Rulemaking by Contract
74 Admin. L. Rev. 703 (2022)
57 Pages Posted: 11 Jul 2022 Last revised: 13 Jan 2023
Date Written: June 22, 2022
Contractors have become a ubiquitous presence in the administrative state. How these private
sector entities intersect with the rulemaking process, however, is not well understood. Unpacking
contractors’ role in rulemaking is important, not least because rulemaking is the executive branch’s
core lawmaking function. It is also important because there is a potential accountability blind
spot when it comes to contractors in rulemaking. The web of law and policy surrounding
contractors is complicated. Protections in place relating to procurement, ethics, recordkeeping, and
disclosure are broadly conceived and not readily applied to the nuances of rulemaking.
Building on a survey of agency rulemaking contacts and interviews with forty-five agency
officials, contractors, and experts, this empirical study provides a comprehensive account of
contractors’ roles in rulemaking. We describe how agencies perceive contractors in rulemaking,
the tasks that contractors perform, and why and how agencies use them to support rulemaking.
Our primary finding is that contractors are involved in almost every aspect of the rulemaking
process, from soup to nuts. We conclude that, at many agencies, contractors are largely
unexamined, but core, contributors to the contemporary rulemaking process and, as such, legal
scholars, policymakers, and practitioners should take a closer look.
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