The Politics of Ex Parte Lobbying: Pre-Proposal Agenda Building and Blocking during Agency Rulemaking
Yackee, Susan Webb, Journal of Public Administration Research and Theory
The US Department of Transportation's (DOT) National Highway Traffic Safety Administration (NHTSA) publicized a proposed rule in January 2001 that required all motor vehicle manufacturers to make new information on safety problems available to NHTSA. The rule's aim was to allow for the identification of vehicle safety defects. NHTSA's 38-page proposal ignited a firestorm of controversy, with automobile and motorcycle manufacturers lobbying against all or part of the proposed rule, whereas other interested parties supplied arguments that touted its importance for safety. The agency received hundreds of public comments in response to its proposed rule and ultimately issued a final regulation in July 2002.
Brief accounts such as this are the starting point for most discussions of agency regulatory policymaking (or "rulemaking"). Yet this account ignores the critical question of what happens before agencies, such as NHTSA, announce their proposed rules to the public. One is left to question: How is the content of proposed rules generated? And who (if anyone) influences proposal development? With the vast majority of rulemaking studies ignoring proposal development, scholars provide few answers (Kerwin 2003; West 2004, 2005). What little we do know suggests that the pre-proposal stage may be an important venue for political activity and bargains (Naughton et al. 2009; Wagner 2010; West 2009). Nevertheless, the pre-proposal stage of rulemaking--when agency officials gather information and hammer out the text of proposed government regulations--remains a little understood phase in the American policymaking process.
I theorize that interest groups play a key role during the pre-proposal stage and, through their early lobbying efforts, often wield important influence over US federal rulemaking. I argue that group influence manifests itself through both agenda building and agenda blocking (see broadly, Kamieniecki 2006). Stated differently, at times, interest groups help to set the regulatory agenda by affecting the content of proposed rules; at other times, groups lobby to eliminate unwanted items from agencies' policy agendas during the pre-proposal stage. I theorize that ex parte (or "off the record") contacts between interest groups and agency officials are a critical--albeit often nontransparent mechanism frequently used to influence the content of regulatory outcomes during proposal development.
To assess this general argument, I employ content analysis drawn from the administrative rulemaking process and a telephone survey of rulemaking participants. In this study, I focus on US federal rules initiated by seven different transportation-related agencies. I also draw on 15 background interviews with agency officials involved with these rules. The resulting data, which are derived from rules that begin with an Advanced Notice of Proposed Rulemaking (ANPRM) procedure, allow me to track the participation of over 100 interested parties during proposal development. (1) Using descriptive statistics and logistic regression modeling, the analysis yields several advantages over existing research studies. Although others have suggested the importance of the pre-proposal stage (Rinfret 2011; Wagner 2010; West 2009) and even the possibility that formal participation opportunities during the pre-proposal stage may influence regulatory decision making (Naughton et al. 2009), this article provides the first quantitative assessment of ex parte influence mechanisms on proposed rules. Additionally, the article's research design strategy allows for the measurement of interest group influence on rules that are ultimately finalized, as well as rulemaking initiatives abandoned at some point during the regulatory process.
I focus on three key questions in the analysis: First, do ex parte contacts take place? And if so, do they matter to regulatory policy outputs? Second, how important is ex parte influence when controlling for other drivers of policy change? …