November 21, 2016

Make Regulations Democratic Again

James Broughel

Senior Research Fellow
Summary

When the public commenting process breaks down, democracy itself suffers. If President-elect Trump wants to make America great again, he should make the policy-making process responsive to the public again, and that begins with reforming the way in which the public engages with regulators.

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The surprising election of Donald Trump on Nov. 8 has put regulatory reform front and center in the public eye. President-elect Trump's action plan to kick off his presidency lists regulatory relief as a key priority in the first 100 days of his administration. As a result, it's time to start thinking about ways to improve the process of designing regulations so red tape doesn't slow growth and limit opportunities for Americans.

One area that is ripe for reform is the public commenting process for regulations. This may be an arcane regulatory procedure, but it's actually one of the most important elements of rule-making. This process should place a democratic check on regulators' power, but for too long the current system has not lived up to expectations.

When regulatory agencies craft new rules, they typically must solicit feedback from the public before the rule is put into place. The idea is that regulators should gather information from a variety of sources that can be used to tailor more effective rules. Meanwhile, commenting also gives the public a say in policy decisions. Thus, public participation legitimizes rule-making by making it more democratic.

But the rule-making process rarely achieves these goals. A recent study found that roughly half of federal regulations from 1995 to 2012 avoided the notice and comment process altogether. This problem isn't unique to the federal government either. It exists in the states, too.

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