Agencies should consider new tools to expand access to public opinion in the rulemaking process.
Democracies—through cycles of public input, evaluation, and public discussion—should aim to learn and improve over time. For democracies to improve, citizens and policymakers must experiment and innovate with respect to the content of public policy and their decision-making processes.
Contemporary democratic theory and practice are rife with exciting ideas for democratic improvement, such as ranked-choice voting, which some scholars have argued could be paired with multimember districts to combat partisan gerrymandering. Democratic innovation is not limited to electoral reform. Scholars have also proposed improving democracy through the use of digital deliberation and citizen assemblies selected by sortition.
Although democratic experiments may not work as intended—and this uncertainty provides some reason to proceed with caution—citizens and policymakers can identify means of improving democracy through experimentation and innovation. The notice-and-comment process, as an important site of public input on policymaking, should be part of these efforts at democratic improvement.
To get a sense of what improvements to the notice-and-comment rulemaking process would look like, it can help to consider what values democracy can realize. Citizens take part in democratic decision-making with the hope that public policy will advance their interests. Even when policymaking does not go their way, citizens can look to their government for explanations of decisions that show that they are justified, perhaps with an appeal to accepted standards or from a variety of citizens’ perspectives.
By gathering information from differently situated citizens, democratic institutions can make use of the knowledge dispersed throughout society to make better informed decisions. The notice-and-comment process, as a source of public input, can contribute to democracy by collecting information from a variety of citizens, using that information to formulate rules that are responsive to citizens’ interests, and responding to comments to justify agency decisions.
There are multiple reasons for dissatisfaction with the current state of public comments on agency rulemaking in light of these values.
First, the barrier to effective participation is too high for many citizens. Citizens have many demands on their time and attention, so they cannot spend their time scouring the Federal Register to find proposed rules and seeking out evidence to make informed comments.
Second, many of the comments that agencies do receive tend to come from regulated industries that have the resources and expertise to comment on proposed rules that affect them. When agencies do not receive comments from a broader spectrum of citizens, they may lose out on valuable information, provide explanations based on a narrower range of perspectives, and may end up responding to a narrower array of interests.
Finally, in some cases when proposed rules do capture the public’s attention, agencies can receive hundreds of thousands or even millions of comments from mass comment campaigns. Even in these cases, comments may not be representative of broader public opinion. Mass comment campaigns are often organized by advocacy groups. These perspectives may not be indicative of the broader population in the same way that the most committed partisans are not representative of all voters.
Although mass comments can provide some useful information, they also have shortcomings. Mass comment campaigns impose a burden on agencies that have to sort through and respond to them, while also guarding against fraudulent comments. Moreover, many mass comments are substantively identical—often due to the use of form letters—and as a result are less conducive to gathering information that is particular to individual citizens. Even when comments do include personal information, it may not be information that is most pertinent for agency problem-solving.
For example, in a recent essay in The Regulatory Review, Michael Herz recounts how the U.S. Department of Education received thousands of comments recounting personal experiences with student debt while working in public service. These comments, however, were not well-suited to guide operational improvements to the Education Department’s student loan forgiveness program. The content of these narratives largely reflected what the Education Department already knew, instead of providing information on particular challenges for loan forgiveness applicants. Gathering more useful information could require posing more specific questions for citizens and more robust, iterative forms of communication.
Luckily, mass comments are not the only way to collect public input on agency rulemaking. Agencies should be open to a variety of new tools to collect public opinion, but I propose the following criteria to identify promising possibilities. Due to the challenges that citizens and administrative agencies face, agencies need methods of collecting public input on rulemaking that lower the barrier to participate, engage a range of perspectives that are representative of the broader public, enable more robust communication with citizens, and reduce burdens on citizens and agencies.
Based on these criteria, one useful tool could be the use of what democratic theorists call “mini-publics.” Mini-publics are small groups of citizens, often randomly selected, who are brought together to discuss public issues. Participants typically receive briefing materials prepared by experts and discussions are moderated, which lowers the barrier to providing well-informed input.
Mini-publics could serve to equip citizens with the knowledge and skills to comment on proposed rules more effectively, which would give agencies a snapshot of what the broader public thinks about a proposed rule. With a randomly selected group, agencies could avoid hearing only from those with the strongest commitments on the issue. Agencies could instead collect more detailed feedback from a small group with more confidence that it is indicative of the broader public.
Moreover, using mini-publics as an alternative to mass comment campaigns could reduce the burdens of commenting, both for agencies and the broader citizenry. And by using mini-publics for proposed rules that do not receive many comments, agencies could expand the range of information and perspectives that inform the rulemaking process. Mini-publics could then serve as a democratic innovation to promote better-informed, better-justified, and more responsive decision-making.
The author explores some of the themes in this piece in greater detail in “Realizing the Value of Public Input: Mini-public Consultation on Agency Rulemaking.”
This essay is part of a nine-part series entitled Creating an Administrative System for All.