Public participation without a public: the challenge for administrative policymaking.

• Author: Shapiro, Sidney

To promote accountability, the order provides a mechanism for the White House working group to engage directly with the public, including the business community, by establishing a process to solicit input on how best to eliminate unnecessary costs. (1)

Eighty percent of success is showing up. (2)

1. INTRODUCTION

   The first quote above comes from an op-ed that Cass Sunstein, then Administrator of the Office of Information and Regulatory Affairs (OIRA), (3) published on May 1, 2012, in that bastion of deregulatory zeal, the Wall Street Journal (4) In his op-ed, Sunstein extolled the virtues of a new executive order issued by President Obama designed to promote international harmonization of regulations. (5) The goal of such harmonization is to adopt common regulatory standards with other countries in order to facilitate international trade. (6) But harmonization efforts, conducted by unelected bureaucrats from different countries, naturally raise concerns regarding accountability. To assuage such concerns, Administrator Sunstein offered administrative law's usual response: We promise to let the "public" participate somehow in the rulemaking process. (7)

   But what if the only members of the "public" who show up are readers of the Wall Street Journal? This concern is far from hypothetical: corporate interests dominate participation in the legislative rulemaking process in the United States. (8) As such, we might expect Woody Allen's observation (our second opening quote) to come into play. If eighty percent of success is indeed just a matter of showing up, then public participation schemes designed to promote accountability or to "democratize" rulemaking have the potential to distort rulemaking into favoring private, special interests. Determining the extent of such distortion presents a terrifically difficult problem--in part because there is no consensus baseline with which to measure departures from the public interest. Still, it seems safe to presume that profit-oriented, corporate interests perceive that they get something worthwhile from their large investments in regulatory proceedings--and we are inclined to trust this perception. (9)

   As Isaac Newton taught us long ago, for every action there is an equal and opposite reaction. To the degree that unelected, unaccountable mandarins rule, the people do not. Regulatory agencies, headed by unelected administrators, can thus create a "democracy deficit" and, at least for those who believe government derives its legitimacy from democracy,, a legitimacy deficit, too. Various polities have addressed this democracy deficit by embedding public administration in "accountability network[s] of rules and procedures[.]" (10) A requirement of public participation is one such procedure common to many countries and many situations. Whether public participation serves the public, however, depends on many factors, including the particulars of the public participation scheme, the agency's regulatory tasks, the agency's resources and competence to fulfill those tasks, and the resources and leverage of all those persons who may be affected by the agency's actions.

   Bearing the preceding points in mind, this brief Article raises three broad concerns relating to public participation in rulemaking. First, to assess whether public participation serves the public, it is important to understand why such participation is desirable in the first place. In recent decades, two answers in particular have dominated discourse. Following pluralistic conceptions of democracy, one might say that democracy is the way that multifarious private interests that constitute the "public" cut a deal among themselves. Insofar as agency policymaking amounts to coordination of such dealmaking, it is legitimized by its democratic nature." A deliberative democracy conception, by contrast, sees public participation as an integral part of a process that requires agencies to consider all relevant interests before acting and to publicly justify their actions with reasoned explanations. (11) The debate over which of these conceptions is better remains unresolved, and the word "democracy" is certainly fuzzy enough to allow for both. But, as this Article will develop, these conceptions can lead to very different understandings of what public administration ought to be about, and, given a choice, we will take deliberation over deals.

   Second, under either conception, there is an elephant in the room in the United States: corporate clout. Empirical work demonstrates that public interest groups only participate in some rulemakings, and when they do participate, their efforts are overwhelmed by the participation of corporate interests. (13) While less certain as an empirical matter, the evidence also suggests that this domination biases the rulemaking process under either conception of public participation. (14)

   Third, bearing these lessons from the American experience in mind, we hope that participants at this international forum of administrative law scholars can shed light on how clout affects (or distorts) the operation of public participation in administrative policymaking, both in their own home polities and in international or global settings. We are especially interested in hearing assessments of how well "new governance" initiatives that hope to "let stakeholders develop concrete solutions" seem to play out in practice. (15) Do these initiatives enable especially powerful stakeholders to distort outcomes in their favor? Why or why not? Also, circling back to the opening of this Article, the potential for harmonization of regulatory requirements to enhance economic efficiency is obvious. However, this process also poses a danger of adopting least-common-denominator regulations that fail to protect public health and safety sufficiently. To the degree the "public" (i. e., interested parties with sufficient resources) participates in developing international or global standards, how big a problem is clout?

   Carrying scars from the American experience, the authors suspect these developments may well enhance the clout of powerful special interests, suggesting to us that we should be careful about our enthusiasm for them. Of course, if these developments do enhance clout, then backing away from them may prove easier said than done. We expect that corporate interests would use their clout to pursue reliance on new governance and global standards precisely when they stand to benefit from these moves. But perhaps we are unduly pessimistic. It may be, as some academic literature indicates, that the forces that may counterbalance corporate influence have greater strength in other countries, (16)

   But in the United States, at least, it is past time to think about how to address the problem of clout. This Article views this problem from the perspective of those who see public participation primarily as a means of fostering democratic deliberation designed to promote wise, expert, public-regarding policy choices. One path to improving the capacity of public participation to foster such deliberation might be to strengthen public interest groups so that they have the means to respond to corporate participation. (17) Notwithstanding its attractions, this approach must confront some rather obvious problems--e.g., in the unlikely event that Congress ever chose to fund public interest groups' efforts to challenge government action, it would have to determine which entities are worthy of its largess.

   This Article therefore closes by suggesting an alternative path for exploration: the government should strengthen the most important public interest group of all--the government itself. Deliberative democracy can only work where the rulemaker has the resources necessary to assess independently the efforts of special interests to push regulations in their favor. Thus, the chief bulwark against industry biasing of rulemaking must be an expert civil service. Of course, this path, too, may not be that realistic. No American politician can go wrong bashing the bureaucracy. Since the record of the civil service does not justify this demonization, we see the problem of clout once again. In a post-Citizens United world, (18) it will be difficult, perhaps impossible at least in the short-run, to overcome the campaign against government by political interests that benefit from a lack of government regulation. But as impractical academics, we press on.

2. PUBLIC PARTICIPATION LEGITIMIZES, BUT WHY?

   Public participation is commonly said to legitimize government either because it creates a pluralistic interest group process or because it results in deliberative democracy. (19) For reasons explored below, as believers in both "expertise" and the "public interest," we prefer that public administration and law aspire to the latter model. (20)

   In the 1950s, political scientists, reacting to the embarrassingly low voting rates in the United States, offered a pluralistic account of the legitimacy of American government. This account sees governmental decision making as the product of conflict and compromise among interest groups. (21) Ultimately, this bargaining legitimizes government, because in the long run, it leads to a fair and equitable division of benefits and burdens as long as sufficient groups participate to represent the diverse interests of the public. Policy outcomes that "reflect an equilibrium among all interests" are therefore more desirable than outcomes that advantage a particular interest or interests. (22)

   In his seminal article, The Reformation of American Administrative Law, Professor Richard Stewart suggested that federal courts in the 1960s and 70s sought to embed this pluralistic model into administrative law. (23) According to this view, agency policymaking should be a product of bargaining among interested parties who may engage in political horse-trading to come to some mutually acceptable result. Legitimacy of agency...