By almost any measure, the conventional model of informal rulemaking is quite transparent.327 Under the APA as interpreted by
323. Id. at 402.
324. See Cary Coglianese, Heather Kilmartin & Evan Mendelson, Transparency and Public Participation in the Federal Rulemaking Process: Recommendations for the New Administration, 77 GEO.WASH.L.REV. 924, 932 (2009) (reading the case law as clarifying “that there is no inherent legal bar” against “interactions with external entities following the issuance” of the notice of proposed rulemaking); Rubin, supra note 311, at 119–20 (“[P]rovisions [that bar ex parte communications relevant to the merits of the proceeding and require other ex parte contacts to be placed on the public record] do not apply to informal rulemaking under [5 U.S.C.] § 553 . . . .”); Watts, supra note 266, at 48 (“The APA expressly regulates ex parte contacts in the context of formal adjudications and formal rulemakings required to be conducted on the record but not in the context of informal notice-and-comment rulemakings.
This suggests that Congress did not intend to prohibit or limit ex parte communications, including those coming from political actors, in informal rulemakings.” (footnote omitted)).
325. Rubin, supra note 311, at 120.
326. See supra text accompanying note 193.
327. See Coglianese et al., supra note 324, at 930 (“Compared to many other countries, the United States has long had a relatively open and transparent rulemaking process.”); Jacob E.
Gersen & Anne Joseph O’Connell, Hiding in Plain Sight? Timing and Transparency in the
the courts, agencies must identify the information that they have relied on and the policy judgments that determine the outcome of individual rulemakings in their notices of proposed and final rulemaking.328 But OIRA review is not governed by the APA, and the transparency of that review process has waxed and waned over the years.329 Negative reactions by beneficiary groups to attempts by regulated interests to influence rulemaking outcomes through sympathetic officials in OIRA during the 1980s resulted in somewhat more transparency with respect to communications between outsiders and OIRA—as well as between OIRA and the agencies—while rules are pending.330 Often this information winds up in the administrative record, either because the agency places it there or because one of the participants submits it.331
The content of conversations between lobbyists and agency officials during the preproposal stage of informal rulemaking, however, need not be disclosed to the public; nor do communications among lobbyists, officials in OIRA, and the immediate inner circle at the White House have to be disclosed.332 OIRA review remains far
Administrative State, 76 U.CHI.L.REV. 1157, 1161–62 (2009) (“Conceptually, we note that administrative agencies in the United States are some of the most extensively monitored government actors in the world. Almost all policy decisions an agency makes must be published in the Federal Register for all to see.”).
328. See RICHARD J. PIERCE, JR., SIDNEY A. SHAPIRO & PAUL R. VERKUIL, ADMINISTRATIVE LAW AND PROCESS §§7.2,7.3.3,at 382–84, 390–92(5th ed. 2009)(describing the Court’s jurisprudence requiring agencies to provide substantial evidence from agency rulemaking procedures in order to enable judicial review of agency decisions).
329. See Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 COLUM.L.REV. 1260, 1309–10 (2006) (“OIRA has a long and well-documented history of secrecy. Although sustained criticism in the 1980s led to reforms that made the review process more transparent, it remains remarkably difficult today for outsiders to get a strong grasp of what OIRA review entails.” (footnote omitted)).
330. Harold H. Bruff, Presidential Management of Agency Rulemaking, 57 GEO.WASH.L.
REV. 533, 580–82 (1989) (describing the pressure to reform OIRA).
331. See id. at 582–86 (describing OIRA’s increased transparency following 1986 reforms);
Kagan, supra note 209, at 2287 (“[A]fter publication of the regulatory action (or a decision not to go forward with it), OIRA was required to disclose all written communications between itself and the agency.”); John Shattuck & Muriel Morisey Spence, The Dangers of Information Control, TECH. REV.,Apr.1988,at 62,72 (“[Congressional efforts to cut OIRA’s funding]
prompted OIRA director Wendy Gramm to set up a policy of disclosing OMB exchanges with other agencies . . . .”).
332. See Wagner, supra note 5, at 1368 (“The agency must log its ex parte contacts in the public record only after publishing the proposed rule and generally not before.”). In 1986, OMB reached an agreement with members of the Senate Committee on Governmental Affairs in which it agreed to send to agencies the written materials it had received from outside parties and to advise the agency of all of its outside communications. Bruff, supra note 330, at 582–83. I am aware of no judicial holding that these disclosures were required; and, more importantly, the
from transparent because the rules of engagement with agencies are often ignored in practice.333 A 2011 study concluded that OIRA had routinely violated the governing executive order’s334 requirement that OIRA disclose the content of its communications with agencies.335
Still another round of conversations between industry and interest-group representatives and government officials may take place after the rule has been challenged in court,336 a virtual certainty in high-stakes rulemaking. At that time, the parties will negotiate about the content of the regulations as part of an overall effort to settle the litigation amicably.337 These negotiations are not bound by any rules or procedures, and the content of the discussions is not generally available to the public.338
Similarly, I am not aware of any disclosure requirements regarding the content of conversations between lobbyists for affected entities and members of Congress or their staffs, even when the lobbyists are feeding questions to members of committees or drafting rifle-shot legislation to overturn or delay ongoing rulemaking. Indeed, the riders themselves are often far from transparent, and members may vote favorably on legislation containing riders without even knowing that the riders are in the bill.339 And I am unaware of any requirement that the provenance of attack advertisements and other sophisticated public-relations exercises be disclosed to the public.
Think tanks functioning as 501(c)(3) charities need not disclose the identities of the individuals who have contributed to their coffers or
agreement did not oblige the agency to disclose the information it received from OMB to the public. See id. at 583 (noting that OMB agreed to “make[] available in its public reading room written materials and lists of meetings and communications involving persons outside the federal government”).
333. See Bagley & Revesz, supra note 329, at 1309–10 (describing OIRA’s stubborn lack of transparency); Mendelson, supra note 262, at 1354 (noting the difficulty of determining the influence of executive review on specific rules).
334. Exec. Order No. 12,866, 3 C.F.R. 638 (1994), reprinted as amended in 5 U.S.C. § 601 app. at 745 (2006), and 5 U.S.C. § 601 app. at 108 (Supp. IV 2010).
335. STEINZOR ET AL., supra note 188, at 7.
336. Wagner, supra note 5, at 1369.
337. See id. (“Litigation thus opens the doors to a second round of negotiations that, even more than the pre-NPRM period, can involve secret deals over details, interpretations, and related features of a rule with only a narrow slice of the affected interests.”).
338. Cf. id. at 1369–70 (explaining that the privileged status of this round of negotiations contributes to an even greater degree of secrecy).
339. Beermann, supra note 207, at 88–89.
the content of their interactions with their sponsors.340 And bloggers who may receive substantial support from industries that have been aided by those bloggers’ attacks on regulatory agencies do not have to reveal such support in their blogs and podcasts.341 In short, the aspects of informal rulemaking that fall within the conventional model are modestly transparent, whereas the blood-sport strategies that often characterize high-stakes rulemaking are generally shielded from public disclosure.