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2 Mich. J. Envtl. & Admin. L. 123 (2012-2013)
Rulemaking vs. Democracy: Judging and Nudging Public Participation That Counts

handle is hein.journals/michjo2 and id is 123 raw text is: RULEMAKING VS. DEMOCRACY: JUDGING AND NUDGING PUBLIC PARTICIPATION THAT COUNTS Cynthia R. Farina,* Mary Newhart,**Josiah Heidt*** & CeRI**** This Article considers how open government magical thinking around tech- nology has infused efforts to increase public participation in rulemaking. We propose a framework for assessing the value of technology-enabled rulemaking participation and offer specific principles of participation-system design, which are based on conceptual work and practical experience in the Regulation Room project at Cornell University. An underlying assumption of open government enthusiasts is that more public participation will lead to better government policymaking: If we use technology to give people easier opportunities to participate in public policymaking, they will use these opportunities to participate effectively. However, experience thus far with technology-enabled rulemaking (e-rulemaking) has not confirmed these as- sumptions. To the extent that new participants have engaged with the process, their engagement predominantly takes the form of mass comment campaigns or- chestrated by advocacy groups. The conventional response to this new participation-by agencies and academics alike-has been to regard mass com- menting as worse than useless. Recently, though, Professor Nina Mendelson argued for rethinking this response. Exploring the relationship between rulemak- ing and democratic government, she proposes that agencies should take account of the value preferences expressed in such comments when rulemaking involves val- uejudLgments. Engaging this important argument, we suggest that not all citizens' prefer- ences about policy outcomes are created equal. We present a typology that captures important differences in information quality and deliberativeness of preference formation. Unlike electoral democracy (in which participation based * McRoberts Professor of Research in Administration of the Law; CeRI Principal Researcher. I am extremely grateful to Dr. Stuart Shulman, University of Massachusetts Amherst, whose work on mass commenting has informed our approach on Regulation Room, and who has consented to our use of several screenshots in the Appendices, which he originally collected. This article is based upon work supported by the National Science Foundation under Grant No. NSF IIS-1111176. Any opinions, findings, and conclusions or recommendations expressed are those of the authors and do not necessarily reflect the views of the National Science Foundation. ** CeRI Executive Director and Senior Researcher. CeRI E-Government Fellow, J.D. 2011. ... CORNELL ERULEMAKING INITIATIVE (CERI), http://www.lawschool.cornell.edu/ceri/. 123

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