Understanding citizen perspectives on government decision making processes as a way to improve the administrative state.

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Understanding citizen perspectives on government decision making processes as a way to improve the administrative state.

I. INTRODUCTION II. AN OVERVIEW OF THE COMMISSION FOR ENVIRONMENTAL COOPERATION AND ITS CITIZEN SUBMISSIONS PROCESS A. An Overview of the CEC B. The CEC Citizen Submissions Process III. THE TRACK RECORD OF CITIZENS' USE OF THE CEC CITIZEN SUBMISSIONS PROCESS. A. Overall Use of the Process B. A More Nuanced Review of the CEC Track Record. IV. USING THE LITERATURE ON "PROCEDURAL JUSTICE" AS A POSSIBLE FRAMEWORK FOR CONSIDERING THE DESIGN AND IMPLEMENTATION OF GOVERNMENT DECISION MAKING PROCESSES, INCLUDING THE CEC CITIZEN SUBMISSIONS PROCESS V. ASSESSMENTS OF THE CEC CITIZEN SUBMISSIONS PROCESS IN LIGHT OF ITS TRACK RECORD AND THE PROCEDURAL JUSTICE LITERATURE A. Opportunities for Meaningful Participation B. Neutrality and Trust VI. CONCLUSION I. INTRODUCTION

Agency officials in the contemporary administrative state have enormous power to carry out the work of government. (1) While the President, (2) Congress, (3) and Judiciary (4) each has some capacity to serve as an institutional check on the actions of agency officials, (5) it is widely believed and understood that despite these checks agency staff have "staggering discretion" in carrying out their responsibilities. (6)

The enormous power that unelected agency officials wield, with limited oversight, has spawned an extensive literature concerning the legitimacy of the administrative state. (7) Indeed, Professor Jody Freeman has suggested that "[a]dministrative law scholarship has organized itself largely around the need to defend the administrative state against accusations of illegitimacy." (8) These accusations have focused on a variety of purported flaws, including unaccountability of agency officials, (9) a lack of transparency in the operation of the state, (10) limited opportunities for public participation, (11) and dissatisfaction with agency performance. (12)

The question of how institutions build legitimacy is an extraordinarily difficult one that remains largely "unanswered." (13) There has been strong support for increasing citizens' opportunities to participate in governance as a way to increase government legitimacy and to address some of these perceived flaws in the operation of the administrative state. Professor Jim Rossi, for example, suggests that "[o]ver the last thirty years or so, courts, Congress, and scholars have elevated participation to a sacrosanct status." (14) He notes that "recent reform efforts are consistently geared to enhance broad-based participation in the agency decision making process." (15) Dean Edward Rubin similarly has observed that "[p]articipatory democracy is a very fashionable idea these days." (16) Proponents suggest that greater opportunities for public involvement in agency decision making processes may help to enhance accountability and transparency in governance, contribute to more informed, and thereby improved, results, (17) and foster a greater degree of connection between the governed and the governing (and a blurring of the line between the two) that leads to greater social capital and societal trust. (18)

This Article explores the design of governance mechanisms that are intended to incorporate meaningful citizen involvement as a strategy to enhance legitimacy. (19) It does so by focusing attention on what is a central, threshold question: what is it that citizens like (and dislike) about government decision making processes (particularly administrative agency decision making processes) that purport to value citizen involvement? (20) A potentially valuable step in fostering citizen participation in government decision making processes is to incorporate in these processes features that are important to citizens. (21) Processes that citizens value are likely to be processes that citizens use and that enhance citizen confidence in government, while processes with features that citizens find unsatisfactory are likely to be processes that do not engender meaningful citizen input; they may even operate to undermine citizen confidence. (22)

This Article explores ways in which the "procedural justice" literature on citizen satisfaction makes it possible to shed some light on this question of citizen preferences in government decision making processes--i.e., to develop some insights about the types of features citizens think are most valuable or important in decision making processes that incorporate a role for them. (23) The procedural justice literature provides a conceptual framework for considering citizen satisfaction with opportunities for involvement in agency decision making. This literature offers a framework for structuring decision making processes in order to engender citizen satisfaction by identifying features of government decision making processes that are likely to be of particular salience to citizens. (24)

After reviewing a basic framework that the procedural justice literature proposes for assessing citizen satisfaction with decision making processes, I apply this framewor...

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