Legislating from the Margins

By Rachel Pomerantz

Rachel Pomerantz is a sophomore at the University of Pennsylvania studying mathematical economics.

For anyone who grew up learning about the legislative process through the Schoolhouse Rock! song “I’m Just a Bill,” it might seem that contention over whether certain policies should be implemented and how they should be enforced in American society ends with the president’s decision to sign or veto the bill (save for the possible veto override vote or legal action in court). However, the action has just begun once a bill becomes a law. Though little understood, the current way in which regulatory processes are created in effect disincentivizes citizen participation while favoring interest groups that do not represent the general population.

First, a primer on what happens after a bill becomes a law: Agencies will initially submit an“Advanced Notice of Proposed Rulemaking” and a “Notice of Proposed Rulemaking,” which are then open to the public to comment upon for a specified amount of time. [1] Then, the agency will  decide on the rules they wish to implement. The Office of the Federal Register (OFR) dictates what factors and interests an agency may consider in creating a rule.

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However, systematic analysis of these factors reveals that certain groups have a disproportionate opportunity to influence the rulemaking process. For example, when considering the factor “concerns arising from accidents or various problems affecting society,” it is important to understand that how agency officials are made aware of new concerns or problems depends on the information presented to them, which is more likely to come from moneyed interest groups. The reality is that petitions and lawsuits filed by “interest groups, corporations, and members of the public” are far more likely to come from those who have relatively large, financial interests in the outcome of the new legislation. [2]

A perfect example of how underutilized these public resources usually are can be found in an instance where they were widely used. Comedian John Oliver devoted a main segment of his weekly show Last Week Tonight to net neutrality, which refers to the governmental requirement that all internet traffic be treated equally. At the time, the Federal Communications Commission (FCC) was considering changing these longstanding regulations on neutrality, and accepting public comments on whether or not to preserve net neutrality. In an impassioned rant that went viral, Oliver implored the commenters of the Internet to turn their attention to this opportunity and blast the FCC with comments in favor of maintaining net neutrality. [3]

The response was so great, that Last Week viewers crashed the FCC’s website. Tens of thousands contacted the FCC and, as a result, were able to preserve net neutrality. It took an incredibly popular television personality to get the public to use the public comment tool.

There are clearly rational, economic arguments for why the current system behaves like it does. The average citizen has a small stake in the outcome of the regulatory process in comparison to corporations. Furthermore, the opportunity cost of spending the time to understand the complexity of a posited regulatory scenario and write a detailed, informed public comment is too high for the average citizen.

Cognizant of these strategies, the federal government should take positive steps to incentivize participation in the regulatory process. These could include targeted advertising outside of just posting information on a specific agency’s website, as well as holding town halls or webchats with relevant communities, and adding more prominent weblinks to the public comment section.

Of course, we live in a representative not a direct democracy, so citizens cannot take control over all parts of the lawmaking and regulatory processes. However, the government has decided to allow for public comment on the regulatory process. Seeing as the system is fashioned in a way that disadvantages against the average citizen, federal agencies must do everything in their power to counteract this structural problem.

[1] Office of the Federal Register. "A Guide to the Rulemaking Process." Accessed September 14, 2016. https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf.

[2] Ibid.

[3]"Net Neutrality's Stunning Reversal of Fortune: Is It John Oliver's Doing?" The Christian Science Monitor. February 26, 2015. Accessed September 15, 2016. http://www.csmonitor.com/USA/Society/2015/0226/Net-neutrality-s-stunning-reversal-of-fortune-Is-it-John-Oliver-s-doing.

Photo Credit: Flickr User ttarasiuk


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