50 Pages Posted: 24 Apr 2023 Last revised: 12 Dec 2023
Date Written: February 9, 2023
The dominant form of lawmaking in the United States today - notice-and-comment rulemaking - is not a representative process. Notice-and-comment simply invites public participation, leaving the overall balance of engagement with the proposed regulations to the choices of individuals, public interest groups, trade groups, and regulated businesses. The result is a predictable one: In most rulemakings, industry voices dominate, and in many rulemakings, there is no participation by citizens or public interest groups. This representation deficit, the Article argues, must be taken seriously. The basic rationales for a notice-and-comment rulemaking process depend upon some level of representation by those affected. The goal of providing the agency with higher quality information, for instance, cannot be achieved in the information flows from one direction. So too, participation in rulemaking could only function as a forum of accountability to the public if those effected by the proposal have engaged substantively with the proposal. At the most basic level, lawmaking powers should be constrained by some structural provisions for representation.
To address this representation deficit, the Article defends two proposals. First, it argues that agencies should be required, at the outset of their rulemakings, to identify the key stakeholders from whom they expect engagement, and in their final rules, to identify the extent to which participation lived up to those expectations. This “representation floor” would provide a baseline for representative participation to which the agency would be accountable - to itself, the public, Congress, and the courts. Second, in rulemakings where less powerful interests are likely not to participate, the Article argues agencies should hold proxy representation contests to solicit and select an interest group or groups to serve as a representative of underserved interests. These proposals would institutionalize mechanisms to ensure that rulemakings include representation from all those it affects. In terms of implementation, these proposals could be adopted individuals by agencies, through an Executive Order or OMB directive, or by legislation. More generally, the Article reflects a shift in thinking about administrative law by insisting that representation deserves a place as a foundational administrative law value on par with the traditional values of the field of law such as notice, transparency, and reason-giving.
Keywords: Administrative Law, Agency Rulemaking, Public Participation, Democracy
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