RETHINKING REGULATORY DEMOCRACY

Mariano-Florentino Cuellar
Stanford Law School

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     Last modified: March 18, 2005

Abstract
This article empirically examines participation in three regulatory
rulemaking proceedings, involving financial privacy, nuclear regulation,
and campaign finance. It then uses that analysis to critique existing
mechanisms to achieve public participation in the regulatory state. Under
existing law, agencies writing regulatory rules receive input only from
those who decide they have sufficient resources and interest to send them
- such as organized interest groups or companies facing compliance costs
under the new rule. While some consider this �demand driven� process
close to ideal, other observers instead seem to accept the current
approach only because it appears to be a reasonable compromise adequate
for an imperfect world where legitimate aspirations for widespread public
participation meet real world constraints such as limited public attention
to complicated regulatory issues. Drawing on an empirical analysis of
thousands of public comments on these three regulations as well as a rich
empirical literature in political behavior, I question many of the
suppositions associated with compromise acceptance. (1) Contrary to
conventional wisdom, comments from the lay public make up a substantial
proportion of total comments about some regulations, showing at least some
potential public demand for participation. (2) Dramatic differences exist
in the sophistication of comments from interest groups versus individual
members of the public, even though laypeople nearly always raise concerns
that are relevant to the agency's legal mandate. (3) Sophistication
affects the agency's acceptance of suggestions in public comments even
when controlling for differences in the person or organization making a
comment. (4) Interest groups do not always raise the range of concerns
raised by comments from the lay public. (5) The larger public's interest
in a particular regulation, and its sophistication to take part in
discussing it, are both themselves shaped by the process of how the public
is consulted. All this hints at a rich set of possibilities for
alternative institutional designs to involve the public in specific
regulatory decisions and enhance governance.