When French political philosopher Alexis de Tocqueville toured the United States nearly 200 years ago, he famously marveled at the degree and diversity of the American people’s civic engagement. Through a recent, little-noticed guidance, the Biden administration is now working to further infuse this unique tradition into one of our nation’s most important governing institutions: the federal regulatory system.
The White House guidance’s recommendations will be essential for empowering ordinary people to shape the policies we care about, whether it’s keeping our drinking water clean or protecting our wallets against predatory banks.
Since our nation’s founding, the federal regulatory system has played a critical role translating congressional legislation into concrete policies that improve our lives by making us more secure and promoting a fairer economy. Significantly, members of the public have been instrumental in this task, working side by side with our public servants at every stage of implementation.
Despite this, the regulatory system is not yet achieving its full democratic potential. As our new research shows, the primary vehicle for public participation — the “notice and comment” process through which agencies invite members of the public to offer their views on how to improve rules under development — is failing to meaningfully engage most members of the public, particularly individuals and small groups from structurally marginalized communities.
In contrast, over the last half century or so, this process has evolved to become more responsive to the commenting strategies of well-resourced sophisticated stakeholders, such as corporations, trade associations and national advocacy organizations.
Specifically, our research — which involved analyzing more than 52,000 public comments for five recent climate and energy regulations — found a massive “participation gap” between individuals and more sophisticated repeat players. This “two-tiered” nature of participation is important because it defines what type of information agencies receive and whose interests are being heard.
One noteworthy manifestation of this participation gap is that sophisticated participants routinely submit voluminous comments — in some cases, running hundreds of pages — replete with lengthy appendices of reports, scientific research and studies. These parties “pack the record” in this manner with an eye toward subsequent litigation.
Needless to say, only the best-resourced stakeholders engage in this kind of behavior. To make matters worse, these longer, technical comments tend to crowd out the voices of individuals and smaller community-based organizations by dominating agencies’ attention.
At the same time, notice-and-comment, in its current form, is ill-equipped to account for the lived experiences and situated knowledge that individuals are uniquely capable of providing. Even though individuals submit the vast majority of comments — 97 percent overall, according to our results — they usually do so anonymously (67 percent of individuals’ comments) or through mass comment campaigns (99 percent of individuals’ comments).
These comments tend to be short, merely indicating generic support or opposition for a given proposal. Even if individuals and communities had the capacity to provide more meaningful and contextualized information, it is unlikely that agency rulemakers would properly account for it, given that prevailing judicial doctrines only require them to respond to more technical issues of science or law.
Nevertheless, as the Biden administration’s new guidance recognizes, the unique input that individuals and communities can provide is essential. Not only does it yield better quality regulatory decisions, it also helps restore trust between the people and their government.
This is why the new guidance aims to broaden public engagement in the rulemaking process to include those who have been previously underheard. It seeks to equip agencies with a broad suite of strategies for conducting affirmative outreach to those communities most directly impacted by regulations. Importantly, though some of the recommendations address the participation gap in the notice-and-comment process, most focus on engaging individuals and communities even earlier in the rulemaking process, when their situated knowledge can be best used to shape decisionmaking.
For instance, the guidance offers several practical solutions for reducing the barriers that often defeat public participation, including better language translation services for nonnative English speakers and permitting TikTok-style video submissions for those who are not comfortable communicating in writing. The guidance even contemplates providing babysitting services to enable working families to join in-person meetings.
To be sure, whether these reforms actually make the regulatory system more responsive to the public will depend on how well they are implemented. This is something that good government advocates and academics will need to monitor in the months ahead.
Yet, at this moment, amid widespread voter suppression tactics and other concerted efforts to undermine our democratic institutions, the Biden guidance on regulatory participation offers a glimmer of hope that our nation’s tradition of government “by the people” will endure.
James Goodwin is a senior policy analyst at the Center for Progressive Reform. Federico Holm is a clean energy policy analyst at the Center.