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Citizen oversight panels could make the federal rulemaking process more open and democratic

Juries render decisions on complex legal questions and could do the same as part of the regulatory process.

Who makes the rules that govern our daily lives? In a democracy, it’s natural to think that “the people” are in charge, or should be.

Of course, hundreds of millions of people can’t participate actively in governing day to day. Still, the idea of representative democracy is that those who make the rules are elected by, and accountable to, everyone else.

In fact, however, most national rules and regulations in the U.S. are made by unelected bureaucrats in administrative agencies such as the Securities and Exchange Commission or the Environmental Protection Agency. And in three cases currently before the U.S. Supreme Court, the legitimacy of this system is under attack.

Rulemaking by independent experts has long been an integral part of government. Yet critics on both the left and the right worry about allowing unelected officials to exercise so much power. As a political scientist specializing in the complex and often contentious demands of democracy, I have stated such concerns myself.

In my view, though, the current legal challenges are using a sledgehammer to crack a nut. All three cases reflect a broader strategy devised by ultraconservative activists whose ultimate aim is to dismantle the administrative state – agencies with the power to write, judge and enforce regulations that carry the force of law. Depending on how the court rules, its decisions could throw vast swaths of the federal government into disarray.

Advocates contend that reducing bureaucratic discretion will protect democracy. But if regulators can’t punish financial fraud or regulate pollution, the result won’t be a thriving democratic society. Rather than eliminating bureaucracy, I see ways to make it more democratic.

Federal bureaucrats whom former President Donald Trump calls "the deep state" work on many issues, from regulating drinking water to making hearing aids affordable.

Why professional bureaucracies matter

During the 20th century, governments around the world took on many new responsibilities, from managing national economies and providing health care to making food supplies safer. In the process, they found they needed to grant significant discretion to experts in bureaucratic agencies.

Imagine how cumbersome and contentious it would be if, for example, Congress had to pass a new law every time a harmful chemical was identified. Instead, elected lawmakers have authorized the EPA to regulate chemicals that its experts determine are harmful.

Regulatory agencies aren’t completely apolitical. Many are led by political appointees, and new administrations often redirect agency priorities. Yet these organizations’ core missions and staffs don’t change radically from one administration to the next.

This continuity shields much of agencies’ day-to-day work from partisan politics. It also prevents regulators from becoming politicized and corrupt, as often happens when elected officials have tight control over administrators. Yet it also opens agencies to charges that they are too powerful.

There are no easy answers here. An independent and professionalized bureaucracy is both a cornerstone of modern democracy and a potential source of undemocratic power. When bureaucrats are granted discretion, they may use it in harmful ways, either by caving in to powerful interest groups or simply imposing their own preferences.

In my view, though, getting rid of bureaucrats – and returning all discretionary power to the hands of a Congress that’s gerrymandered, gridlocked and awash in special-interest money – is no solution.

The Supreme Court weighs in

For many years, the idea of dismantling the administrative state was confined to a radical fringe. Over the past two decades, though, it has gained support among mainstream conservatives. And with former President Donald Trump’s appointment of justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett to the Supreme Court, it is now taken seriously at the highest levels.

The anti-bureaucracy argument was evident in West Virginia v. Environmental Protection Agency, a 2022 decision that significantly limited EPA officials’ discretion to determine how best to reduce power plant emissions. And in three cases on this year’s docket, the court appears poised to further limit the capacity and independent discretion of federal agencies:

– In Consumer Financial Protection Bureau v. Community Financial Services Association of America, a group of lenders asserts that the funding model for the Consumer Financial Protection Bureau – a regulatory body established after the 2008 financial crisis – is unconstitutional because it receives money through the Federal Reserve, not in annual appropriations from Congress. Many other federal programs, including Social Security, are funded through similar processes.

– In Securities and Exchange Commission v. Jarkesy, a hedge fund manager charged with fraud is contesting the commission’s enforcement procedures, which are also used by many other agencies. A ruling for the plaintiffs could threaten the use of administrative law judges to adjudicate issues across the executive branch, including workers’ right to organize and senior citizens’ claims for Social Security benefits.

– In Loper Bright vs. Raimondo, commercial fishing companies argue that the Commerce Department has regulated their industry in ways that exceed its authority. Many observers expect that the court will sharply cut back agencies’ discretion to interpret federal laws in deciding how to regulate.

None of these rulings would immediately abolish the federal bureaucracy. But they could seriously restrict agencies’ ability to do the critical work of governing a complex modern society.

Can regulation be more democratic?

In my book, The Dispersion of Power: A Critical Realist Theory of Democracy, I argue that it’s possible to limit overreach and special-interest influence over regulatory agencies without endangering bureaucrats’ ability to serve the public interest. Rather than taking all discretion away from regulators, I believe that subjecting their decisions to open challenges and oversight by ordinary citizens could help ensure that agencies use their power well.

Such feedback is already part of the regulatory process. Today, however, it often manifests as lengthy and expensive lawsuits, which favor wealthier groups.

What passes for popular participation is a cumbersome process through which members of the public may submit comments about proposed rule changes. Most comments often come from business groups and other organized interests.

Late-night TV host John Oliver explains a 2014 controversy over regulating internet access. This segment generated thousands of public comments that temporarily crashed the Federal Communications Commission’s website.

I’ve proposed a different model, called the citizen oversight jury. Citizens would be randomly selected and asked to review certain kinds of bureaucratic decisions, much as they render verdicts in legal trials.

Many societies have used lotteries for centuries to randomly choose people for public office, and this approach is expanding today. Perhaps most famously, randomly selected citizen assemblies in Ireland were pivotal in legalizing gay marriage in 2015 and abortion in 2018.

My research suggests that citizen oversight juries could make the bureaucracy both independent and democratic. Randomly selected participants might be asked to consider all kinds of questions. Was a military contract awarded through a fair bidding process or a sweetheart deal for insiders? Did FDA regulators fast-track a new drug because it was genuinely safe and effective or because they sought lucrative jobs with the manufacturer? Depending on the context, citizen juries’ conclusions could be adopted as agencies’ final actions or could trigger further expert review.

These questions can be complex, but so are the issues in many civil and criminal trials. There, jurors form opinions by hearing arguments from both sides, receiving instructions from judges and deliberating among themselves.

This system would enable experts to do their work, but then would subject their recommendations to public review. As I see it, this approach is an attractive alternative to the extreme and destructive solutions that could emerge from the Supreme Court.

Samuel Bagg, assistant professor of Political Science, University of South Carolina

This article is republished from The Conversation under a Creative Commons license. Read the original article.