Strategic Rulemaking Disclosure
Jennifer Nou, University of Chicago – Law School
Edward Stiglitz, Cornell University – Law School
Southern California Law Review, Forthcoming
Cornell Legal Studies Research Paper No. 16-9
University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 748
U of Chicago, Public Law Working Paper No. 564
To examine these competing hypotheses, this Article uses a new dataset spanning over thirty years of rulemaking (1983-2014). Uniquely, the dataset is drawn directly from the Federal Register. The resulting findings confirm that agencies substantially under-report their rulemaking activities — about 70 percent of their proposed rules do not appear on the Unified Agenda before publication. Importantly, agencies also appear to disclose strategically with respect to Congress, though not with respect to the President. The Unified Agenda is thus not a successful tool for Congress to monitor and influence regulatory development. The results suggest that legislative, not executive, innovations may help to augment public participation and democratic oversight, though the net effects of more transparency remain uncertain. The findings also raise further inquiries, such as why Congress does not render disclosure requirements judicially enforceable.