Rulemaking, Civic engagement, Plain language movement
Administrative Law | Policy History, Theory, and Methods
This Article, part of the special issue commemorating the fiftieth anniversary of the Administrative Conference of the United States (“ACUS”), situates ACUS’s recommendations for improving public rulemaking participation in the context of the federal “plain language” movement. The connection between broader, better public participation and more comprehensible rulemaking materials seems obvious, and ACUS recommendations have recognized this connection for almost half a century. Remarkably, though, the series of presidential and statutory plain-language directives on this topic have not even mentioned the relationship of comprehensibility to participation until very recently. In 2012, the Office of Information and Regulatory Affairs (“OIRA”) issued “Executive Summary Guidance,” instructing that “straightforward executive summaries” be included in “lengthy or complex rules.” OIRA reasoned that “[p]ublic participation cannot occur . . . if members of the public are unable to obtain a clear sense of the content of [regulatory] requirements.”
Using a novel dataset of proposed and final rule documents from 2010 through 2014, this Article examines the effect of the executive summary requirement. The results show that the use of executive summaries increased substantially compared with the modest executive-summary practice pre-Guidance. Additionally, agencies have done fairly well in providing summaries for “lengthy” rules. Success in providing the summary in “complex” rules, and in following the standard template recommended by the Guidance is mixed. The most significant finding is the stunning failure of the new executive summary requirement to produce more comprehensible rulemaking information. Standard readability measures place the executive summaries at a level of difficulty that would challenge even college graduates. Moreover, executive summaries are, on average, even less readable than the remainder of the rule preambles that they are supposed to make more accessible to a broader audience.
Still, some bright spots appear in this generally gloomy picture, as some agencies (or parts of agencies) have become better at producing readable executive summaries. After speculating about why efforts to “legislate” more comprehensible rulemaking documents persistently fail, this Article urges ACUS to pursue its commitment to broader rulemaking participation by studying successful—and unsuccessful—agency practices in this area. The goal should be to identify best practices and make informed and practicable recommendations for producing rulemaking materials that interested members of the public could actually understand.
Cynthia R. Farina, Mary J. Newhart, and Cheryl Blake, "The Problem with Words: Plain Language and Public Participation in Rulemaking," 83 George Washington Law Review (2015)