Demystifying the Rulemaking Process to Increase Public Engagement

By Elizabeth Lower-Basch

Government regulations impact nearly every aspect of our lives. They guide big, visible policy choices, like whether potential immigrants are denied green cards because they fail a “wealth test,” as well as small but significant questions, like whether you get your money back if someone steals it by skimming your EBT card. And, by law, agencies are required to get public input before they issue any regulations. But too often, public input takes the form of a comment process that is theoretically open to all but, in practice, advantages larger and well-resourced entities that can monitor government websites for rules, understand the bureaucratic language, and respond during the limited window for comment.

There is no Schoolhouse Rock song about notice and comment rulemaking. Few people have heard of either the Federal Register, which is where proposed rules are published, or the Unified Regulatory Agenda, where agencies explain their regulatory plans twice a year. So perhaps it’s not surprising that fewer than 1,000 comments were submitted in response to a request for information that will guide how the Environmental Protection Agency will spend $3 billion under the Climate Justice Block Grants.

In July 2023, the Office of Management and Budget (OMB) addressed this issue with a memorandum encouraging federal agencies to look for “meaningful and equitable” opportunities for public input. The OMB memo emphasized the importance of building trust-based relationships with underserved communities that have often been left out of government decision-making. It also noted that improved public involvement in the development of regulations can lead to more effective and equitable policy as well as greater public trust in government and democracy. This is important at a moment when an increasing share of survey respondents believe “people don’t have a say in what the government does.”

The OMB memo is an important statement about the necessity of real community engagement in the law-making process. It also contains practical guidance for agencies seeking to make their public input processes more robust and meaningful. The memo emphasizes the importance of engaging impacted communities early in the process and using their input to guide where regulatory changes are needed. And it addresses concerns of some agencies that laws such as the Paperwork Reduction Act and the Federal Advisory Committee Act limit their ability to engage in public listening sessions.

However, if communities that have been underserved are to truly have an equal voice in the rulemaking process, much more is needed. As a co-chair of the Protecting Immigrant Families campaign, CLASP was part of one of the largest-ever regulatory comment campaigns, which resulted in more than a quarter-of-a-million public comments submitted in response to the Trump-era public charge rule to penalize immigrants for using public benefit programs. This achievement required the investment of significant resources in community-based groups that had the trust of impacted communities and could explain both the threat that the rule posed and the ways that people could get involved and have their voices heard. Such investments are rare. The OMB memo lifts up the importance of federal agencies partnering with community-based organizations and civil society organizations with local affiliates. But this is only possible if government agencies or philanthropic partners are willing to support nonprofits in this essential work.

Fundamentally, this is about a broader vision of democratic engagement. It’s not going to be easy, but it is necessary for rebuilding civic trust and building programs that work. It requires partners and organizers who are in the community year after year, not just during election season. It requires agencies to be creative and proactive, to experiment with new ways of engaging with the public that don’t require understanding technical language or sitting through a three-hour meeting for a two-minute speaking opportunity. And agencies need to show that they’re not just going through the motions, but listening and making changes as a result, so people can see that the time and effort they invested into providing feedback is worth it. And yes, we need better civic education – maybe including a catchy song about the rulemaking process.