Turning Rule Writers Into Problem Solvers: Creating a 21st Century Government That's Open and Competent by Improving Regulation and Regulatory Review

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calling for each agency to review its regulations and determine if they can be: “modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.”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.

 

 

Comments

[Cliff Tyllick]

Sounds promising. I wonder, too, how the Plain Writing Act of 2010 will affect rulemaking. It seems to me that it could reduce misrepresentation of a rule's intent, for one thing, and help people potentially affected by a proposed rule better understand its impact on their lives.

I do have one concern about the details of the process you propose. In choosing the questions, the agency coordinating the rulemaking process can manage the discussion. The chosen set of questions can miss topics that need to be discussed, but that the rule writers either overlooked or, unfortunately, simply would rather not deal with. So in addition to a set of questions, there still needs to be an opportunity for general comments.

After all, if we're on the road to hell and asking about the choice of pavement, somebody ought to have the chance to redirect the discussion.

[Noel Dickover]

Love the post, and agree that including the long tail of citizens interested in particular topics to be able to participate on Federal rulemaking initiatives through social media. I also think the ExpertNet approach is definitely worth building the right platform around (BTW, check your link for Expertnet above).

But I think this is part of the picture. The place where statutes originate, Congress, also should have easy methods for citizens to engage with subcomittees tasked with writing new legislation. Once the Statute is written, the Executive branch is limited in how it can interpret and implement the law. Innovation and open dialogue on what is now a very opaque process on the Legislative side (citizens can only talk with their elected representatives, but most policy is written by subcommittees, which are generally sequestered from the public). Opening this up to allow the average citizen (although like the Federal rulemaking, we are really interested in the very informed citizen who is fluent in a particular area) might contribute innovations and problem solving expertise when they matter most.

While the high profile legislative ideas would get too bogged down to make this approach realistic, I'd argue that the vast majority of proposed Bills wouldn't capture the general public's interest - this is good in that only those interested would be participating in a transparent fashion.

[Petermshane]

Great to see *Professor* Beth Noveck back in action! This is an excellent post.

[Beth Noveck]

Enjoying being back in action, Peter, that is, until it's time to grade. Thanks for the good wishes.

[Gary Bass]

The three ideas for reforming participation in the rulemaking process in Beth’s blog post may or may not be useful. They certainly can and should be tested empirically. But the focus on these participation issues must be complemented by reform of the rulemaking process itself.

There are numerous problems with the process. A mainstay of our current rulemaking approach involves comparing costs and benefits. Yet most often, federal agencies end up relying on the regulated community’s estimate of its compliance costs. When cost estimates originate from the regulated community, they are likely to have biased outcomes – especially when there is no way to verify them. Since all decisions about the regulation start with these numbers, we are building a house on a faulty foundation. Moreover, these cost estimates are never tested once the regulation is put into place, even though there is ample evidence that implementation costs go down with technological innovations and other market-based solutions.

If rulemaking is guided by cost and benefits, why is there no assessment for the cost of delay? Not looking at the cost of delay harms the public but benefits the regulated community. If we don’t look at the cost of delay, there is little incentive for action.

Under today’s rulemaking approach, participation is skewed. Small businesses and state/local/tribal governments get special access to discuss proposed rules before the public does. When there is an opportunity for selected audiences to interact with agencies at the expense of other audiences, such as beneficiaries, it raises questions of fairness. It also contributes to a perception that special interests have taken over the rulemaking process – and if not a takeover, then certainly a cozy relationship, such as the relationship that existed between the former Minerals Management Service and the energy industry.

The amount of analysis and paperwork associated with a rulemaking that an agency must go through has become absurd. Through organic statutes, Congress often requires analyses – and each administration tends to add more analytical requirements (often without eliminating old ones). The result is what some experts call “paralysis by analysis,” which, of course, tilts the regulatory playing field in favor of inaction.

I could go on listing the problems with the rulemaking process, not to mention the lack of public education in our schools about administrative government and civic participation. Technology may play some role in making things better, but fundamental policy reform is even more essential.

Additionally, technology solutions skirt the reality that politics play in rulemaking decisions. During the Bush administration, EPA received more than 125,000 comments opposing efforts to reduce data collection under the Toxics Release Inventory (TRI) and only a handful supporting EPA’s effort. Yet EPA moved forward with its proposed gutting of the TRI program. Why participate in a rulemaking process that may be rigged from the start? It fosters disenchantment and discourages meaningful participation.

Beth’s third idea raises concern about who would participate in providing alternative ideas with empirical data to support the idea. Certainly average citizens do not have the technical expertise for such efforts, and most nonprofits don’t either. Most likely, it would be Big Oil, Wall Street, and other regulated special interests that would have the resources to provide the empirical support for ideas. They already do that now. While there should be pilot projects to test Beth’s ideas, let’s not get giddy about technology suddenly changing all power dynamics. Technology may provide tools to help, but it is not necessarily the solution.

Maybe it is coincidental that 2012 is an election year, and it appears that President Obama is suddenly using the rulemaking process as a tool to reach out to the business community. But since last week’s new regulatory policy directives that Beth describes, we’ve seen decisions on regulations that seem to benefit corporate interests. For example:

• On Jan. 18, rules under the H-2B Visa Program, a program that improved the process for setting wage rates employers must pay to temporary foreign workers, came out. But the implementation was delayed until at least 2012.

• On Jan. 19, OSHA backed off a proposed workplace noise rule in response to complaints from major business groups.

• On Jan. 21, FDA withdrew its draft guidance on menu-labeling regulations and instructed states and localities to hold off on enforcement until a final federal rule is published.

• On Jan. 25, OSHA suspended its proposed rule to restore a tracking mechanism on employer injury and illness logs for work-related musculoskeletal disorders.

In each of these cases, there may be legitimate – even rational – reasons to slow down or scotch the regulation. But if a perception grows that the Obama administration is capitulating to business interests over public interests, the best public participation approaches in the world are not going to result in a stronger democracy.

[Stuart Shapiro]

These are all potentially wonderful ideas and I would certainly support their adoption. They all assume however that agencies and their political bosses would accept input. Notice and comment was hailed as the greatest invention in democratic governance when it was created. Indeed it is a good thing but it has always been far less than imagined by its creators. Process alone will never solve problems of substance. Like I said however, these all have potential to be helpful in the right circumstances.

[Dave]

Stuart - isn't one of the purposes of this to use process to create better substance?

[Stuart Shapiro]

I just think that people put too much hope in process reforms. If what we expect are very modest changes in substance and a greater sense of participation among those who participate then reforms like this can be deemed successes. If we expect very different regulations to come out of changes like we set the reforms up to be considered failures.

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