Once in a Lifetime:
Opportunities for Civic Engagement

Robert D. Carlitz

<rdc@info-ren.org>
Rosemary W. Gunn

<rgunn@info-ren.org>
Information Renaissance
425 Sixth Avenue, Suite 1880

Pittsburgh, PA 15219

(February 10, 2003)

A glance at the front page of a national newspaper will often turn up a reference to the development of a “rule” by a federal agency. Most Americans, however, don’t recognize this as part of an essential governmental function known as rulemaking – the process by which federal agencies translate laws into specific rules and regulations. For example, the Clean Water Act passed by Congress speaks in terms of making the nation’s streams and rivers fishable and swimmable, but specific limitations on parts per million of allowable discharges were defined later, in rules developed by the Environmental Protection Agency (EPA).

Most new laws are implemented through a rulemaking process. It is a ubiquitous part of government; thousands of new rulemakings are undertaken each year. But although rulemaking affects everyone in our democracy, for the most part this process has been so obscure and inaccessible that few people are even aware of its existence, much less of the very direct role they might play in it. Significant new rules appear with great regularity and anyone is allowed to submit comments during the development of a rule, but the rulemaking process is barely mentioned in civics textbooks; it is rarely the focus of information campaigns; and its mechanisms are not mentioned on the nightly news. As a result, few ordinary citizens take part.

Public interest in government is strongest when the relationship between policy and “real life” is clear. Online rulemaking can build on this interest and allow direct involvement in government. This is an area in which the Internet can be truly transformative, permitting civic engagement on a scale never before possible.

Participants in a rulemaking do not vote on the proposed rule but present written remarks, often in some detail, on its merits and shortcomings. Public comments become part of the “rulemaking docket” – all records of the process, including background research and economic analyses. These records have traditionally been stored on paper and available only in Washington. As a result only lobbyists and some interest groups have had easy access to these dockets; people living by a polluted stream have not typically been a part of formal discussions on the national standards that affect the purity of the water in which they swim or from which they drink. Now this can change.

The Potential of the Internet

The Internet has begun to transform the rulemaking process. In the pursuit of economy and efficiency, federal agencies are shifting their paper dockets to electronic format and placing these dockets online. The Office of Management and Budget has accelerated this process, designating online rulemaking as one of 24 “E-government” initiatives; an Internet portal (http://www.regulations.gov) to all federal rulemaking opened in January, 2003. The newly enacted E-Government Act of 2002 provides a further framework for developing and implementing this initiative.

The introduction of online dockets can begin to open up rulemaking and other policy making processes. This is a rare opportunity: now is the time to encourage public access and participation in rulemaking within the new system. There are staff in every agency who welcome expanded public input, but external support will be needed to encourage and leverage the use of resources for this objective.

A recent example in which foundation support played a critical role in catalyzing broad public input through the Internet was the EPA’s online dialogue on “Public Involvement in EPA Decisions.” This online event, sponsored jointly by the EPA and The William and Flora Hewlett Foundation and produced by Information Renaissance, replaced a traditional set of public hearings in just a few locations with an event that was accessible to people across the country. (See http://www.network-democracy.org/epa-pip for an online archive.)

The EPA dialogue was not a rulemaking but dealt with a draft policy document for which the agency had invited comment from all interested stakeholders. An active recruiting process drew more than 1100 participants all across the country to the online dialogue. EPA staff made use of information from the dialogue to identify problem areas. They applied agency resources to address these problems and advertise best practices.

A rulemaking goes a step farther, in that all substantive public comment must be addressed when the agency promulgates its final rule. Failure to comply with this requirement opens the agency to legal challenges. On the other hand, broad outreach is not presently built into the process, nor is rulemaking typically interactive. Internet technologies can enable new mechanisms for public input to rulemaking and other stages of policy development, including issue scoping within an agency, meetings of federal advisory committees, advanced notices of proposed rulemaking, permitting and enforcement procedures.

Online participation can build involvement

The Internet makes broad public involvement in these processes feasible, while the need to increase interest, trust, and belief in the legitimacy of our nation’s institutions makes increased involvement necessary. Online participation can build involvement by:

• Enabling civic responsibility: Participation in a rulemaking is apt to take time. We don’t expect everyone to want to comment on every rule; this would not be practical, and many rules are too technical or routine to interest a broad audience. But now and then – perhaps once in a lifetime – an issue will come along that makes the time commitment seem worthwhile. Whether this is an environmental question, a workplace safety issue or a question of providing needed medical coverage or social services, individuals and groups should be able to stand up and be heard. To make this work on a broad scale will require active notification mechanisms regarding proposed rules; new standards and techniques for communicating with the public on complex issues; government-wide, easy-to-use rulemaking dockets that accept e-mailed comments; and civic education on rulemaking.
• Strengthening public input and producing better rules: Inviting a broader spectrum of public involvement should give agencies more information on which to base their rules, producing better rules and a greater buy-in to the policy that results. The Internet provides a mechanism that can routinely bring the viewpoints of experts from NGOs and academia into the rulemaking process, as well as the direct experiences and expertise of interested members of the public.
• Improving understanding: Internet participation is a powerful educational mechanism. This may be most obvious in the case of people who engage in an interactive forum with agency staff and stakeholders, but it also applies to those who simply listen in during public discussions, or encounter online resources in the course of an Internet search. If resources are available, the Internet can provide understandable explanations of the complex issues and processes involved in many rulemakings.
• Encouraging analysis and dissemination: Agencies, non-profits and commercial vendors are beginning to experiment with public discussions of policy in small and generally uncoordinated ways. Developing a framework for reporting, assessment and dissemination of results and best practices for handling public input could be of major benefit.
• Promoting transparency: The development of a continuous electronic record from issue framing through enforcement promotes trust by making the process available to public view. In addition, an online docket facilitates sound management, encourages good recordkeeping and makes available the logical background of any given rule. This will help both regulating entities and the public to understand a rule and comment on it. It should also aid courts in reviewing challenges and help in assessing the impact of the rule.

What can be done now

As federal agencies begin to move their rulemaking procedures online, foundation support can help to realize the potential of the Internet to enable broad public involvement. Support for activities like these would be timely:

• A series of pilot projects that use the Internet to facilitate expanded public input on selected upcoming rules or policies.
• Programs to educate the public about rulemaking, its impact on their lives and the roles they can play in the process.
• Development of techniques for (a) identifying and notifying stakeholders, (b) online dialogue on rules, (c) creating materials that enable a broad variety of people to understand and discuss selected public issues, (c) quantifying and evaluating online input, and (d) scaling up to very large online events, which are technically feasible but would at present rapidly overwhelm the ability of any agency to digest the information received.
• Assessment of efforts to increase public involvement in rulemaking, and dissemination of best practices.
• Development of ethical standards. As online involvement processes for rulemaking and other areas evolve and broaden, standards will be needed in areas such as notification of stakeholders, provision of background information to the public and transparency.

Hundreds of millions of dollars are being invested today by the federal government in the development of information processing infrastructure. Foundation funding can help to leverage this investment and build in mechanisms that encourage the involvement of the general public. This is truly a once in a lifetime opportunity to create new mechanisms for civic engagement.