Rachel Augustine Potter | University of Virginia
Rep. John Dingell (D-MI) served in the U.S. House of Representatives for nearly 60 years and currently holds the record as the longest-serving member of Congress in history. He survived so long because he knew how to get legislation through the chamber, once quipping, “If you let me write the procedures and I let you write the substance, I’ll [beat] you every time.”1 Within Congress, procedures have long been recognized as a crucial tool (some might even say weapon). For example, budget reconciliation procedures that allow members to sidestep the critical 60-vote filibuster threshold (another procedure) have been used to pass major policy reforms, including welfare reform in 1996, the 2001 and 2003 Bush tax cuts, and the Affordable Care Act in 2010.
The federal bureaucracy is rife with procedures, but somehow, the idea that they can be marshaled to achieve strategic ends — as they are in Congress — is usually overlooked. Instead, they are viewed as “checking the box” under the assumption that bureaucrats execute them neutrally and by rote. In my forthcoming book Bending the Rules: Procedural Politicking in the Bureaucracy (University of Chicago Press, April 2019), I show how bureaucrats can be just as strategic as members of Congress when it comes to managing procedures for political ends.
In the book, I focus on the procedures that federal agencies follow when creating new regulations. These procedures, called notice-and-comment, involve many steps, but when agencies have completed them the ensuing policy carries the same force and effect as a law passed by Congress. These rules create important policies, ranging from regulations on greenhouse gas emissions by the Environmental Protection Agency to rules from the Department of Education governing which for-profit colleges are eligible to participate in the federal student aid program.
When creating these new regulations, bureaucrats are not neutral — they have preferences over the policies their agencies create. This does not necessarily mean they are policy zealots though. Rather, they prefer policies that create good public policy, meaning that they are technically feasible, fit well with other programs that the agency implements, and adhere to the professional norms to which agency personnel subscribe. Sometimes, it can also mean that the policy dovetails with the ideological tendencies of key agency personnel. Bureaucrats can thus use procedures to steer the rulemaking process in ways that ensure their preferred policies go on to become binding law; this is what I call “procedural politicking.”
The Value of Procedures in Rulemaking
Procedures are the established way that an agency does something, usually in a certain order. While procedures imply routine and predictability, they do not mean that rulemaking will be carried out in exactly the same way every time. There is some flexibility built in, and this is what makes procedural politicking possible.
Such discretionary procedural decisions permeate every stage of the rulemaking process. They include considerations like: How should the initial proposed rule be drafted and who should do it? Should the process begin with a proposed rule, or is the policy action urgent enough to warrant the agency invoking “good cause,” which skips the proposal stage and begins the process with an emergency rule (thereby bypassing the public comment period)? Here I consider how bureaucrats can leverage two distinct two types of rulemaking procedures: consultation procedures and control over timing.
With regard to consultation on rulemaking, there are very few ironclad legal requirements. Under the Administrative Procedure Act, the primary law governing the process, agencies are generally required to offer a period for written public comment after a proposed rule is published. However, the law does not say how long the period need be, leaving agencies with considerable discretion. Sometimes, agencies take this to an extreme. For example, on a recent proposed rule written by Trump’s EPA the agency allotted just 15 days for public comment — an amount of time that falls well short of the EPA’s own guidelines (which call for a minimum of 30 days) and the federal recommendation (which calls for 60 days).2 On the other end of the spectrum, for a proposal that an agency was interested in soliciting lots of feedback on there might be a long public comment period (e.g., 180 days), several hearings, meetings, focus groups and webinars.
Positive feedback that an agency receives on a particular rule — be it a statement of support from individuals at a hearing or endorsements from interest group officials in a letter — can help shore up that rule’s prospects. Agency officials frequently tout support for agency rules in congressional hearings and in public statements. However, negative feedback can have the opposite effect; if interest groups and other stakeholders voice opposition to an agency’s rule and those complaints find sympathetic ears in Congress or the White House, the prospect that particular rule goes on to become binding law substantially diminishes. It follows then that agencies should take pains to forecast and manage the type of feedback a particular rulemaking proposal is likely to receive from the affected public and adjust the level of consultation accordingly: more consultation when positive feedback is anticipated, and less feedback when negative feedback is anticipated.
