The Electronic Revolution in Rulemaking

Abstract:     
Informal rulemaking is about to be transformed by the silent revolution of E-Government, the widespread incorporation of web-based technology in the public sector. With funding and impetus provided by the Electronic Government Act of 2002, the federal government is accelerating the transition by agencies from paper-based to electronic crafting of regulations. E-rulemaking, augurs the end of autonomous agency practice and the beginning of centralization through automation. According to current administration plans, notice-and-comment rulemaking will take place at one website under the direction of the Office of Management and Budget. This E-rulemaking Initiative is perhaps the most far-reaching such governmental transformation ever effected. At the same time, this radical overhaul is taking place without regard for how it will impact the right of citizens to participate. This Article focuses on participation in rulemaking and how technology is likely to change it.

The necessity to design information and communication systems for on-line rulemaking precipitates nothing less than a rethinking of bureaucracy itself. Having to translate rulemaking into a set of software specifications confronts the question of how to embed the desired practices for participation into the design of software. This Article argues that designing for e-rulemaking should shift the emphasis away from one-off commenting on a document and toward cultivating on-going communities of interest and expertise.

Simply putting notice and comment on-line makes the cost of speech cheaper. This only opens the floodgates to a quantity of undifferentiated public input - notice and spam. Nor does the mere right to participate ensure successful democratic practice. A legal rule by itself cannot institutionalize the capacity necessary to form communities of participation. What is crucial is the way tools might be designed to embed methods of interpersonal communication to structure dialogue. These speech tools - and the legal policy which gives rise to them - could provide the processes to make participation practicable and avoid the current situation where public comment reading has to be outsourced to third party consultants. This design-centered approach has the potential to ground the law of rulemaking in actual practice and to anchor that practice in the theory of participatory democracy and collective action.

While the Article explains the current state of electronic rulemaking on an agency-level and the central Federal Electronic Rulemaking Initiative, it proposes new designs for cost-effective speech tools for notice-and-comment rulemaking. The Article also proposes the development of dialogic methodologies to promote more collaborative, less hierarchical and more sustained policy juries and articulates the metrics for evaluating their success. Only through evaluation can OMB identify best practices and code them into the design of the tools for e-rulemaking.

Keywords: administrative law, rulemaking, e-rulemaking,e-government,participatory democracy, deliberative democracy,cyberspace,cyberlaw,technology

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