Cary Coglianese is the Edward B. Shils Professor of Law, Professor of Political Science, and Director of the Penn Program on Regulation at the University of Pennsylvania Law School. He is the founder of and faculty advisor to RegBlog.
Agencies use the Internet for many different purposes, communicating through their websites valuable information to the public not only about rulemaking, but also about a variety of other issues and activities. The proliferation of competing demands for communication makes rulemaking only one – perhaps even to some, a relatively minor one – of the many priorities under consideration when agency officials make decisions about the design and functionality of their websites. As a result, the risk exists that agencies will make website design decisions without giving due consideration to the values of public participation reflected in the various laws and executive orders that have called upon agencies to use electronic media to enhance the public’s understanding of and role in rulemaking. Indeed, an emerging approach to government website design focuses on giving prominence to “top tasks” sought by members of the public. Such an approach certainly has much to be said for it. But an exclusive focus on current website use or demand will probably push information about rulemaking, and online opportunities for public commenting on rulemaking, far into the background — simply because the volume of website traffic generated by online government services performed by many agencies dwarfs the traffic related to rulemaking. Rulemaking may perhaps never be a “top task” in terms of the numbers of web users, but in a democracy few tasks compare in significance with the ability of government agencies to create binding law backed up with the threat of civil, and even criminal, penalties.
For this reason, officials who make decisions about the design of and content on their agencies’ websites should ensure that rulemaking information will be easily accessible to ordinary individuals – not just displayed in a way that comports with current traffic or usage patterns. Consider, as an example, the website for the Federal Communication Commission (FCC). The FCC website recently received a major redesign, making it perhaps the most up-to-date website design of any federal agency, with many appropriate and useful improvements made after extensive public input. Nevertheless, from the standpoint of making rulemaking information accessible to ordinary citizens, it is striking the website is not as clear and accessible as the agency’s former site. The new site does not list “rulemaking” or “regulation” prominently on the home page. Instead, the new site includes a tab for “rulemaking” as one pull-down option under the heading “Business and Licensing.”
Of course, if a citizen seeking to find out about FCC’s policy work goes to the FCC website, she might be forgiven for not looking for a tab labeled “Business and Licensing.” She might be expected first to click on the tab for “Our Work” — but she will not see there any option for rulemaking. Only if she clicks further under “Our Work,” on a pull-down labeled “Consumers,” and then goes to another webpage, will she find a section toward the bottom for rulemaking. There she will find — under a heading obliquely called “Related Content for Consumers” — an incomplete list of the agency’s proposed rules. Alternatively, if she clicks the “Take Action” button on the home page and then further chooses the pull-down menu item for filing a public comment, she will find a list of the Commission’s “Most Active Proceedings” – although some of these proceedings appear to be largely if not fully completed, such as a listing for the FCC’s National Broadband Plan. Other entries under the “Most Active Proceedings” contain no description whatsoever, which will make it hard ordinary citizens to use. For example, a listing for the AT&T/T-Mobile merger which – while perhaps self-explanatory at a certain level – offered no summary of the proceeding, such as deadlines, standards for agency decisions, or links to any for other supporting materials. The user presumably could not even glean from the website that the AT&T/T-Mobile proceeding is not a rulemaking, to the extent that matters. Of course, it is possible to go to the search page for all FCC proceedings, type in the proceeding number for the AT&T/T-Mobile merger, and find relevant FCC notices and documents. But surely it would also be helpful for members of the public to see a summary or more descriptive account of the proceeding at the outset – especially when the proceeding appears on a list and that same kind of information can already be found elsewhere in the system.
The point here is not to single out the FCC or its website for criticism. To the agency’s credit, its website provides a prominent access point for comments, it lists some of the more significant proceedings, and for some of these it includes precisely the kind of summaries helpful to a layperson. Other agencies do not provide even nearly the same level of accessibility — and that is the point. If even on what could be considered a state-of-the-art agency website it can be cumbersome for ordinary citizens to find rulemaking information, then presumably more work remains across the entire federal government.
Web designers have an understandable, if not even desirable, tendency to create sites that meet the needs of their primary users. This is perfectly sensible in most contexts. In the context of government agencies making binding laws, however, a commitment to well-accepted democratic principles should lead agency web designers to create sites that are at least neutral across user types, if not even more accessible to less sophisticated or one-shot participants in the rulemaking process. Placing a primary link to rulemaking information under a tab labeled “business” — to use the FCC again as an illustration — may well reflect the reality that businesses are both the most frequent users of agency websites and the most frequent commenters on agency rulemaking. But such thinking does not fit with the ideal of making the rulemaking process as accessible to ordinary citizens as it is to sophisticated repeat players.
This RegBlog post is drawn from Professor Coglianese’s recent report to the Administrative Conference on the United States on Federal Agency Use of Electronic Media in the Rulemaking Process (July, 2011).