Control over timing is another way that agencies can use procedures to influence how a rule is perceived. Rules come onto the public’s radar at particular points in their lifecycle, such as when a proposal is published in the Federal Register, when a final rule is published in the Federal Register or when the rule takes effect.
Agencies generally manage this timing, which is useful because what might be perceived as a rash or ill-conceived policy in one political environment may be regarded entirely differently in another. Thus, an agency might speed up the timeline of a particular rulemaking in order to capitalize on a favorable political rulemaking or, conversely, slow it down in order to wait out a disadvantageous situation.
These procedural politicking tools give agencies a way to shape how outsiders — particularly those most important to the agency in Congress, the White House and in the courts — respond to a rule and perceive its potential consequences. If bureaucrats build a rulemaking process around procedures that are not carefully selected and managed, opposition can foment. In contrast, a process that is skillfully orchestrated can help to suppress potential opposition and open a path to success where none previously existed. An example from the Food and Drug Administration illustrates just how consultation and timing can be managed strategically to achieve policy ends.
Menu Labeling at the FDA
When a relatively obscure provision of the ACA directed the FDA to issue a regulation to establish a national menu-labeling policy for chain restaurants, it should have been easy. After all, as Figure 1 shows, numerous states and localities had already adopted or were considering adopting a similar policy to direct restaurants to display nutrition information on menus. These so-called “laboratories of federalism” should have provided ample guidance for the agency to follow. However, writing a national menu-labeling regulation was far from easy for the FDA; not only did it take the agency more than eight years to put in place a binding final regulation,3 but Commissioner Margaret Hamburg described the process of creating the rule as one of the “thorniest” the agency had ever faced.4
Why was issuing the menu labeling regulation so difficult? While the agency certainly encountered tough implementation challenges, the real obstacles were political.
The White House was decidedly lukewarm about the rule. On the one hand, menu labeling was just the sort of policy nudge that the Obama administration tended to favor. Additionally, menu labeling was aimed at obesity reduction, first lady Michelle Obama’s chief policy priority. On the other hand, the administration — and the Department of Health and Human Services (the FDA’s parent agency) in particular — was overwhelmed with the implementation of the ACA, and menu labeling was not a top priority. Moreover, some aides, including Nancy-Ann DeParle, Obama’s healthcare czar, worried that too strong a menu labeling policy could wind up being lampooned on cable news;5 this was, after all, the era of Fox News and the heyday of Glenn Beck. Meanwhile, Republicans had gained 60 House seats in the 2010 midterm elections and had taken aim at many ACA-related regulations, including menu labeling. This meant that by the time the agency began drafting a rule, some in Congress favored a weak rule — or no rule at all. In other words, key players were divided on how the agency should proceed.
Within the agency, however, there was support for a comprehensive menu labeling policy. Indeed, one former FDA official commented that, while opinion about how to proceed on the menu labeling policy was not unanimous, leadership at the top of the agency was “very supportive” from the outset and there was a general feeling that putting into place a strong menu labeling policy was highly desirable.6 From a policy perspective, menu labeling is supported by many in the public health community and key personnel who worked on the rule had backgrounds in public health, holding advanced degrees in science or public health. When bureaucratic agents share a common professional background, professional norms can come to guide their thinking and their policy preferences; in this case bureaucrats’ shared public health orientation may have encouraged the agency’s team to pursue an aggressive public health vision.
How exactly did procedures come into play in the menu labeling rule? To investigate this question, I examined news reports, blogs and agency documents. I also conducted interviews with agency officials and interest group participants. Taken together, the evidence suggests that the FDA used procedural politicking tools — and consultation and timing in particular — in ways that promoted the rule and helped insulate the agency from potential attacks.
The way that the agency consulted with key stakeholders and the broader public showed a savvy understanding of how the process can be managed. Critically, this hinged on the distinction between information that is publicly observable and part of the agency’s rulemaking docket (which is reviewable by courts), and information that is collected “off the record” and is largely shielded from public view. In the early stages of the drafting of the menu labeling rule, much of the agency’s consultation for this rule was conducted in private. The agency held numerous ex parte (“off the record”) meetings with individual stakeholders — one former FDA official that I spoke with estimated that the agency hosted 50 of these meetings.7
The meetings engaged a diverse group of stakeholders including representatives of chain restaurants, convenience stores, pizza delivery, grocery stores, cafeterias, coffee shops, as well as some state and local entities that had already implemented menu labeling. As part of this private consultation, the agency learned that certain interest groups, like the pizza lobby and grocery stores, were vehemently opposed to menu labeling.
