E-RULEMAKING AND DEMOCRACY
成果类型：
Article
署名作者：
Moxley, Lauren
刊物名称：
ADMINISTRATIVE LAW REVIEW
ISSN/ISSBN：
0001-8368
发表日期：
2016
页码：
661-699
关键词：
摘要：
E-rulemaking-the use of digital technologies in forming regulations has democratized the highly technical, highly consequential regulatory process, breathing life into the two core democratic promises of the notice-and-comment process that for decades languished in crowded docket rooms in Washington. First, e-rulemaking has enhanced democracy in the participatory sense. By making rulemaking materials broadly available, e-rulemaking enables public participation on a scale that was unthinkable when notice and-comment rulemaking was a paper-based process. This in turn allows agencies to use public comments as a gauge of public opinion, a political temperature check, a tool to inform their understanding of capital-P-Politics the sort of media-sensitive, partisan political pressure that touches so much of modern governance. Second, e-rulemaking has enhanced democracy in the epistemic sense. Digital technologies allow agencies to harness the dispersed information power of the American people in order to form more substantively sound regulations that are informed by small-p-politics the sort of empathetic, objective, and inquisitive set of values that underlie the very purpose of administrative agencies as depoliticized institutions bringing expertise to bear to improve the general welfare of an increasingly complex society. In the summer of 2014, e-rulemaking enabled the FCC to receive and process an unprecedented 3.9 million public comments on its proposed net neutrality rules. In February 2015, the FCC promulgated the final net neutrality rules, which were upheld in total by the United States Court of Appeals for the District of Columbia Circuit in June 2016. The net neutrality rulemaking illustrates how the Internet has enabled the participatory postulate of notice-and-comment rulemaking, long relegated to the realm of democratic potential, to become a democratic reality. Yet the rulemaking also indicates that the less stringent cost-benefit analysis requirements placed on independent agencies like the FCC make them more prone to embrace e-rulemaking's participatory, as opposed to epistemic, democratic values. For the experiment of e-rulemaking to succeed in not only narrowing the juncture between the public and the regulatory process, but also in capturing the widely held information power of the American people in order to facilitate the kind of depoliticized decisionmaking that leads to better regulations and ultimately enhances social welfare, the epistemic democratic capacity of e-rulemaking must be protected vigilantly. Rigorous empirical requirements like those placed on executive agencies may be the best guarantor of those epistemic democratic values.