Circumventing notice and comment during rulemaking can weaken the evidentiary basis for regulation.
Regulatory decisions have to speak in multiple languages at once. Agencies and stakeholders typically draw on three distinct “logics” to evaluate regulatory policy: the “legal,” “economic,” and “technical” dimensions of regulation.
Legal reasoning asks about statutory authority, procedure, and judicial review. Economic reasoning explores how choices affect incentives, costs, benefits, and investment under uncertainty. Technical and scientific reasoning examine how the regulated system works, often in sector-specific terms such as spectrum interference in telecommunications.
These logics can reinforce one another. Legal analysis disciplines decision-making by clarifying constraints and channeling discretion. Economic analysis surfaces tradeoffs and distributional consequences that are otherwise easy to miss. Technical reasoning identifies feasibility limits and unintended consequences that do not appear in statutes or cost curves. Many regulatory disputes are, in practice, disputes about integrating these different dimensions.
That is where notice-and-comment rulemaking can matter, beyond the familiar claim that it expands democratic participation. Consultation, whether through notice-and-comment rulemaking or other formal opportunities for public input, builds a shared record in which the three logics of regulation confront one another. Legal, economic, and technical claims must be stated clearly enough to be answered, compared, and evaluated against one another. The goal is usually not consensus, but a clearer comparison of reasons: what is permissible, what is workable, and what is worth the cost.
Yet across many jurisdictions, institutional reforms increasingly frame consultation and evidence-building as friction. In the United States, deregulatory efforts have emphasized procedural routes for expediting repeals of rules, including calls to invoke the “good cause” exception under the Administrative Procedure Act, which allows agencies to skip notice-and-comment procedures when using them would be impracticable, unnecessary, or contrary to the public interest. In the European Union, “simplification” agendas similarly emphasize acceleration and burden reduction. Brazil offers another instructive case: Even as tools of social participation expand, uneven implementation and managers’ concerns about delay and cost create incentives to narrow or sidestep consultations.
These contexts differ, but they raise a shared design question: When consultation is treated primarily as a cost and policymakers prioritize speed, how does that reshape the balance among legal, economic, and technical reasoning?
Bypassing consultation can change the sequencing of decision-making in ways that advantage legal reasoning over technical and economic reasoning. Legal arguments are often the most usable inputs in fast-track decisions and the most legible to courts. When record-building is curtailed, technical and economic considerations may still matter, but they are less routinely translated into the official justification or tested against counterevidence. Two downstream effects follow: It can shift which interests are advantaged in regulatory influence, and it can weaken policy durability.
In my doctoral research on Brazil’s telecommunications regulator, ANATEL, I examined how argument styles and group incentives align in a participatory setting. I analyzed 5,814 public comments and coded them for whether they sought increased or decreased regulation and whether they relied on legal, economic, or technical arguments. The aim was descriptive: to map who supplies legal information versus technical expertise and offering either form of insight aligned with calls for tightening or loosening the agency’s proposal. That mapping helps illuminate what can change when participation is scaled back.
In deregulatory initiatives, calls to bypass rulemaking procedures are often framed as pro-competitiveness: easing regulatory burdens so policy can respond more quickly to market needs. That framing can also implicitly assume that “industry” uniformly prefers deregulation. ANATEL’s consultations suggest a more mixed picture.
In Brazilian telecom, private industry comments split almost evenly between pro-regulatory and deregulatory directions. Among the three largest incumbent companies—Vivo, Claro, and TIM—preference for a pro-regulatory direction was more common than deregulatory, while other firms tilted the opposite way. The incumbents also submitted substantial evidence: About half of their comments included technical arguments, and roughly 30 percent included economic arguments. Consultation was the venue where these firms could weigh operational constraints and investment tradeoffs on the record—sometimes to argue for targeted strengthening of standards rather than blanket rollback.
In the ANATEL data, the largest incumbents also submitted more mixed-logic comments: 17.2 percent included legal and technical reasoning, 17.9 percent included legal and economic reasoning, and 9 percent included all three. For other telecom firms, the corresponding shares were 14.8 percent, 13.3 percent, and 7.7 percent, respectively. “Legal-only” comments—comments that only made legal claims with neither technical nor economic content—were a minority: 8.6 percent among incumbents and 5.2 percent among other firms. But these comments skewed deregulatory—around 70 percent of them. Because these comments offered less sector-specific evidence about feasibility and tradeoffs, they provided a thinner basis for agencies to justify choices on the merits and to anticipate vulnerabilities before a rule took effect. The legal comments were also much less effective in changing the agency’s initial policy decisions.
Taken together, these patterns clarify two ways that bypassing notice-and-comment can matter.
First, bypassing can reshape who is advantaged. Reforms framed as pro-competitiveness and “responsiveness” may assume that regulated sectors uniformly prefer deregulation, but the telecom evidence suggests that large incumbents often use consultation to put technical constraints and economic tradeoffs into the record, including arguments for targeted strengthening of regulatory standards.
Second, bypassing can weaken durability. When changes are made with a thinner record, proposals are less consistently exposed to contestation across the three logics before taking effect. Legal, economic, or technical vulnerabilities may surface later, after implementation and litigation have already begun.
When procedures that integrate the three logics of regulation are weakened, law is more likely to speak loudest, but the resulting policy may well become as fickle as it is misguided.
