Notice and comment is the predominant form of rulemaking in the U.S. and intended to provide the public an equal opportunity to participate in the process.
Theoretically, the system empowers any individual to weigh in on proposed rules, and to have their voices considered before those rules become authorized. The reality, however, is quite different. Rulemakings that lack media attention often fail to draw any comments from individuals or public interest groups. Studies have shown that industry groups and organizations subject to regulation generate the most comments on rules across a variety of contexts and issues.
In their paper Representative Rulemaking, Vanderbilt Law professors Jim Rossi and Kevin Stack argue that notice and comment as structured has created a “representation deficit,” which undermines the purposes of the process. Information provided by industry groups cannot be weighed against public input that is not provided. Accountability to the public cannot be achieved if those affected by a proposal have not engaged with it.
Rossi and Stack offer two proposals to address the representation deficit in notice and comment rulemaking:
The “Representation Floor”
Rossi and Stack note that recent rulemaking studies have found that many federal agencies wait to see how the notice-and-comment process unfolds without expectations for representation. “This passivity,” they write, “leaves important values that Congress intended an agency to address without any voice in the process, does not enable vigorous engagement with arguments, data, and perspectives in the notice and comment process, and leads to agency decisions that are not based on a strong decision-making record.”
They argue that agencies should, at the onset of rulemaking, identify stakeholders from whom they expect engagement and close the process by measuring the extent to which those stakeholders engaged.
This “basic floor of expectations for representation,” as they call it, would be included in every rulemaking notice. An agency’s final assessment of participation could be evaluated by courts in based on its stated expectations..
Such a floor would encourage agencies to proactively seek out comment from potentially affected parties – something that they already do in certain cases – and set a baseline for accountability. Holding agencies to these standards will help them ensure they have fully considered a range of alternatives based on evidence provided in the comment phase.
Proxy Representation
Rossi and Stack advocate for agencies “to identify and mobilize proxy representation for perspectives that are systematically absent from the notice and comment rulemaking process.”
When an agency cannot meet their representation floor and determines that certain stakeholder interests cannot or will not likely be met, it could make a call to the public for identification of an external public representative. The agency would then consider proposals – “in effect, holding a contest,” the authors explain – to identify and certify one or more proxy representatives to provide comment, depending on the number of unmet interests. Proxies may be able to comment on one or multiple proposed rules.
Proxies would not enjoy special treatment, nor would their presence preclude other organizations or individuals from offering comment.
The goal of the format, the authors explain, is to reduce the barriers to participation that many interest groups face. Participation can be expensive and difficult to organize for groups who lack resources of better-funded industry or trade organizations. Groups seeking to earn proxy status for one or more rulemakings would be motivated to invest in developing relevant expertise that would benefit the notice and comment process.
“For too long, the values of administrative law have included notice, transparency, and reason-giving, but not representation,” the authors write. “These proposals would recognize the place of representation among the central values of administrative law—and implications of that place for notice and comment rulemaking.”