Cary Coglianese, Heather Kilmartin & Evan Mendelson · June 2009
77 GEO. WASH. L. REV. 924 (2009)
Virtually every major aspect of contemporary life is affected by government regulation. For good or ill, the administrative process affects the food people eat, the water they drink, and the air they breathe. Economic activity depends on the appropriate regulation of key sectors such as energy, communications, and transportation. Health care and prescription drugs, international trade and corporate finance—the list of areas of social and economic activity affected by regulation truly is a long one. Indeed, the degree to which people enjoy important social and economic rights and experience equality of opportunity depends in large part on regulation.
Given the importance of regulation, the process by which rules are made has important implications for democratic values and the advancement of overall social welfare. Although many legal requirements governing the administrative process originate in legislation adopted by Congress, even more are created by administrative agencies themselves, headed by officials appointed by the President (with Senate confirmation) who exercise authority delegated to them by statute. As agency officials attempt to perform their roles as policymakers, they often interact with members of Congress and White House officials. But they also regularly face difficult decisions about whether and how to interact directly with a public that does not elect them, yet is greatly affected by their decisions.
The Task Force on Transparency and Public Participation was created to provide advice suitable for the new presidential administration in considering ways to improve the federal rulemaking process. The Task Force was created under the auspices of the Advancing the Public Interest Through Regulatory Reform Project established by OMB Watch, a Washington, D.C.-based organization interested in regulatory issues. The Task Force operated independently of OMB Watch, and Task Force members consisted of experienced professionals from outside OMB Watch with backgrounds in government service, business representation, nongovernmental organization advocacy, and academe. During the Task Force’s meetings in Washington, D.C., members discussed the role of transparency and public participation in the rulemaking process, specifically focusing on the ends that transparency and public participation serve. The meetings were geared toward developing a set of policy recommendations to bring the rulemaking process closer to the ends of substantive quality and procedural legitimacy.
This Article summarizes the result of those Task Force discussions. Part I focuses on the goals of the rulemaking process and how transparency and public participation fit within those goals. Part II sets forth specific policy recommendations for the new presidential administration. These recommendations are themselves organized into three categories: transparency, public participation, and strategic management.
