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Rulemaking vs. Democracy: Judging and Nudging Public Participation that Counts

Michigan Journal of Environmental and Administrative Law, Vol. 2, Issue 1, 2012

Cornell Legal Studies Research Paper No. 12-20

51 Pages Posted: 8 May 2012 Last revised: 7 Mar 2013

Cynthia R. Farina

Cornell Law School

Mary Newhart

Cornell Law School

Josiah Heidt

Cornell Law School

Date Written: May 8, 2012

Abstract

Open government enthusiasts assume that more public participation will lead to better government policymaking: If we use technology to give people easier opportunities to participate, they will use these opportunities to participate effectively. However, experience with technology-enabled rulemaking (e-rulemaking) belies this assumption. Engagement of new participants most often takes the form of mass comment campaigns orchestrated by advocacy groups. Challenging the conventional highly negative response to mass commenting, Prof. Nina Mendelson has recently argued that, in a democratic government, agencies should give at least some weight to the value preferences expressed in such comments when rulemaking involves value judgments.

Engaging this important argument, we propose a framework for assessing the value of technology-enabled rulemaking participation. Our position -- that the types of preferences expressed in mass comments may be good enough for electoral democracy but they are not good enough for even heavily value-laden rulemaking -- challenges both the Web 2.0 ethos and the common open-government belief that more public participation, of any kind, is a good thing. In rulemaking and similar complex policymaking processes, more public participation is good only if it is the kind of participation that has value in the process.

We offer specific principles of participation-system design that are drawn from both normative conceptions of the responsibilities of a democratic government and from the design-based research being carried on by the CeRI (Cornell eRulemkaing Iniative) in the Regulation Room project. We argue that design of civic engagement systems must involve a purposeful and continuous effort to balance “more” and “better” participation, and stress that a democratic government should not actively facilitate public participation that it does not value.

Keywords: e-government, e-rulemaking, online participation, civic engagement, rulemaking comments, rulemaking 2.0

Suggested Citation

Farina, Cynthia R. and Newhart, Mary and Heidt, Josiah, Rulemaking vs. Democracy: Judging and Nudging Public Participation that Counts (May 8, 2012). Michigan Journal of Environmental and Administrative Law, Vol. 2, Issue 1, 2012; Cornell Legal Studies Research Paper No. 12-20. Available at SSRN: https://ssrn.com/abstract=2054750

Cynthia R. Farina (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States
607-225-5879 (Phone)
607-255-7193 (Fax)

Mary Newhart

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Josiah Heidt

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

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