Enhancing the Role of Public Interest Organizations in Rulemaking Via Pre-Notice Transparency

This essay briefly examines the validity of the concern that the administrative rulemaking process as currently structured unduly favors industry over public interest groups. It concludes that this concern has substantial justification. By shoving policymaking into the pre-notice period, the current process tends to deprive public interest groups of information they need in order to attempt to influence regulatory outcomes. Also, the resources necessary to participate in the rulemaking process (from pre-notice all the way through judicial review) naturally tilt the process in favor of those with money and power—namely corporate interests. The essay continues by briefly discussing one suggestion for slightly redressing the balance of power: require prompt, electronic, and searchable disclosure of communications to agency officials directly bearing on the merits of potential rulemaking, regardless of whether a notice has been issued. Adopting this type of policy would not, of course, correct the basic problem of the resource imbalance, but then nothing, realistically, could. It would, however, make it somewhat easier for public interest groups to obtain the information they need to influence rulemaking in a timely way before an agency’s policy choices crystallize.