For every law passed by Congress, executive branch agencies write some 25 regulations. All proposed regulations are now being presented on one site–regulations.gov–built under a very handome contract from OMB. The potential advantages of bringing the regulatory process online cannot be overstated (and I’m the opposite of a technological optimist). There may be no worse flaw in our democracy than the current system. The existing rulemaking process creates the following problems:
1. It favors organized lobbying groups that can hire experts. Those experts become part of the same “community of practice” or the same “stakeholder group” as the regulators. They have similar training and networks; they know the ropes; and over the course of their careers, they work for the same employers. As a result, they get very cozy. Some “public interest” groups, such as the major environmental organizations, have fought their way into the circle. But other interests, such as the homeless and even average taxpayers, are not effectively organized to lobby scores of separate rulemaking bodies.
2. A system of administrative rulemaking encourages Congress to pass vague laws that fail to resolve tensions and tradeoffs. Congress kicks those hard issues to rulemakers, who have relatively low profiles and are insulated from public accountability. For instance, various statutes since the Federal Communications Act of 1934 have directed the Federal Communications Commission to issue broadcast licenses in such a way as to serve the “public interest, convenience, and necessity.” Likewise, Congress has delegated the right to “determine just and reasonable rates” to the Federal Power Commission; and the authority to “prevent an unfair or inequitable distribution of voting power among security holders” to the Securities and Exchange Commission. Congress has not even attempted to define “just rates,” the “public interest,” or “unfair voting power.” When regulators make costly or unpleasant decisions in the course of implementing vague statutes, legislators win political points by blaming them.
3. Rulemakers obtain no legitimacy from being elected, but they do have expertise in science, law, or economics. Thus they have a natural tendency to make moral decisions appear to be technical ones. If appointed administrators ever presumed to set “reasonable rates” for power, or picked broadcast companies because of the quality of their programming, their decisions would appear overly “political.” Therefore, rulemakers typically address such questions as if they were technical matters of efficiency, even though these issues are fundamentally moral.
4. As a result of a system in which multiple agencies make separate decisions on supposedly technical grounds, federal policy is unnecessarily complex. The great and increasing complexity of policy is a barrier to democratic participation.
5. Whereas Congress can only consider a major area of policy once every few years, administrative agencies can reconsider them constantly. The result is a mass of always shifting rules. But, as Madison wrote (Federalist 62), “mutable policy … poisons the blessings of liberty itself.” Government by the people can hardly be said to exist, he said, “if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.”
6. Administrative rulemaking leads to piecemeal, incoherent policy, as multiple agencies make decisions basically in isolation.
7. Administrative rulemaking undermines the Constitutional order itself. Locke proposed that “the legislative cannot transfer the power of making laws to any other hands. For it being but a delegated power from the people, they, who have it, cannot pass it over to others.” (Second Treatise of Civil Government, chapter 11, ?141.) This precept was made explicit in the Constitution, which assigns “all legislative powers” to Congress. In reality, however, most binding rules are made by administrative agencies.
I actually favor a rather radical solution: treating vague laws as unconstitutional. However, this isn’t going to happen. Surely a partial remedy would be to turn the process by which people file “comments” on proposed regulations into something approaching public deliberation. Why not make all pending regulations easily searchable on a single web page, allow people to comment and read one another’s comments, and thereby promote an equitable public dialogue?
Indeed, that is the purpose of regulations.gov. However, in a comment filed more than one year ago (pdf), the great people at Information Renaissance criticized the emerging website on numerous crucial grounds. A few complaints stood out for me: There was no opportunity to create conversational “threads”–each comment just stood alone. There were no links to important background materials. The page didn’t use open standards so that others could build software compatible with it. The search engines weren’t effective. The process for designing the site was itself closed–it wasn’t even easy to find out what contractor was responsible for it. And there was no easy means to get automatic updates of new regulations.
As far as I can tell, none of these problems have been solved. I don’t believe that the current site will change much. It will make it somewhat easier to find regulations–but only people with salaries and training for the purpose will look regularly. It will allow people to comment with a single click–but most people cannot do so effectively.
The great advantage of an online forum is the potential for citizens to benefit from other citizens’ work. For example, someone should be able to summarize a complicated regulation in a way that brings out its bad consequences, and then others should be able to refine, criticize, endorse, or disseminate that summary. The current structure does not support such work at all.
[Note: some of the above is auto-plagiarized from my book The New Progressive Era.]