In his path-breaking book, Imperfect Alternatives (1997), Neil Komesar develops a simple model for comparing the ability of institutions to address various social problems – for example the relative ability of markets versus legislatures versus courts to resolve a particular issue. Beyond informing questions about institutional choice, Komesar’s model can also be used to troubleshoot processes within single institutions – for example by exposing unnecessary impediments to citizen engagement in democratic processes. His model thus provides a tool that is useful for institutional analysis and reform, regardless of whether the goal is to improve a particular institutional approach or to think more broadly about larger comparative institutional capabilities.
Komesar’s model is grounded in the basic idea that affected groups will participate on a given issue when that group’s benefits, measured as the group’s average per capita stakes, exceed their costs, which include the costs of information and organizing. The best institution typically is the one that brings out the most diverse views. On issues of civil rights, for example the best institution allows the full spectrum of views to surface and be heard – not just the tyranny of the majority who may favor oppression of certain minorities. On issues of environmental pollution, the best institution considers not only the noisy demands of a small group of regulated parties, but also the interests of the often dormant majority. The model assesses how well institutions maximize the full range of participation and compares this capability across institutional alternatives.
In an essay published in a symposium issue of the Wisconsin Law Review honoring Komesar’s work, I apply this model to administrative law. Since pluralistic oversight is one of the primary mechanisms for ensuring that this fourth branch of federal program remains accountable to citizens, administrative process makes the participation-centered model’s central measure of maximizing balanced participation both relevant and concrete. Beyond spotlighting the central objective of administrative process, the participation-centered model also provides a tool for measuring how well the process is meeting this goal. The model’s variables, coupled with the admonition that all affected groups should be engaged vigorously and in a balanced way, provides an empirically testable measure of the adequacy of a process.
Using the central variables of Komesar’s formula – the cost of information, the cost of access, and the benefits to interest groups – I assess how well administrative processes are doing in ensuring diverse engagement. The preliminary application of Komesar’s model reveals potentially significant structural problems that may ultimately be impeding rather than enhancing engagement by all affected interests. A few of these discoveries are highlighted below.
Problem #1: Processing Costs are Ignored that Impede Balanced Participation
Perhaps because it is so committed to sunlight, administrative law seems to assume that more information is better, but such a view fails to account for the participatory impediments posed by information-processing costs. And, in administrative law these processing costs can significantly hamper participation. A typical, forty-plus page preamble and rule published in the Federal Register can demand dozens of hours of research and drafting time from a savvy public interest staffer who plans to submit a comment. If the staffer also reviews background information or comments filed by others, the time spent to prepare comments on a rule easily doubles. With hundreds of rules published annually just by EPA, the workload to submit comments on the environmental rules alone can far exceed a public interest group’s capacity to participate in these processes.
Worse still, administrative process may actively encourage parties, including the agency itself, to load superfluous information into the record, thus inflating information costs well beyond what is justified under the circumstances. For example, the courts have warned participants that challenges to agency rules in court can occur only when the problems with a rule have been raised “with specificity” during notice and comment. Commenters thus understand that they should attempt to create a record with every conceivable issue worthy of challenge. Agencies’ incentives for information loading run in parallel to those of interested parties. Courts review an agency’s rule based in part on how well the agency responded to facts and related arguments raised by commentators. Like interested parties, agencies are encouraged to be overly thorough, to be exhaustive, and to leave no stone unturned.
Problem #2: Invisible access points that make participation more costly
While administrative process promises open access to decision makers and an opportunity for any citizen to comment and file suit on rules, in reality there are numerous invisible access points that are not open or easy for all affected participants to access cheaply. The first major access point that can serve in practice as a type of barrier to thinly-financed participants occurs during the development of the agency’s proposal. During this often long and arduous period, the agency has judicially imposed incentives to get the proposal as complete as possible and to ensure that the most litigious groups are satisfied with the proposed rule. Early empirical evidence bears out that the squeaky wheels get the grease during this pre-proposed stage. An empirical study of some Clear Air Act rules showed that regulated parties heavily dominated the pre-proposed rule process; on average there were 140 agency contacts with the regulated parties per rule as opposed to less than one contact per rule with public interest groups during this same, formative rulemaking stage.
Another generally ignored access point that likely takes a toll on the balance and diversity of participants is White House review, or more specifically review by the Office of Information and Regulatory Affairs (OIRA). Pursuant to an Executive Order first issued in 1981 by President Ronald Reagan, OIRA reviews significant rules at both the proposed and final stages. Because of their important role in altering the substance of some agency rules, OIRA has become an important access point for interest groups wishing to influence a regulation. Like the pre-NPRM process, OIRA meetings are more frequently held with regulated industry than with the public interest groups. There is also preliminary empirical evidence that suggest that the effects of OIRA review tend to favor industry in the aggregate.
Political interference through congressional oversight hearings can also be used to bully agencies into revising their regulatory proposals or abandoning regulatory projects entirely. These legislative interventions create yet another access point that is costly to access but that can have a substantial influence on the final regulatory product.
Finally, even judicial review can be used strategically. When an interest group files a petition seeking judicial review of an agency rule, the agency may choose to settle that petition, sometimes in secret if the terms of the settlement do not materially change the text of the rule. Rule settlements thus constitute yet another access point that benefits those who file judicial challenges over those who do not.
Problem #3: Artificially Reduced Benefits
As the costs of information rise, the benefits to participate can become artificially depressed if a group is no longer able to comprehend what is ultimately at stake on a given issue. Bloated information costs thus further reduce the inclination of some participants to engage in the process, creating a double-whammy in ensuring full engagement by all affected interests. These artificially reduced benefits also occur in administrative process. For example, it can be particularly difficult for the catalytic public interest subgroups to activate the dormant majority to care about or, perhaps more urgently, donate to issues that are so mired in complexity that they obscure what is at stake for the public in complicated but important environmental regulations.
Komesar’s model allows researchers to see institutions in fresh ways. At least for some features of administrative process, this fresh look may reveal surprises that in turn demand the basic architecture of administrative law to be reconsidered. Using Komesar’s formula, institutional process can then be redesigned in ways that lead to more balanced participation in the future.