E-Rulemaking: Bringing Data to Theory at the Federal Communications Commission
de Figueiredo, John M., Duke Law Journal
This Article examines the theoretical promise of e-rulemaking with an examination of data about all filings at the Federal Communications Commission (FCC) from 1999 to 2004. The Article first reviews the theoretical and empirical literature on e-rulemaking. It then analyzes a dataset of all filings at the FCC using descriptive statistics and regression analysis to determine what drives e-filings and whether the theoretical promise of e-rulemaking is being realized six years into the experiment. The Article finds that though there has indeed been a long-term trend away from paper filings and toward electronic filings, citizen participation seems not to have increased from earlier time periods. Rather, e-filing at the FCC has resulted in a marginal change to the rulemaking process and is merely another avenue by which interested parties file comments.
With the advent of the Internet, the federal government sought to computerize and digitize administrative agencies' documents and the rulemaking process in the United States. Plans were laid out (1) and money appropriated to begin the process of computerizing rulemaking to reduce paper in the bureaucracy, (2) increasing citizen participation and deliberation in the rulemaking process, and speeding and enhancing the subsequent creation of administrative rules across the entire administrative apparatus. (3) Beginning in the late 1980s, the federal government began commissioning studies to examine the application of information technology to different aspects of government record-keeping and rulemaking. (4) In 1998, with much fanfare, the Department of Transportation rolled out the first online, department-wide, regulatory docket, providing full access to all studies, comments, and other documents contained in the agency's rulemaking records. This system also allowed the public to submit comments on all rules proposed by the department. (5) Later, the Federal Communications Commission (FCC), Environmental Protection Agency (EPA), and a host of other agencies developed their own systems for computerizing the deliberative rulemaking process. Thus was born electronic rulemaking, or "e-rulemaking."
Since the 1990s, the federal government at all levels has expressed a commitment to electronic rulemaking as a way to cut costs, enhance the deliberative process, and democratize the regulatory process with increased citizen participation. Congress has appropriated money, agencies have dedicated personnel, and task forces have been created. Indeed, a recent initiative has sought to integrate and streamline e-rulemaking through interagency working groups, standardized electronic interfaces, and common back-office systems. (6)
This Article will evaluate whether e-rulemaking has made progress toward achieving its goals seven years into the experiment. Although the theoretical promise of e-rulemaking has been great, it is difficult to determine the success of electronic efforts because papers that have examined much more than case-study data are scarce. (7) Those that have examined larger data sets are of two types: either they are confined to one or two dockets, or they rely upon survey data. (8) While these papers use valid research methods, these methods have drawbacks. Papers that examine only one or two dockets usually select a docket where there have been thousands of comments filed. Unfortunately, these types of dockets are not representative of the average docket before an agency--which may receive fewer than 100 filings. (9) It thus may be difficult to make generalizations from these single-docket studies. Papers that rely upon survey data face a different challenge. Researchers ask parties a series of questions about a comment many months after the filing has been made, creating a problem of hindsight bias. What both of these methods do offer, however, is an evaluation of the influence of e-rulemaking at a very microscopic level of data, which is difficult using other methods. …