“Simply -President George W. Bush, March 2002 Thesis
“Simply put, our goal is to make your government more accessible to all Americans.”
-President George W. Bush, March 2002
Although E-rulemaking has its flaws, it nevertheless warrants a try because it will help to legitimize democracy. E-rulemaking promotes the legitimization of democracy by lowering information costs, increasing public participation, and improving deliberation and communication between different members of society.
Until recently, information technology has been serving an ancillary role to democracy. The word “democracy” is defined as “government by the people, either directly or through representatives.” With the advent of E-rulemaking, however, the playing field for democracy has been irrevocably altered. A marriage has thus been formed between information technology and the very concept of democracy.
By definition, democracy is not government by a selected few. If only a few participates in a decision making process that affects them, democracy will be falling far short of its ideals. Thus, in order to have effective government by the people, a few key elements ought to be satisfied.
First, there should be public participation. Without public participation, it would not be a government “by the people.” Second, the public should have reasonable access to the information that is essential for the issues at hand. The public cannot make good decisions when denied relevant information. Moreover, without knowing which laws will be affecting them, the public would not know when they need to participate and when they should participate. Currently, through the use of online commenting, the internet is the best way for the public to provide input to the government. Consequently, the internet is arguably the best way for the public to receive information relevant to rulemaking. However, there is one caveat. Unless the “digital divide” problem can be solved, true public participation will not exist. On this point, this paper will show that science, not politics will ultimately bridge the digital divide.
The final element to be satisfied in order to have an effective democracy requires that the public have an accessible, deliberative process where view points may be exchanged with one another. Accordingly, the democratic process will be enhanced in several ways. Having a deliberative process will force each participant to examine his or her logic and arguments carefully. In addition, it may serve to introduce to those participants new facts or viewpoints not previously considered by those particular individuals. As a final point, it is also important to note that the process of deliberation alone gives people a sense of fairness.
E-rulemaking vs. Traditional Rulemaking
The Federal Departments and Agencies are responsible for creating regulations to implement statutes through a process called rulemaking. Quite simply, rulemaking is the process of forming, amending, or repealing regulations. In addition, as part of rulemaking, after a regulation has been proposed, a notice will be provided by the Federal Department or Agency and persons or organizations may review the proposal and make written comments.
When substantial amount of information technology is applied towards the rulemaking process, it is called E-rulemaking. E-rulemaking uses information technology to improve the development and implementation of regulations, or more specifically, the technologies that are available may be utilized to help government agencies improve their information processing efficiency. Additionally, technologies can make it easier in many aspects for the public to participate in rulemaking. For example, a person interested in finding regulations that are open to comment can simply go to the website regulatons.gov and make a search based on topic, agency, keyword, or comments due on that day.
Furthermore, E-rulemaking lowers both the cost of accessing information and processing information. This is true because the accessing cost is lowered by the use of E-dockets and the processing cost is lowered with the advent of various forms of information technology tools. However, E-rulemaking is not just about making it easier for the public to comment on regulations. It is also about advances in information technology that will enhance both the government and the public’s ability to search, categorize, and analyze information related to rulemaking.
How Will E-rulemaking Change Public Input?
How will E-rulemaking change public input? To answer this primary question two sub-questions need to be answered. First, will the quantity of public input increase? Second, how will E-rulemaking affect the quality of public input?
In order to answer the question of whether the quantity of public input will increase, the reasons for lack of public participation needs to be determined. One possible explanation for the lack of public participation is that regardless of the amount of work required to participate in the process, the public is simply indifferent. Then again, people are rational and self-interested beings and it is highly unlikely that people will choose to not participate if the amount of benefit they can derive from participation is greater than the amount of work they have to put in. In prior times when E-rulemaking was unavailable, the commenting process might have been adjudged by many as not worth the trouble. However, nowadays, information technology has significantly lower the amount of work one has to put in. In this day and age, E-rulemaking is well within reach of most Americans and with a few mouse clicks one can open the gateway to participation.
On the sub-question of whether the quantity of public input increase, the answer is quite unequivocally, “yes.” Because E-rulemaking will make more people aware that their interests are being affected, it will increase public input. For example, with E-rulemaking, one can search for specific rules that are open for comments on a topic that he or she feels passionately about. When compared against sitting in a massive rectangular file room surrounded by walls of paper and files on all four sides, the appeal of E-rulemaking is irresistible. In contrast to the paper-filled filing rooms, E-rulemaking uses E-docketing, in which one can easily search for documents of interest or find regulations that are open to comment effortlessly. A simple search based on topic, agency, keyword, or comments due on that day will promptly pull up information of interest effectively and efficiently.
