HIDING THE BALL: THE PROPOSED REGULATORY ACCOUNTABILITY ACT & RESTRICTING AGENCY ‘PROPAGANDA’

The Senate’s Regulatory Accountability Act (RAA)seeks to substantially amend the AdministrativeProcedure Act, the law governing federal agencyprocesses. The bill’s sponsors argue, in part, that theRAA would improve administrative transparency andaccountability. One of the least-discussed provisions,§ 3(c)(6), “Prohibition on Certain Communications,”would prohibit agencies from advocating for or againsta proposed regulation during the comment period, anindispensable component of notice-and-commentrulemaking that affords the public a voice in therulemaking process. This Note recommends thatagencies should be able to exhibit their preferences at allstages of rulemaking, because, as policymakers, agenciesshould inform the public of their goals, purposes, andmethods, as well as defend their reasoning in the face ofthe potentially dominating narratives of regulatedindustries. If left uncensored, agencies could also use theInternet to mitigate some of the public participationcosts of commenting and increase public participation inthe rulemaking process. This Note suggests that § 3(c)(6)runs counter to the RAA’s broad justifications ofincreasing administrative transparency andaccountability.