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Cynthia Farina, Mary Newhart & Josiah Heid, Rulemaking vs. Democracy: Judging and Nudging Public Participation that Counts, 2 Mich. J. Envtl. & Admin. L. (2012), available at SSRN.

In Rulemaking vs. Democracy: Judging and Nudging Public Participation that Counts, Cynthia Farina, Mary Newhart, and Josiah Heidt explain why the initial efforts to encourage use of electronic media to broaden participation in rulemaking have not, and can not, work. The opening paragraph of the article describes and criticizes the reasoning process that has inspired the initial efforts:

Open government enthusiasts (among which we certainly count ourselves) seem prone to magical thinking—i.e., the building of if-then links that are not objectively justifiable. Open government magical thinking has several strands. If we give people the opportunity to participate, they will participate. If we alert people that government is making decisions important to them, they will engage with the decisionmaking process. If we make relevant information available, they will use that information to engage meaningfully. If we build it, they will come. If they come, we will get better government. (P. 1.)

The authors describe the initiatives that are designed to broaden participation in the rulemaking process based on the magical belief that, since “participation is good, … more participation is necessarily better.” (P.5) They then describe the results of their extensive empirical analysis of the magnitude and nature of the increased public participation in the rulemaking process that has resulted from the efforts to date to encourage broader participation in rulemaking through use of electronic media.

The authors found that the efforts to obtain broader participation in rulemakings have produced primarily mass electronic submissions of tens of thousands or hundreds of thousands of virtually identical comments filed in response to electronic initiatives by advocacy groups. The authors contrast the democratic process with the rulemaking process by referring to the large body of case law that has developed to describe the process:

[D]ecades of judicial elaboration have constructed rulemaking as a process in which outcome legitimacy depends on a formally-transparent process of reasoned deliberation.  .  .  . In rulemaking, the formal legal requirements of data-driven analysis, reason-giving, and consideration of alternatives reduce the risk of outcomes that are “wrong” because of low-information, low-thought decision making. (P.9.)

By contrast, the thousands of virtually identical comments that are submitted as a result of the efforts of advocacy organizations are thoughtless, uninformed and devoid of facts, analysis or reasoning. Thus, they are worthless to the agency decision makers who are expected to base their decisions on fact-intensive analysis. As the authors put it:

A reasonable agency, in short, would assume that mass comments suffer from the kinds of fundamental defects in information quality and deliberative judgment that would (justifiably) prompt judicial reversal were such flaws found in its own decisionmaking. Why would we want government decisionmakers to attend to such flawed preferences? (P.16.)

The mass comments submitted by members of the public are also worthless as evidence of public opinion on an issue. The authors found many cases in which mass comments reflected use of “the Chicago model of civic participation: Vote early and often.” (P. 16.) In some cases, 300 comments were submitted by the same individual. Even if 200,000 separate people submitted comments expressing the same view of an issue, the decision maker would have no way of knowing whether the other 300,000,000 members of the public agreed or disagreed with the views expressed in the comments. As the authors point out:

There are many recognized methods of sampling (i.e., selecting a subset of individuals) to estimate characteristics of the whole population. Persuasive solicitation of members by a limited range of advocacy groups does not satisfy any of them. (P. 15.)

The authors conclude by describing steps that might be taken to encourage submission of comments that would have potential value to decisionmakers, but they are highly critical of the efforts government has made so far. In their words: “A democratic government should not actively facilitate public participation that it does not value.” (P. 22.)

I found this article informative and persuasive. It may be that the electronic revolution will enhance the value of the rulemaking process through some means in the future. It is apparent, however, that the advocates of such beneficial changes must rethink their approach.

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Cite as: Richard Pierce, Efforts to Expand Public Participation in Rulemakings Have Been a Failure, JOTWELL (September 25, 2012) (reviewing Cynthia Farina, Mary Newhart & Josiah Heid, Rulemaking vs. Democracy: Judging and Nudging Public Participation that Counts, 2 Mich. J. Envtl. & Admin. L. (2012), available at SSRN),