E-Rule Making

"Simply put, our goal is to make your government more accessible to all Americans."

-President George W. Bush, March 2002

Thesis

Although E-rulemaking has its flaws, it nevertheless warrants a try because it will help to legitimize democracy. E-rulemaking promotes the legitimization of democracy by lowering information costs, increasing public participation, and improving deliberation and communication between different members of society.

Until recently, information technology has been serving an ancillary role to democracy. The word "democracy" is defined as "government by the people, either directly or through representatives." With the advent of E-rulemaking, however, the playing field for democracy has been irrevocably altered. A marriage has thus been formed between information technology and the very concept of democracy.

By definition, democracy is not government by a selected few. If only a few participates in a decision making process that affects them, democracy will be falling far short of its ideals. Thus, in order to have effective government by the people, a few key elements ought to be satisfied.

First, there should be public participation. Without public participation, it would not be a government "by the people." Second, the public should have reasonable access to the information that is essential for the issues at hand. The public cannot make good decisions when denied relevant information. Moreover, without knowing which laws will be affecting them, the public would not know when they need to participate and when they should participate. Currently, through the use of online commenting, the internet is the best way for the public to provide input to the government. Consequently, the internet is arguably the best way for the public to receive information relevant to rulemaking. However, there is one caveat. Unless the "digital divide" problem can be solved, true public participation will not exist. On this point, this paper will show that science, not politics will ultimately bridge the digital divide.

The final element to be satisfied in order to have an effective democracy requires that the public have an accessible, deliberative process where view points may be exchanged with one another. Accordingly, the democratic process will be enhanced in several ways. Having a deliberative process will force each participant to examine his or her logic and arguments carefully. In addition, it may serve to introduce to those participants new facts or viewpoints not previously considered by those particular individuals. As a final point, it is also important to note that the process of deliberation alone gives people a sense of fairness.

E-rulemaking vs. Traditional Rulemaking

The Federal Departments and Agencies are responsible for creating regulations to implement statutes through a process called rulemaking. Quite simply, rulemaking is the process of forming, amending, or repealing regulations. In addition, as part of rulemaking, after a regulation has been proposed, a notice will be provided by the Federal Department or Agency and persons or organizations may review the proposal and make written comments.

When substantial amount of information technology is applied towards the rulemaking process, it is called E-rulemaking. E-rulemaking uses information technology to improve the development and implementation of regulations, or more specifically, the technologies that are available may be utilized to help government agencies improve their information processing efficiency. Additionally, technologies can make it easier in many aspects for the public to participate in rulemaking. For example, a person interested in finding regulations that are open to comment can simply go to the website regulatons.gov and make a search based on topic, agency, keyword, or comments due on that day.

Furthermore, E-rulemaking lowers both the cost of accessing information and processing information. This is true because the accessing cost is lowered by the use of E-dockets and the processing cost is lowered with the advent of various forms of information technology tools. However, E-rulemaking is not just about making it easier for the public to comment on regulations. It is also about advances in information technology that will enhance both the government and the public's ability to search, categorize, and analyze information related to rulemaking.

How Will E-rulemaking Change Public Input?

How will E-rulemaking change public input? To answer this primary question two sub-questions need to be answered. First, will the quantity of public input increase? Second, how will E-rulemaking affect the quality of public input?

In order to answer the question of whether the quantity of public input will increase, the reasons for lack of public participation needs to be determined. One possible explanation for the lack of public participation is that regardless of the amount of work required to participate in the process, the public is simply indifferent. Then again, people are rational and self-interested beings and it is highly unlikely that people will choose to not participate if the amount of benefit they can derive from participation is greater than the amount of work they have to put in. In prior times when E-rulemaking was unavailable, the commenting process might have been adjudged by many as not worth the trouble. However, nowadays, information technology has significantly lower the amount of work one has to put in. In this day and age, E-rulemaking is well within reach of most Americans and with a few mouse clicks one can open the gateway to participation.

On the sub-question of whether the quantity of public input increase, the answer is quite unequivocally, "yes." Because E-rulemaking will make more people aware that their interests are being affected, it will increase public input. For example, with E-rulemaking, one can search for specific rules that are open for comments on a topic that he or she feels passionately about. When compared against sitting in a massive rectangular file room surrounded by walls of paper and files on all four sides, the appeal of E-rulemaking is irresistible. In contrast to the paper-filled filing rooms, E-rulemaking uses E-docketing, in which one can easily search for documents of interest or find regulations that are open to comment effortlessly. A simple search based on topic, agency, keyword, or comments due on that day will promptly pull up information of interest effectively and efficiently.

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