It is a well-known tenet of democracy that citizens must have access to information about the government’s activities, as well as the means by which to interact with the government to spur policy changes. Unfortunately, the increasing size and complexity of modern government has made it ever-more difficult for the public to be aware of—and engage with—policymaking that emanates from the federal government.
As part of a recent series of papers compiled by the Congressional Research Service, Clinton T. Brass and Wendy Ginsburg focus on how Congress has evolved over time to promote the principles of transparency and “stakeholder engagement” via legislative reforms.
In particular, they discuss how Congress has passed numerous laws over the years that “embed values of transparency, participation, and representation into agency activities.” These laws help ensure that the public is aware of important laws and regulations, and give non-government stakeholders the ability to participate in the policymaking process.
The authors start by discussing the Budget and Accounting Act (1921) and the Federal Register Act (1935), two early efforts to increase government transparency. The budget act created a more formal budget process, mandated executive branch reporting requirements, and established the watchdog General Accounting Office, which eventually became the Government Accountability Office.
The Federal Register Act paved the way for Code of Federal Regulations, the government periodical in which government rules are memorialized and recorded. The Code’s genesis is especially interesting as it arose in response to an embarrassing Supreme Court incident during the New Deal era in which the government had to admit to the Court that it was seeking to enforce a law that didn’t exist (since an improper version of the regulation had been submitted to the printer).
Each of these early laws served a dual purpose: they gave citizens and stakeholders the ability to track the activities of federal agencies, while also giving Congress an enhanced ability to oversee agency activities and hold agencies accountable. In other words, they equipped those who were outside federal agencies with greater information about executive branch activity.
Perhaps the most significant effort Congress made to standardize and democratize the rulemaking process of agencies was the Administrative Procedure Act, passed in 1946. As the authors recap, the point of the APA was to: (1) require agencies to keep the public informed and up-to-date on agency activities; (2) provide for public participation in the rulemaking process; (3) prescribe uniform standards for rulemaking and adjudicatory proceedings; and (4) restate the standards for judicially reviewing agency actions.
The APA gave outside stakeholders the tools they needed to inform themselves about government policies and allowed them to communicate directly with the government about those policies. Promoting this type of “stakeholder engagement” was also the rationale behind other congressional legislation which sought to increase transparency and public participation in agency activities, including laws like the Freedom of Information Act, the Federal Advisory Committee Act, and the Government in the Sunshine Act.
In more modern times, Congress has taken advantage of new technologies like the Internet to promote these goals. For example, the Government Performance and Results Act of 1993 required agencies to articulate mission statements and create multiyear strategic plans and retrospective annual reports. The GPRA Modernization Act of 2010, which updated the 1993 Act, required OMB to create a public website that contains metrics and information on agency performance.
Although these legislative reforms were well-intended and broadly effective, the authors also note increased transparency and stakeholder engagement come with costs. The advent of new technologies for disseminating information, coupled with increased opportunities for public involvement in rulemaking, has left Congress swamped with information and stakeholder demands. This overload is particularly concerning given Congress’ recent habit of cutting legislative branch staff and resources. The authors also point out that diverting resources within an agency toward promoting greater transparency can undermine other important agency priorities.
In a similar vein, increased transparency and stakeholder engagement could alter how information is used and controlled. The authors use the Obama administration’s Open Government Directive, which required federal agencies to release certain datasets to the public, as an example. While the release of datasets can improve data quality through tools like “crowdsourcing,” it can lead to outside groups (intentionally or unintentionally) manipulating datasets and/or presenting skewed interpretations of data. It can also once again add to information overload that actually makes it more difficult for the public and Congress to get a clear picture of agency policymaking.
As the authors put it, Congress has made much progress over time in enhancing transparency and stakeholder engagement “in a way that increases the intensity with which agencies interact with non-Federal stakeholders.” This trend has been accelerated by changes in technology and has helped address the information asymmetries between federal agencies and outsiders.
But Congress also needs to look long and hard at itself, and consider ways to adapt to this new context where the executive branch is immense, information is plentiful, and pluralist demands are intense.
Jarrett Dieterle is a governance fellow at the R Street Institute.