leads to calls to stimulate greater and more equitable participation. And on and on it goes. It’s hard to know, using this frame, how much participation would be “enough.”
EO 14094 contains several policy changes related to public participation in the regulatory process. While the implications for democratic legitimacy are worth considering, I’ll focus on how and whether two of the changes can improve the government’s regulatory decisions.
First, public engagement on regulatory agendas and plans. Section 2(c) reads:
“To inform the development of regulatory agendas and plans, agencies shall endeavor, as practicable and appropriate, to proactively engage interested or affected parties, including members of underserved communities; consumers; workers and labor organizations; program beneficiaries; businesses and regulated entities; those with expertise in relevant disciplines; and other parties that may be interested or affected.”
The EO directs agencies on how to conduct this outreach:
“These efforts shall incorporate, to the extent consistent with applicable law, best practices for information accessibility and engagement with interested or affected parties, including, as practicable and appropriate, community-based outreach; outreach to organizations that work with interested or affected parties; use of agency field offices; use of alternative platforms and media for engaging the public; and expansion of public capacity for engaging in the rulemaking process.”
The subtext here is that agencies need to be proactive; a Federal Register notice issued by headquarters is not enough.
Second, Section 2(e), which focuses on meetings with OIRA. It makes a few changes but let me home in on one in particular, which is that OIRA shall:
“(i) Provide information to facilitate the initiation of meeting requests regarding regulatory actions under OIRA review from potential participants . . . who have not historically requested such meetings, including those from underserved communities; and (ii) Implement reforms to improve procedures and policies with respect to OIRA’s consideration of meeting requests . . . . These reforms may include . . . efforts to ensure access for meeting requesters who have not historically requested such meetings . . . .”
Essentially, this provision tells OIRA to do what it can to make it more likely that a broader range of people and groups request meetings with OIRA. Some context (and I recommend Jamie Conrad’s post on OIRA meetings, too): The public can meet with OIRA when it is reviewing a particular draft rule, but the meetings happen very shortly before draft rules are released to the public. This makes OIRA meetings an inopportune venue for conversations about regulatory priorities, overall regulatory direction, and similar bigger-picture issues. It’s not a great time to talk about the finer points, either. OIRA reviews rules after they’ve been drafted by the agency and the bulk of a rule is essentially complete; though of course there can be changes until the draft rule is out the door to the Federal Register. But given when they occur, OIRA meetings can end up being an opportunity for members of the public to express exasperation if other avenues to talk with the regulator failed – either because someone wants the rule to go farther or because they want it to be pared back. Indeed, the people and groups who avail themselves of opportunities to meet with OIRA are not all business interests (meeting records are available online) – though they do tend to be special interests, as Dr. Rachel A. Potter has shown.
These meetings have long been a lightning rod for criticism of OIRA and the federal rulemaking process. Jamie suggests that “the persistence of EO 12866 meetings is clear confirmation that, as current and former OIRAnians regularly report, OIRA staff find them to be valuable sources of information as they conduct 12866 reviews.” As an OIRA staffer I sometimes learned helpful things in these meetings, but I think this is overstated as an explanation for why the meetings happen. My view is that OIRA takes these meetings as a service to the White House, which receives meeting requests on lots of issues, regulations included. These meetings are going to happen no matter whether OIRA has a role or not, but with OIRA involved those White House meetings are given structure and at least some transparency. (This will elicit audible guffaws from OIRA’s critics, who want ever more transparency.)
So from my perspective, tasking OIRA with encouraging additional meetings is . . . fine . . . but it will not do a tremendous amount of good in terms of regulatory decisionmaking, because these meetings happen late in the game and can often be pro forma recitations of the meeting attendees’ public comments. OIRA staff resources are limited, and asking them to drum up additional meetings seems misguided.
What can make a much bigger difference, in my opinion, is Section 2(e)’s call for broader outreach from agencies as they set up their regulatory plans and agendas. Ideally this will be done both in the specific sense of the unified regulatory agenda, in which agencies try to predict what rules they’ll issue in the next 12 months, as well as the general sense of what it means to set a policy agenda. Public consultation on these plans could be very helpful, especially at the beginning of an administration, because every administration needs to cope with resource constraints. As current OIRA Administrator Ricky Revesz wrote with Bethany Davis Noll, “a one-term president has only half a term to promulgate long-lasting durable policy.” There’s just never enough time for every administration to make all of the changes they would like; so a well-run public engagement process could allow the public to play a role in prioritizing and shaping these plans with an eye towards lots of considerations including equity and distributional outcomes.
Adding public engagement upstream is a way to invite the public to say: “more of this, less of that.” As a practical matter, the best time for this kind of input is at the beginning of the sometimes very lengthy regulatory process, not after a voluminous draft regulation has already been produced. And this kind of public engagement just might enhance democratic accountability, too.