In last night’s State of the Union, President Obama declared: “We cannot win the future with a government of the past.” He emphasized plans, outlined in the Executive Order on Improving Regulation and Regulatory Review he signed last week, calling for each agency to review its regulations and determine if they can be: “modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.”
Federal agencies enact between 4000-8000 (now closer to) 3,000+ rules each year governing every aspect of life from energy efficiency to endangered species, in contrast to one-tenth that number of statutes. Rulemaking is arguably the most important and far-reaching lawmaking mechanism in our democracy.
The White House can make good on its commitment to reduce the burden on regulated industries while still promoting corporate accountability and consumer protection if it uses technology – as the President repeatedly called for last night – to open up the rulemaking process to new voices and ideas from outside government. This can be done without changes to the Administrative Procedure Act (the legislation that governs rulemaking) or new budgets.
Developing more collaborative rulemaking practices would help the White House identify creative solutions that go beyond telling regulated businesses what to do (or not do) and identify complementary (and in some cases, substitute) approaches that reinforce the effectiveness of regulations.
For example, the Progressive Automotive X Prize awarded $10 million dollars in prizes to the entrepreneurs who developed the best mainstream and alternative energy vehicle to achieve 100 miles per gallon fuel efficiency. Prizes are just one possible complement to regulation for creating the necessary incentive to stimulate under-produced innovations. Congress recently provided the legislative impetus for agencies to “to use prizes and challenges to spur innovation, solve tough problems, and advance their core missions to use prizes more regularly,” says Tom Kalil, Associate Director for Policy of the Office of Science and Technology (my former home base). Challenge.gov, a new software tool, enables any public official to create a challenge, such as this one on connected vehicle technology.
For an agency considering how to achieve greater fuel efficiency, the rulemaking process is geared to do only one thing: write rules. Instead, the White House needs to retrain rule writers to be problem solvers.
Several reports have come out in recent years recommending strategies for using technology to make rulemaking improvements (here’s my article on the “E-Rulemaking Revolution” (2003)). But there are three things the White House can do in the next year to expand the toolkit of governance beyond current rulemaking practices consistent with the new Executive Order’s mandate to seek “open exchange of information and perspectives” in the rulemaking process.
1) In the short term (today), the White House can immediately direct agencies to use social media to obtain input much earlier in the rule planning process. Regulations.gov is a government-wide commenting platform for directing comments from citizens to agencies in connection with already drafted and proposed rules. But agencies are generally asking for help after formulating the solution outlined in the rule.
Instead, every department and major agency already has an online brainstorming tool (Ideascale) that lets one person make a suggestion and others give it thumbs up or thumbs down resulting in a rank-ordered list of proposals. Agencies can repurpose these brainstorming sites as well as their Facebook and Twitter accounts and other free tools to solicit input on policy problems long before they become rulemakings. Previously, it made sense to centralize commenting at regs.gov when technology was expensive and the public had a hard time finding commenting opportunities. With the newly redesigned daily gazette of government – FederalRegister.gov – it is far simpler to find public consultation opportunities wherever they take place and far simpler to run them.
The agency can host more online engagements in connection with a policy issue before it becomes a rulemaking on regulations.gov. For example, the Department of Transportation recently outsourced the running of such an online consultation to Cornell University’s “Regulation Room” blog, demonstrating how easy it is to use a simple discussion forum. Agencies have the convening power to attract maximum participation and should start running these policy consultations, too, vastly expanding the use of “outside in” policymaking.
2) Free social media tools are not ideally suited to obtaining structured, manageable, easy-to-read and relevant feedback -- 140 characters on Twitter may be a bit short to capture the nuances of fuel-efficiency --- which is why in the medium term (six months), the White House should employ a software platform that provides templates to organize citizen responses.
Toward the end of my two years as United States Deputy Chief Technology Officer, I collaborated with colleagues on the description of the design for “Expertnet,” the purpose-built question-asking tool we thought was needed to create useful citizen consultations. Such a tool would make it simple for any public official to use a wizard to set up a topic with public consultation questions; distribute and direct those questions to those with specific expertise and interests; configure a template for use in responding to questions so that the public would be providing empirical support for their responses; and synthesize the feedback.
The idea for ExpertNet is rooted in my earlier experience designing Peer-to-Patent in collaboration with the United States Patent and Trademark Office. There we created a template by which a participating member of the public could supply bibliographic literature to the Patent Examiner and explain why it was relevant to assessing the claims of a pending patent application. Simple to fill out. Simple to read. While the Request for Comment in connection with Expertnet described the platform’s potential use in the context of seeking public input on agency performance management, such a tool could also be integrated into and replace the unstructured “click-here-to-comment” processes of regulations.gov.
3) In the long term (one year), rather than layer technology on top of the unchanged political realities, the White House should break out of the legislation-regulation paradigm and direct agencies, prior to any notice of proposed rulemaking, to invite people to develop short proposals supported by empirical evidence for alternative approaches to solving every problem on its agenda, considering every alternative.
At present, there is no opportunity for people outside of government to propose a prize-backed challenge, public-private partnership, social behavioral “nudge,” collective volunteer action, or new software platform as complements or alternatives to create the desired behavior change and consumer protection.
For example, with the release of massive quantities of data (data collected because of a statute or rulemaking) by agencies, Departments like Health and Human Services are beginning to explore how to collaborate with citizens to use this data to create tools that help citizens and policymakers make better, more evidence-based decisions. Websites like healthcare.gov, by creating complete transparency in the market for health insurance, have the potential to drive greater accountability in that marketplace with simple web tools and powerful data. These innovative, tech-based approaches are generally not substitutes but are important complements to regulation.
In order to enjoy a “a 21st century government that's open and competent,” as the President said last night, we need to network government – not reorg it. We need to take advantage of the opportunity created by networks to solicit meaningful, manageable and creative input from outside government early on in the regulatory process before a rule is ever drafted in order ensure that we are devising the most creative and efficient solutions and, at the same time, promoting the most robust democracy.