This year Penn Law’s Public Interest Week coincides with Sunshine Week, a national effort to promote dialogue about open government and freedom of information. We sat down with Director of the Penn Program on Regulation and Penn Law Professor Cary Coglianese to discuss how information technology affects the transparency of the federal rulemaking process.
Penn Law (PL): What is e-Rulemaking?
Cary Coglianese (CC): e-Rulemaking refers to the application of information technology to the process of making regulations. And in this context, regulation refers to rules that are adopted by the hundred or so administrative agencies at the federal level, from the Environmental Protection Agency to the Securities Exchange Commission.
Most people think of law as being created by Congress, or maybe through interpretations of the Constitution by the US Supreme Court. But actually, by volume and often significance, regulations adopted by administrative agencies dwarf the decisions passed by Congress and the Supreme Court. The Supreme Court may issue about a hundred decisions a year, the US Congress a hundred and fifty or more statutes. But federal agencies are adopting thousands upon thousands of rules every year affecting things like the quality of the water we drink, the safety and security of our airlines, and the soundness of our banking system. All of those are very significant. So any way that we can use information technology to help make those rules better, help make those rules more connected with the concerns that the public has, is a significant development for law and public policy.
PL: How has e-Rulemaking evolved over previous presidential administrations?
CC: First, we have to remember that as much as we all have grown accustomed to it, the internet itself is not all that old. Only during the Clinton years did we see the first real effort at the federal level to use information technology to open up and make the rulemaking process more participatory. The Clinton Administration had established something called the National Performance Review which looked at ways of improving the governmental process across all agencies.
The National Performance Review recommended that agencies increase the use of websites and otherwise make rulemaking information available to the public over the internet. The effort to do just that picked up dramatically in the administration of George W. Bush. Although the Bush administration had a reputation for promoting secrecy, in the regulatory realm it actually took some major strides to open up and make information about proposed rules more accessible via the internet. The Bush administration created a website called Regulations.gov, a one-stop portal that allows any member of the public to go and look at the underlying information that agencies are using to justify new regulations.
Today, the Obama Administration has taken things even further. President Obama initiated on his first day an open government directive and has made transparency and public participation a major theme of his administration.
PL: Can you tell us about your research and PPR’s research in this area – particularly in relation to your work in 2004 and as part of the 2006 ABA panel and your report?
CC: As a legal scholar and social scientist who studies regulation, I have long had an interest in how members of the public as well as interest groups interface with regulatory agencies.
In 2002, the National Science Foundation came to me and asked me to initiate a workshop and develop a report on applying information technology to the regulatory process. I brought together lawyers, social scientists and computer scientists in a series of workshops and issued a report in 2004 that, I think, helped jumpstart a national network of researchers who are engaged in studying e-rulemaking.
In 2004, I also submitted a letter to the federal government on behalf of about 50 scholars, making recommendations on how to improve the federal government’s efforts at e-rulemaking.
As the transition from the Bush years to a new administration approached in 2008, I was asked to chair a Task Force on Transparency and Public Participation designed to make recommendations to the new administration. I also participated at that same time on an American Bar Association task force developing improvements to the Regulations.gov website.
In these ways, I’ve spent a good bit of time, both in my academic writing and in my professional outreach, focusing on e-rulemaking.
PL: How has e-Rulemaking evolved under the Obama Administration?
CC: As I mentioned, the Obama Administration, has from its very first days made transparency and public participation a major theme of the administration. It has developed what it calls an Open Government Initiative. One of the things the Open Government Initiative has pursued is a recommendation that I proposed as part of the Task Force on Transparency and Public Participation I chaired, namely that agencies be required to develop a planning process to focus on ways to improve the transparency of what they do and ways that the public can participate better. A major component of the Open Government Initiative has been to require agencies to develop these public participation plans, or what the administration calls Open Government Plans.
A second effort by the Obama Administration has focused on the quality of the data that goes into Regulations.gov and their accessibility through search engines. This actually follows what I recommended back in 2004, in the letter I submitted on behalf of the 50 scholars. You see, it’s great that the federal government has the Regulations.gov website backed up with a digital docket management system, both created by the Bush Administration. But a system like that is only as good as the data that are in it. Since we were talking about a hundred or more federal agencies, there has to be some standardization and some quality control over the data that get inputted. That data quality remains an important avenue for future work by the federal government. And I’m glad to see the Obama Administration seems to be taking that seriously.
A third recent development appears to be emerging in Congress. At the end of the last term, Senators Lieberman and Collins introduced an e-Rulemaking Act that would follow one of the recommendations that I pushed within the ABA task force on Regulations.gov. If passed, that legislation would establish a program office that would manage e-rulemaking across the entire federal government. Right now, e-rulemaking has been developed and managed through an interagency committee process that has been reasonably successful in getting us to the present point – but only despite the fact that it has had to been driven by a cumbersome committee process. To make greater strides and ensure that data standards can be maintained over the long run, we will need a centralized government gatekeeper who can actually enforce standards for data consistency and data quality.
PL: What are the next steps in e-Rulemaking?
CC: We have a thousand flowers blooming right now. It’s an exciting time as a society to see what changes are being made in information technology and social media – in all facets of life. And this is no exception when it comes to the work of the federal government. Under the Obama Administration, blogs are proliferating at the federal level, agencies are trying wikis, and officials are using Facebook and Twitter to engage with the public.
As exciting as all these changes are, and as much energy and enthusiasm exists in those agencies trying out these new, innovative ways, we need to match that level of interest with research that is designed to evaluate better what works and what doesn’t work in e-rulemaking. Of course, such research is challenging in the governmental sphere. Unlike in the private sector, there’s no clear, single bottom line in the public sector against which investments in information technology can be assessed and evaluated. So we need to develop appropriate metrics for assessing how well information technology is actually improving the quality and the legitimacy of federal agency rulemaking.
That’s a particular challenge that I think institutions like Penn Law and the Penn Program on Regulation can help support. I’m currently conducting a study sponsored by the Administrative Conference of the United States that looks across federal agencies to identify best practices. And the Penn Program on Regulation will be convening a workshop in Washington later this spring to identify better ways of evaluating the effectiveness of different applications of information technology in the rulemaking process.