Editor’s Note: The complete study is available here.
From: George Washington Law Review, 2015, Forthcoming | Cornell Legal Studies Research Paper No. 15-08
Cynthia R. Farina, Mary J. Newhartand Cheryl Blake
This article, part of the symposium commemorating the 50th anniversary of the Administrative Conference of the United States, 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 have not even mentioned the relationship of comprehensibility to participation—until very recently. In 2012, the Office of Information and Regulatory Affairs (OIRA) issued “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 2010-2014, we examine the effect of the executive summary requirement. We find that the use of executive summaries increased substantially compared to the modest executive-summary practice pre-Guidance. We also find that 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 included with the Guidance is mixed. Our 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 accessible to a broader audience.
We do find some bright spots in this generally gloomy picture, as some agencies (or parts of agencies) are doing better at producing readable executive summaries. We end with speculation about why efforts to “legislate” more comprehensible rulemaking documents persistently fail. We urge ACUS to pursue its commitment to broader rulemaking participation by studying agency practices in this area, with the goal of identifying best practices and making informed and practicable recommendations for producing rulemaking materials that interested members of the public could actually understand.