Gabriel Scheffler & Daniel E. Walters, The Submerged Administrative State, 2024 Wisconsin L. Rev. 789 (2024).
Most arms of government are subject to stringent transparency requirements in an effort to improve public accountability and, relatedly, public trust. For example, the Freedom of Information Act requires public access to most government records, and the Administrative Procedure Act requires agency explanations for final actions such as new regulations or adjudicatory decisions. By contrast, other powerful institutions in society, namely businesses and corporations, are required to reveal very little about their operations or publicly to justify their positions. Paradoxically, though, the public distrusts government far more than these opaque actors and believes government is incompetent, at best, and nefarious, at worst.
Shedding remarkable light on the underlying reason for this illogical result is a new article, The Submerged Administrative State, by Gabriel Scheffler and Daniel Walters. Scheffler and Walters persuasively argue that a significant contributing factor to the lack of public trust in government is that the work of administrative agencies is “submerged.” Some scholars have studied the incomprehensibility of government documents and disclosure to the public, while others (myself included) have examined the failures of transparency laws. What makes Scheffler and Walters’ approach to studying the visibility of government unique, though, is their ability to deftly amalgamate a variety of legal constraints, doctrines, and incentives that push agency work under the radar. Indeed, they convincingly demonstrate that this phenomenon works to the detriment of government by breeding distrust among the citizenry.
To begin, Scheffler and Walters do not shy away from the challenge of linking the lack of public trust to the submerged nature of agency actions. They consider alternative explanations, including the fact that government does actually fail, sometimes spectacularly, and that such failures might be the root cause. They also concede that ideological attacks on big government may contribute to the problem. However, they explain how failure is not unique to government; indeed, reputational attacks are also launched against businesses. Yet corporations spend significant portions of their budget on public relations, branding, advertising, and other activities specifically designed to boost public opinion. Thus, while these factors no doubt contribute to the lack of public trust in government, they do not fully explain it.
Enter the “submergence perspective,” that is, the fact that “[d]espite agencies doing the vast bulk of government work, it is inordinately difficult for even the most informed Americans to appreciate the extent to which agency action affects their lives.” (P. 811.) Indeed, the article opens with a powerful example: data collected by the National Oceanic and Atmospheric Administration about the weather, which most members of the public would never know is the primary data relied upon by nearly every commercially produced weather forecasting service. By contrast, as the authors explain, there are much more favorable attitudes towards agencies that the public interacts with personally, such as the National Park Service.
Scheffler and Walters explain that the lack of visibility is more than just agencies’ failure to harness adequate resources for publicity, but rather is due in large part to legal constraints and incentives they face in communicating with the public. Some laws contain direct restraints on agency communications, such as laws that prevent public relations campaigns or spending of money on publicity experts. Other constraints arise from presidential directives such as those requiring pre-clearance of certain agency statements to Congress through OMB review.
For the administrative law folks out there, you, like me, may be particularly fascinated by the argument the authors advance that various judicial review doctrines themselves have the effect of submerging the administrative state. For example, they point to the old precedent of HBO v. FCC that banned agency ex parte contacts with the public during the pendency of a rulemaking in an effort to ensure a complete public rulemaking record justifying the eventual agency decision. While this precedent was later overturned, the authors argue that it continued to chill agency speech since agencies always have an eye toward creating an adequate record for judicial review. Similarly, the newer major questions doctrine most famously described in West Virginia v. EPA incentivizes agencies to make their actions seem less consequential, lest they be accidentally promoting them into a “major” question ripe for invalidation. I would add to this list the Court’s recent decision in Ohio v. EPA, which seems to require of agencies even more verbose and hyper-technical justifications for their actions, potentially further obfuscating the relevancy of the agency action to most ordinary citizens.
Still, resource allocation decisions also play a role. An ever-increasing reliance on contractors to perform government work makes that work less visible, an accountability gap that has been documented in the rulemaking context. Additionally, agencies are simply not spending money on communications, with the singular exception of the military, which is specifically authorized to do publicity for recruitment. By contrast, corporations, which enjoy higher public regard, spend significant parts of their budgets on public relations.
A second set of submergence factors arises from the legibility of what government does. Simply put, government action is so technical and bureaucratic that it can hardly be understood by the public. Not only are the documents that implement government policy extremely difficult to understand, but the actions lack what the authors call “salience” and “traceability.” On salience, members of the public are often not aware, and on traceability, even if members of the public are aware of a change in their lives, they do not trace that change to an agency action. For example, when social policy is implemented through the tax code it may be submerged, or if agency action creates a “nudge” in behavior, the entire point of the action may be to affect private conduct unconsciously. Finally, and for some most egregiously, the law has sanctioned a body of regulations that incorporate by reference standards set by private standard-setting bodies not generally available to the public, making the law itself submerged in some instances.
Admirably, the authors endeavor not only to describe how to “unsubmerge” administrative actions but also seriously contemplate the possible pitfalls. These downsides include potential backlash, a risk of government propaganda, or skewing agency priorities. Ultimately, they convinced me that the advantages to surfacing agency actions through better messaging, improved processes for the public, and greater public participation in agency decision making outweigh any possible downsides. Surfacing agency action in discrete settings has been explored elsewhere, including my own proposal for an information commission, and Leigh Osofsky and Joshua Blank’s excellent work on automated legal advice. These types of interventions are bolstered by Scheffler and Walters’s great piece, which I am sure will provoke more such proposals for innovation to come.
