Scholars argue that the use of visual media in federal rulemaking promotes democratic values.
When you think of federal regulation, do videos or flashy photographs come to mind?
Probably not, but two law professors think they should.
Elizabeth G. Porter and Kathryn A. Watts, professors at the University of Washington School of Law, examine the development of “visual rulemaking” in their paper. Visual rulemaking, they explain, involves the use of visual communications, such as videos and infographics, to advance a regulatory agenda.
For example, President Barack Obama engaged in visual rulemaking when he released his “Memo to America,” an informational YouTube video supporting the Clean Power Plan, a controversial environmental regulation.
Although some observers worry that visual rulemaking may contribute to increased politicization of the regulatory process in the United States, Porter and Watts contend that visual rulemaking is ultimately good for democracy.
Porter and Watts argue that the development of visual rulemaking has increased the public’s access to information about rulemaking and other regulatory actions. To comply with federal statutes, agencies justify their rulemaking decisions with dense arguments and cost-benefit analyses. Average Americans may find this information to be inaccessible, both because they cannot understand the technical arguments and because they may not know where to look for agency explanations, Porter and Watts note.
To lower these barriers, regulators typically release visuals on social media and blogs, increasing the visibility—and transparency—of agency actions. As a result, the use of visual communications may increase public participation in the rulemaking process, Porter and Watts contend. If agencies improve public access to information about rulemaking, the public may be able to weigh in more meaningfully on regulatory actions both informally on social media and formally through the official comment process.
Furthermore, Porter and Watts suggest that visual rulemaking can give the public information about who exerts influence over federal rulemaking. For instance, the U.S. Department of Labor produced a video in 2015 depicting a hand-drawn picture of President Obama demanding that the agency “update the rules!” The video conveyed to the public that the President influences—and is ultimately responsible for—rulemaking by federal agencies. The Labor Department’s notice of proposed rulemaking, on the other hand, only contained a brief mention of the President’s involvement in the rulemaking process.
But visual rulemaking may also have some negative consequences, Porter and Watts acknowledge.
The use of graphics to push regulatory agendas may turn rulemaking into a political battle where agencies use politically tinged visuals to share only one side of the argument. Furthermore, regulators may oversimplify rulemakings so that they are broadly accessible to the masses and appeal to people’s emotions, rather than providing them with more detailed and objective information about complex policy issues.
Visual rulemaking may also violate federal statutes, Porter and Watts suggest. For instance, they note that a government agency found that the U.S. Environmental Protection Agency violated federal laws against lobbying after organizing a social media campaign to support the Waters of the United States rulemaking, another major Obama-era environmental regulation.
In addition, regulators may also violate federal administrative procedures if they confuse members of the public about their rights to participate in the rulemaking process, say Porter and Watts. Federal law requires agencies to provide the public with notice about proposed rules to facilitate public participation in rulemaking through comments. But in the past, agencies have sometimes used online visuals to request comments via social media, without making it clear whether those comments would be considered “official” under law.
Despite these legal risks, agencies can design their visuals to avoid violating federal statutes, Porter and Watts argue. For instance, agencies can clarify that comments on social media are not official comments that warrant an agency response. Agencies can also include links to direct members of the public to the government docket folder where they can submit official comments.
Furthermore, agencies can avoid violating anti-lobbying regulations by following a few guidelines, Porter and Watts write. First, agencies should identify themselves in their visuals, so that the visuals do not constitute what the law forbids as “covert propaganda.” Second, agencies should not encourage the public to contact their state representatives. Lastly, agencies should avoid hyperlinking to outside organizations.
Because visual rulemaking is a relatively recent phenomenon—developed alongside the founding of social media sites like Facebook and YouTube—it is difficult to predict its long term impact.
But Porter and Watts are optimistic that regulators’ use of visuals will increase public awareness about rulemakings and encourage broader participation by the public in regulatory affairs. Regulators and scholars alike would do well to welcome visual rulemaking into the theory of administrative law, Porter and Watts suggest.