Nina A. Mendelson · July 2011
79 GEO. WASH. L. REV. 1343 (2011)
Bold claims have been made for democracy and federal administrative agency notice-and-comment rulemaking, now the dominant mode of administrative action. An agency’s public proposal of a rule and acceptance of public comment prior to issuing the final rule can help us view the agency decision as democratic, and thus essentially self-legitimating. “[H]aving administrative agencies set government policy provides the best hope of implementing civic republicanism’s call for deliberative decisionmaking informed by the values of the entire polity.” Moreover, “[r]ulemaking is comprehensible, relatively quick, and democratically accountable, especially in the sense that decisionmaking is kept aboveboard and equal access is provided to all.” Rulemaking has been described as “refreshingly democratic” and “the most transparent and participatory decision-making process” in the government, and we are proselytizing worldwide for the procedure.
Moreover, technological changes and the advent of e-rulemaking may have the potential to enhance—perhaps substantially—public understanding of and involvement in rulemaking. E-rulemaking is the use of technology to help facilitate public access to and participation in agency rulemaking. With respect to e-rulemaking, reformers hope for expanded public participation. Scholars have commented that “[p]articipation in rulemaking is one of the most fundamental, important, and far-reaching of democratic rights” and that e-rulemaking represents “online ‘deliberative democracy’” with the potential to “enlarge significantly a genuine public sphere in which individual citizens participate directly” in governmental decisionmaking. E-rulemaking can, for example, permit the public to more readily view the identity of commenters to the agencies and the content of comments. E-rulemaking can “enhance public participation . . . so as to foster better regulatory decisions . . . and greater support for those decisions by more involved regulatory and beneficiary communities.” Indeed, public participation, already high in some high-visibility, high-salience rulemakings, may be further increased by e-rulemaking. A 2008 blue-ribbon panel report to Congress and the President indicated that “comment activity on regulations.gov has been increasing at a very encouraging rate.”
As the prominence of administrative rulemaking—and e-rulemaking—as a means of creating policy increases, it is critical that we thoroughly consider what potential rulemaking may in fact have to make agency decisionmaking democratically responsive. These claims also warrant further examination because other ideas regarding how the administrative state might be considered democratically legitimate, including control by Congress or the President, have been subjected to sharp criticism. The extent of participation and the usability, transparency, and accessibility of e-rulemaking dockets are obvious issues, and they have received some attention in the 2008 blue-ribbon panel report.
In contrast to participation issues, the question of what agency officials do with the information they get from the public has received far less attention. To implement their responsibilities, agencies typically must resolve value-laden questions in addition to more technical and scientific questions. A significant number of public comments received by agencies seem to relate to these questions of value or policy. But agency officials appear to be discounting these value-laden comments, even when they are numerous.
This should raise significant concerns. If agencies are in fact systematically discounting these comments, it could undermine the potential of public rulemaking to serve as a source of democratic accountability. Agencies of course ought not formalistically treat public comments as a dispositive “vote.” But discounting these comments as inconsistent with a notion of rulemaking as a “technocratically rational” enterprise is also deeply problematic given the value-laden nature of many agency decisions and the democratic claims made for rulemaking. This Foreword is meant as an initial foray into the question of what agencies should do with mass public comments, particularly on broad questions of policy.
Part I discusses the extent to which congressional control, presidential control, and agency procedures themselves can be understood as ensuring that agency decisions can be understood as democratically responsive. In view of shortcomings in both congressional and presidential control, I underscore the need to focus closely on rulemaking procedures as a source of democratic responsiveness. The possibility that agencies may be systematically discounting certain types of public participation raises difficulties, and I present some examples. Part II, makes a preliminary case that agencies should more thoroughly consider public policy and values comments. Public comments filed with an agency in reaction to a concrete proposal would seem to have considerable potential as a source of information on citizen values and preferences. The presence of significant and numerous public comments in a rulemaking might at least trigger further investigation and deliberation by an agency. Alternatively, agencies should more candidly and publicly acknowledge that participation in rulemaking can serve only a limited function.
