Administrative law scholars and governmental reformers argue that advances in information technology will greatly expand public participation in regulatory policymaking. They claim that e-rulemaking, or the application of new technology to administrative rulemaking, promises to transform a previously insulated process into one in which ordinary citizens regularly provide input. With the federal government having implemented several e-rulemaking initiatives in recent years, we can now begin to assess whether such a transformation is in the works-or even on the horizon. This paper compares empirical observations on citizen participation in the past, before e-rulemaking, with more recent data on citizen participation after the introduction of various types of technological innovations. Contrary to prevailing predictions, empirical research shows that e-rulemaking makes little difference: citizen input remains typically sparse, notwithstanding the relative ease with which individuals can now learn about and comment on regulatory proposals. These findings indicate that the more significant barriers to citizen participation are cognitive and motivational. Even with e-rulemaking, it takes a high level of technical sophistication to understand and comment on regulatory proceedings. Moreover, even though information technology lowers the absolute cost of submitting comments to regulatory agencies, it also dramatically decreases the costs of a wide variety of entertainment and commercial activities that are much more appealing to most citizens. Given persistent opportunity costs and other barriers to citizen participation, even future e-rulemaking efforts appear unlikely to lead to a participatory revolution, but instead can be expected generally to deliver much the same level of citizen involvement in the regulatory process.
Citizen Participation in Rulemaking: Past, Present, and Future,
55 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol55/iss5/2