Public Participation without a Public: The Challenge for Administrative Policymaking
Shapiro, Sidney, Murphy, Richard, Missouri Law Review
To promote accountability, the order provides a mechanism for the White House working group to engage directly with the public, including the business community, by establishing a process to solicit input on how best to eliminate unnecessary costs. (1)
Eighty percent of success is showing up. (2)
The first quote above comes from an op-ed that Cass Sunstein, then Administrator of the Office of Information and Regulatory Affairs (OIRA), (3) published on May 1, 2012, in that bastion of deregulatory zeal, the Wall Street Journal (4) In his op-ed, Sunstein extolled the virtues of a new executive order issued by President Obama designed to promote international harmonization of regulations. (5) The goal of such harmonization is to adopt common regulatory standards with other countries in order to facilitate international trade. (6) But harmonization efforts, conducted by unelected bureaucrats from different countries, naturally raise concerns regarding accountability. To assuage such concerns, Administrator Sunstein offered administrative law's usual response: We promise to let the "public" participate somehow in the rulemaking process. (7)
But what if the only members of the "public" who show up are readers of the Wall Street Journal? This concern is far from hypothetical: corporate interests dominate participation in the legislative rulemaking process in the United States. (8) As such, we might expect Woody Allen's observation (our second opening quote) to come into play. If eighty percent of success is indeed just a matter of showing up, then public participation schemes designed to promote accountability or to "democratize" rulemaking have the potential to distort rulemaking into favoring private, special interests. Determining the extent of such distortion presents a terrifically difficult problem--in part because there is no consensus baseline with which to measure departures from the public interest. Still, it seems safe to presume that profit-oriented, corporate interests perceive that they get something worthwhile from their large investments in regulatory proceedings--and we are inclined to trust this perception. (9)
As Isaac Newton taught us long ago, for every action there is an equal and opposite reaction. To the degree that unelected, unaccountable mandarins rule, the people do not. Regulatory agencies, headed by unelected administrators, can thus create a "democracy deficit" and, at least for those who believe government derives its legitimacy from democracy,, a legitimacy deficit, too. Various polities have addressed this democracy deficit by embedding public administration in "accountability network[s] of rules and procedures[.]" (10) A requirement of public participation is one such procedure common to many countries and many situations. Whether public participation serves the public, however, depends on many factors, including the particulars of the public participation scheme, the agency's regulatory tasks, the agency's resources and competence to fulfill those tasks, and the resources and leverage of all those persons who may be affected by the agency's actions.
Bearing the preceding points in mind, this brief Article raises three broad concerns relating to public participation in rulemaking. First, to assess whether public participation serves the public, it is important to understand why such participation is desirable in the first place. In recent decades, two answers in particular have dominated discourse. Following pluralistic conceptions of democracy, one might say that democracy is the way that multifarious private interests that constitute the "public" cut a deal among themselves. Insofar as agency policymaking amounts to coordination of such dealmaking, it is legitimized by its democratic nature." A deliberative democracy conception, by contrast, sees public participation as an integral part of a process that requires agencies to consider all relevant interests before acting and to publicly justify their actions with reasoned explanations. …