Should the Public Get to Participate Before Federal Agencies Issue Guidance? An Empirical Study

Abstract

When issuing binding regulations, agencies must follow procedural safeguards (including notice-and-comment) that allow the regulated industry and other stakeholders to participate in formulating agency policy. But regulations always leave gaps and ambiguities. Because of this, agencies also issue huge amounts of “guidance,” that is, statements to advise the public on how the agency is tentatively planning to exercise all the discretion that its regulations have left to it. Because guidance is not binding, agencies issuing it need not follow any procedural safeguards. This is what allows them to issue so much of it so quickly.

While ubiquitous and essential, guidance also entails a certain danger. To the extent that officials follow guidance rigidly—and they sometimes do—guidance documents become de facto binding regulations, but ones that the agency issues at will, with the public having no say. One might think the solution is to get agencies to use guidance less rigidly, but that is easier said than done, since it is inherently difficult for large cross-pressured organizations like the federal government to be flexible.

An alternative solution is to beef up the procedure by which agencies issue guidance in the first place to make it more participatory. This solution has recently been proposed by academics, members of Congress, and presidential administrations. But the literature on the proposal is mainly theoretical, without much empirical understanding of how these participatory arrangements work when they are tried, or what their consequences are. To fill the gap, this Article draws upon interviews with 135 individuals who had firsthand experience with guidance as employees of agencies, industry, or non-governmental organizations (NGOs). While the interviews indicate that public participation in the issuance of guidance is sometimes worthwhile, they also provide a body of new evidence that the benefits of such participation are uncertain, and the pitfalls complex and potentially severe, in ways that are unknown or underexplored in the literature. In analyzing the interviews, this Article aims to provide a realistic and concrete assessment of participation’s value and a guide for what factors an agency needs to evaluate (and what pitfalls it must anticipate) in deciding when and how to invite participation—factors and pitfalls that vary substantially across agencies and even across documents. In light of this variation, I conclude that decisions about whether and how to invite participation should normally be made on a relatively local basis: document by document, or, at most, agency by agency. I caution against hard government-wide mandates of the kind proposed by some lawmakers and scholars.