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Taking Rulemaking Procedures Seriously in Bending the Rules by Rachel Augustine Potter

Notice-and-comment rulemaking is often thought of as a fixed process: if agency X follows the process then it creates binding regulation Y. Yet, there is considerable variation in how the notice-and-comment rulemaking process actually proceeds. For instance, Trump’s Environmental Protection Agency allotted only 15 days for public comment on a recently proposed rule. This amount of time falls well short of the EPA’s own guidelines, which call for a minimum of 30 days for public comment, and the federal recommendation, which calls for 60 days. (The Administrative Procedure Act merely directs agencies to offer a period for written public comment after a proposed rule is published, but does not say how long the period need be.)

Some of the variation we observe in the rulemaking process can be attributed to statutory requirements, but much of it cannot. Much is left to agency discretion, and agency bureaucrats can use that discretion to strategically insulate their rulemakings from political interference, a tactic I refer to as “procedural politicking.” In my new book Bending the Rules: Procedural Politicking in the Bureaucracy (University of Chicago Press), I evaluate how procedural tactics provide agencies with an opportunity to shape how outsiders—particularly those most important to the agency in Congress, the White House, and the courts—respond to a rule and perceive its potential consequences.

To unpack procedural politicking systematically, I use a variety of approaches, including case studies, text analysis, and statistical analysis. The data I rely on cover more than 10,000 rules issued by 150 executive branch agencies over a 20-year period (1995–2014). The overall portrait that emerges from this study is one of bureaucrats carefully applying procedures in ways that insulate controversial rules from political attacks and help ensure that these policies become binding law.

The Value of Procedures in Rulemaking

Within my field of political science, procedural maneuvering has long been recognized as a means for achieving strategic ends in Congress. For instance, Representative John Dingell (D-MI), who served in the US House of Representatives for nearly 60 years, once quipped, “If you let me write the procedures and I let you write the substance, I’ll [beat] you every time.” Additionally, budget reconciliation procedures that allow members to sidestep the critical 60-vote filibuster threshold have been used strategically to pass major policy reforms, including welfare reform in 1996, the 2001 and 2003 Bush tax cuts, and the Affordable Care Act in 2010.

This logic of procedural maneuvering is not typically extended to the bureaucracy—despite the fact that bureaucratic politics is rife with procedures. This disconnect owes in part to our differing assumptions about what drives these actors. We tend to assume that members of Congress are largely motivated by the strategic pursuit of reelection (and, to some extent, policy). It is less straightforward, however, to make a unifying assumption about bureaucrats’ motivations, since they may be driven by disparate goals relating to policy preferences, career aspirations, or public service. I sidestep this debate by pointing out that, irrespective of individual motivations, all bureaucrats in an agency are likely to fare better when an agency’s rule succeeds (i.e., becomes a binding final regulation) compared to when a rule fails (i.e., it is overturned by some part of the separation of powers oversight system). My argument builds from the basic premise that, once a rule is proposed, agencies work to avoid having it overturned. From the point of proposal onward, how an agency manages the procedures associated with a particular rulemaking can have a profound impact on its ultimate success or failure.

Specifically, I consider how bureaucrats leverage three distinct classes of rulemaking procedure: writing, consultation, and timing. With respect to writing, I focus on how agencies approach the drafting of a proposed rule. Crafting a rulemaking proposal presents agency bureaucrats with numerous choices, such as how to frame an argument, how much detail to provide in the preamble, how accessible to make the text (i.e., lots of jargon or little), and which analytical assumptions to apply (if a quantitative analysis is performed). Each of these choices can bolster the prospects for the proposal’s survival. And I find evidence that agencies do approach writing with this strategic lens; for instance, agencies tend to write longer preambles for their proposed rules when they expect courts to more closely scrutinize their work.

Consultation with affected stakeholders is another avenue for procedural politicking. As the earlier EPA example highlighted, the comment period is the primary mechanism by which agencies consult the public about their rulemaking procedures, and agencies have discretion in setting the length of that period. But agencies also conduct consultation through other means—for example, private meetings with individual stakeholders during the proposed rule preparation period, public hearings, and focus groups. I argue that agencies take pains to forecast and manage the type of feedback a particular rulemaking proposal is likely to receive and to adjust the level of consultation accordingly. Whether the information is collected publicly or privately matters too. Positive feedback that an agency receives on a particular rule—be it a statement of support from individuals at a hearing or endorsements from interest group officials in a letter—can help a rule’s prospects. Agency officials frequently tout this support for rules in congressional hearings and in public statements. However, negative feedback can have the opposite effect, substantially diminishing the prospect that a particular rule goes on to become binding law.

Finally, control over timing allows agencies to influence how a rule is perceived. Rules come onto the public’s radar at specific points in their lifecycle, such as when a proposal or final rule is published in the Federal Register, or when the rule takes effect. Agencies strategically manage this timing, because what might be perceived as a rash or ill-conceived policy in one political environment may be regarded entirely differently in another. Thus, an agency might speed up the timeline of a particular rulemaking in order to capitalize on a favorable political climate or, conversely, slow it down in order to wait out a disadvantageous situation.

Because of its mundane and esoteric nature, procedural politicking often flies under the radar. Yet it is a strategic tool that affords unelected bureaucrats considerable influence over the direction of regulatory policy in the United States. The implication is that we should pay much more attention to the types of people we select—on both the careerist and political appointee levels—to run the federal bureaucracy.

Rachel Augustine Potter (rapotter@virginia.edu @raugpott) is an Assistant Professor in the Department of Politics at the University of Virginia. Her research focuses on American political institutions, bureaucratic politics, and regulation.

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