Federal process for making rules is democratizing

With two small children at home, Susan Webb Yackee goes through a lot of peanut butter.

But although many Americans don’t think much about what’s in their peanut butter, Yackee is one of few who knows that the childhood favorite must contain at least 90 percent peanuts, as well as how that standard was established.

Yackee, associate professor at the University of Wisconsin–Madison’s La Follette School of Public Affairs and Department of Political Science, is a leading scholar on the regulatory policymaking process at federal agencies.

She’s published groundbreaking studies on the rulemaking process, a relatively transparent and potentially democratizing system that affects standards for everything from child car seats to organic food, clean air to derivatives trading.

In the coming months, Yackee will also dig into a study of Wisconsin’s rulemaking process, which features greater legislative involvement than at the federal level.

“Regulatory policymaking can seem overly legalistic and is somewhat removed from the fast-paced world of legislative policymaking, but the stakes are equally high,” she says. “All of us, when we walk out of our house every morning, are impacted by existing rules and regulations, and just for that, we should be concerned about them and who influences the rulemaking process.”

While anyone who’s taken a high school civics course knows the basics of how a bill becomes a law, the process of rulemaking, which can have as much influence — or more — on the daily life of Americans, is lesser known and studied.

Yackee’s efforts to produce comprehensive data for the empirical study of rulemaking processes on a large scale are unprecedented, says Carolyn J. Heinrich, professor and director of the La Follette School of Public Affairs.

“Undertaking research to identify, untangle and explain the influence of interest groups on government regulations through rulemaking requires substantial original data collection, interviews with government rule writers, surveys of interest groups and codification of information in government documents,” Heinrich says. “Before scholars such as Susan Yackee started investing in research in this area, our understanding of these processes, and who has a role in influencing them and policy outcomes, largely remained a black box.”

Yackee says she relishes contributing research that breaks new ground, adding to knowledge about the process of rulemaking while improving government along the way.

It’s important for UW–Madison students to have the opportunity to study Yackee’s work, because an understanding of rulemaking will be critical to those who pursue careers in public affairs, says John Coleman, professor and chair of the political science department.

“If you want to be effective in those positions, you’d better understand how rulemaking works, because it’s where an awful lot of the action happens,” Coleman says. “Passing a law is often only the beginning and if that’s all you focus on, your competitors will be running circles around you and you’ll find yourself surprised more often than you should be.”

Modern rulemaking dates to 1946, when Congress standardized the process for crafting rules and put in place a system that requires an element of public participation. When a federal agency drafts a potential rule, it then opens the rule for public comment, during which any citizen or group may provide feedback.

Before an agency puts a finalized rule in place, it is required to carefully consider the public comments received, and if the rule doesn’t reflect them, the agency is compelled by law to explain why. The state of Wisconsin has similar public participation opportunities during rulemaking.

“It’s a very deliberative process where citizens, if they wanted to, could get involved and see a response to their feedback,” Yackee says. “I’ve found this whole process has the prospect of a very democratizing effect on the U.S. citizenry.”

The process tends to move faster than many people believe. Yackee and her husband, Jason Webb Yackee, an assistant professor in the UW Law School, this year published a first-of-its-kind evaluation of the length of time it takes for rules to be written and put in place, which they put at an average of 14 months.

Yackee’s research has also shown that the process has been responsive to input from the public, particularly when represented by interest groups. A study of 1,693 comments on 40 rules issued by federal agencies, conducted with Amy McKay, an assistant professor at Georgia State University, found strong evidence showing that federal officials listen to interest groups and tend to favor the side that dominates the comments.

But while that finding signals the public does have the ability to influence the rules that will govern them, few individual citizens, as opposed to organized groups, participate in the process.

“While participation has been poor in the past for average citizens, the ease of the Internet and social media means citizens will be able to provide informed opinions to regulators,” she says.

Some may be troubled by Yackee’s recent findings about how rules are drafted. Interest groups with a stake in a rule tend to be intimately involved in the writing of draft rules, her research shows.

In some ways, they bring a positive influence, she says, because it means the rules are crafted using the best possible data from those who will be most affected. However, she’s concerned about the transparency of the “potentially nefarious” side of the behind-the-scenes process.

“People who participate in lobbying outside the standard rules process are better able to obtain the changes they’d like to see within draft rules than those that don’t participate,” she says. “That’s exactly the type of influence you’d expect — the hidden politics of regulation.”

Yackee has received more than $90,000 in grants from UW–Madison’s Institute for Clinical and Translational Research’s Community-Academic Partnerships and Fall Competition Research Grants programs to apply her research on federal rulemaking to Wisconsin.

Debate over high-profile rules, such as those that will govern the federal health care legislation passed earlier this year, can serve as a way to educate more people about how the process works, Yackee says. As Wisconsin begins drafting complicated rules to implement pieces of the federal health care reform legislation, the process of rulemaking at the state level will become more important than ever.

“Even at 2,000 pages, the law provides some guidance but leaves a lot unsaid and unspecified, and it is all those gaps that will be filled by rules,” says the political science department’s Coleman. “If you think the law is complex, and it is, wait until you see the dense web of rules that will have to be created to implement it at the state level.”