As to the other sub-question, the effect of E-rulemaking on the quality of public input is also a serious concern. There is a negative and a positive side to E-rulemaking. On one negative side, quality of public input is suffering from mass email campaigns. Many participants in mass email campaigns will use the same clone letter without adding in any new ideas of their own. Consequently, the agencies are bombarded with multiple copies with slight or no variation of a single idea.
This problem with mass emails has been persistent. The usual assumption that people make is that if more people participate in the policy making process, the more good it will create. Prior to the advent of emails, the public often used mass postcards. The same theme strikes again when it comes to mass emails, “the fact may be that the more they citizens participate in mass e-mail campaigns – without creating substantive, detailed, specific new information relevant to a decision – the lower the agency estimates the role of the public to be over time.”
The comments on the whole received by the EPA on the mercury rule demonstrate this problem well. “Mass-mailed form comments originating from various environmental and other interest groups make up the vast majority of comments submitted on rules; the mercury rule, for example, received almost 500,000 comments, only 4264 of which the EPA labeled original.” While the quantity of comments (duplicative and original) might have served as an indicator to the EPA the high number of people that care about the issues, it does not provide them with different inputs.
While emails have made it much easier for comments with original substance to reach agencies, it is also easier for clones of similar comments to bombard agencies. However, this bombardment has not had a big impact on government agencies since filtering software have been able to effectively block out these commentary “clones.” Filtering software is able to do this by detecting all the parts of the comment that are identical to others and filter it out, leaving only original comments written by the author of that particular comment.
However, on the positive side, public input is benefiting from other technologies such as E-docket rooms. E-docket rooms are websites that show the proposed new rules and the studies that support the rules. E-docket rooms create a virtual space that enables the public to comment and read others’ comments. It is a place where people can come together and deliberate issues online. It has replaced the hassle of rulemaking docket of ages past. The standard old rulemaking docket was a storehouse for documents and information related to a specific proposed rule. Before the advent of E-rulemaking, one would have to be in the physical vicinity of a specific rulemaking docket in order to have access to documents and information related to that particular proposed rule. Fortunately, these days, many Federal agencies have E-docket rooms.
The Environmental Protection Agency is one of the leaders in the E-docket room field. As stated before, E-docket rooms are websites that show the proposed new rules and the studies that support the rules. They are websites which allow the public to input their comments and read others’ comments. As a result, E-docket rooms act as a medium through which the public can carry on a dialogue to explore different issues of regulations. Consequently, by its very nature, E-docket helps to encourage people with different backgrounds, perspectives, or races to come together and deliberate on the proposed rules.
In short, the quality of the public comments has significantly improved due to E-rulemaking. Thus, while it appears that the ease of commenting created by technology is a double edged sword, after weighing all factors, the positive effects of E-rulemaking outweighs the negative effect of mass emailing.
Will E-rulemaking draw in new sectors of society that were previously not involved?
An analogy can be made between E-rulemaking’s effect on democracy and infrastructure’s effect on commerce. With better infrastructure, businesses can reach deeper and more efficiently into different geographical areas. Similarly, with a better information system, democracy can reach deeper into different demographies of society. Prior to the E-rulemaking, commenting on rules has been excessively burdensome, accessible by large organizations but impractical for small groups or individuals. It is like having a toll way system that charges too high a fee and one which only select businesses will be able to utilize. In the past, the playing field was unquestionably tipped in the favor of larger organizations, but E-rulemaking is changing the scene. With E-rulemaking, a significant new portion of society will find the process within their reach.
According to a survey done by the Pew Foundation, 42 million Americans accessed federal regulations through the internet in 2001, and 23 million Americans commented on proposed rules, regulations, and policies. Furthermore, according to National Archives, in year 2001, Americans retrieved more than 65 million documents from the online Federal Register . This data shows that a significant number of Americans are already actively participating in the E-rulemaking process.
Nevertheless, there is concern that E-rulemaking, instead of equalizing access to the rulemaking process, will create an even greater participation bias between people of different income level, educational background, gender, or race. It is important to keep in mind that since one cannot take advantage of E-rulemaking unless one has access to internet, an analysis of internet access rate for people of different income level, educational background, gender, or race will be necessary to shed light on this subject.
Such analysis shows that as of February 3rd, 2005, there are 199,861,345 internet users in the United States, or 68.8% of the population. In comparison, the internet usage rate was 62% of the population back in 2001. In other words, approximately seven out of every ten Americans have access to internet today and this number is continuing to grow. Despite these positive facts, not all sectors of society have equal access to the internet.
This begs the question; does the rich have significantly more access to E-rulemaking than the poor? In answer, we must take a look at internet access rate difference between different income classes. When we do so, it is easy to see that there is an undisputable correlation between income level and internet access rate.
Data from 2001 (Family Income/internet access rate)
i.$75,000 + (82.1%)
ii.$50,000 $74,999 (69.2%)
iii.$30,000 $49,999 (54.5%)
iv.$15,000 $29,999 (35%)