The Internet and Citizen Participation in Rulemaking

The Internet and Citizen Participation in Rulemaking -...

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Faculty Research Working Papers Series The Internet and Citizen Participation in Rulemaking Cary Coglianese November 2004 RWP04-044 The views expressed in the KSG Faculty Research Working Paper Series are those of the author(s) and do not necessarily reflect those of the John F. Kennedy School of Government or Harvard University. Copyright belongs to the author(s). Papers may be downloaded for personal use only.
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The Internet and Citizen Participation in Rulemaking Cary Coglianese * Harvard University Every year, unelected officials at government agencies such as the Federal Aviation Administration, the U.S. Department of Agriculture, and the Environmental Protection Agency create thousands of regulations that affect nearly every aspect of social and economic life. 1 Even though these agency officials each year produce about twenty times as many binding laws on society as Congress does, 2 the agency rulemaking process remains remarkably hidden from the view of the general public. 3 Since the insularity of the agency rulemaking process stands at odds with ordinary notions of democratic policymaking, many lawyers and policymakers look with hope to new digital technologies as a way of overcoming rulemaking’s democratic deficit. Just as the Internet has swept through global commerce and everyday life, it also promises to transform the rulemaking process by increasing transparency and enhancing * Visiting Professor of Law, University of Pennsylvania and Chair, Regulatory Policy Program, John F. Kennedy School of Government, Harvard University. I am grateful for helpful comments I received on an earlier draft from Peter Shane, the anonymous reviewer for this journal, and participants in a conference on democracy and digital technology at the Yale Law School. Copyright © 2004 by Cary Coglianese. All rights reserved. Please address correspondence to the author at the Regulatory Policy Program, John F. Kennedy School of Government, Harvard University, Cambridge, Massachusetts 02138, cary_coglianese@harvard.edu. This paper is forthcoming in I/S: Journal of Law and Policy for the Information Society (2005). 1 Cary Coglianese, E-Rulemaking: Information Technology and the Regulatory Process , 56 ADMIN. L. REV. 353, 354 (2004). 2 Id . at 358 n. 18. 3 See Cary Coglianese & Margaret Howard, Getting the Message Out: Regulatory Policy and the Press , 3 HARV. INTL. J. PRESS/POL. 39 (1998) (noting the limited coverage the media gives to rulemaking by government agencies). 1
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opportunities for public participation. 4 Commentators have argued that the Internet will “change everything” about the dynamics of administrative rulemaking, “revolutionizing public participation” so that ordinary citizens “can play a more central role in the development of new agency policies and rules.” 5 Given how digital technologies have made communication easier in other areas of life, and given how few citizens currently participate in administrative rulemaking, such optimism is understandable. Despite the allure of new information technologies, their application to the
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The Internet and Citizen Participation in Rulemaking -...

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