Given this expectation about negative feedback from the regulated community, it made sense for the FDA to limit the amount of consultation that it conducted on the rule moving forward, especially consultation that occurred in public and on-the-record ways. And this is exactly what happened. When setting the public comment period for the proposed rule the FDA gave stakeholders just 60 days to submit written comments.8 This was substantially shorter than the comment period the agency typically provides (especially for such an important rule); the average public comment period on an FDA rule is 84 days and the median is 90 days.
After the proposed rule was published, industry leaders clamored to meet with the FDA in person so as to make their case for the final rule. If such meetings were to take place, they would be part of the public record, and the agency would need to document the meeting and include it in the rulemaking docket. The FDA took the position that if it had one such meeting, it would have to meet with anyone who asked, and because the agency was hoping to get the final rule out quickly, it therefore declined all meeting requests at this stage. Additionally, as one former agency official put it, “We felt that we had already heard from all of the relevant players.”9
The agency’s refusal to meet led to consternation within the industry; as one supermarket executive lamented in a House hearing on the rule, “We meet with FDA on a regular basis on a wide variety of topics and this has been one particular topic in which they have been absolutely unwilling to meet or communicate. . . it has been a very frustrating process.”10 This sentiment was echoed by other industry representatives at the hearing and also in the interviews that I conducted. One interviewee compared his organization’s experience on the menu labeling rule to another rule relating to the Food Safety Modernization Act of 2011 that his organization had also worked with the FDA on:
When FDA started writing proposed rules on FSMA they held listening sessions and public meetings. If you couldn’t make the meeting it was webcast. Everybody had a chance to talk. There were breakout groups. All of that was on the record, very transparent. They met with industry groups in the public domain… Compare that to menu labeling. With this proposed rule they only talked to a certain group of folks. . . They said they wouldn’t talk with us — submit a comment and then we’ll talk to you. We did. But they still wouldn’t meet with us. Three and a half years later white smoke comes out and they put out a final rule.11
While this quote represents only one participant’s experience, it is consistent with a broader pattern whereby the FDA conducted less public outreach and less opportunity for stakeholder participation on the menu labeling rule than it often does for other rulemakings.
The timing of the rule also served to bypass potential issues with the White House. The rule came out after the midterm elections in November, meaning that it did not provide “job-killing regulation” fodder for the campaign cycle. More important, from the FDA’s perspective, by the time the agency sent the final rule to the White House for review in 2014, Nancy-Ann DeParle, the rule’s primary adversary within the White House, had left her post for the private sector. According to one former agency official, DeParle’s departure freed the agency to pursue a more aggressive final rule without this opposition within the executive branch.12
There is also a curious bit of procedural politicking with respect to the precise timing of the publication of the final rule. While the final rule was published in the Federal Register Dec. 1, 2014, the agency actually released it to media outlets before then, on Nov. 24. This was the Monday before Thanksgiving, and some in industry viewed this timing with suspicion. One interviewee indicated that Thanksgiving was the busiest time of year for the grocery industry — one of the industries most opposed to the rule — and suggested that the release of the rule during this week was an intentional move by the agency to bury the news story and to stifle opposition.
On balance, the record supports an interpretation that the strategic use of procedures helped the FDA to create an insulated and ambitious menu labeling rule. In fact, using these tactics helped the FDA write a final rule that was much stronger than many political observers expected.13 The political pressure the agency was under suggested that it should have issued a weak or watered-down version of the policy; instead, the agency issued a strong final rule — it covered numerous types of food establishments (e.g., grocery stores, movie theaters, amusement parks) and had stringent requirements for covered entities, requiring them to disclose nutrition information for alcoholic beverages in addition to food and requiring the information to be on the physical in-store menu (rather than, say, on an online website). All of this was well beyond the statutory requirements included in the language of the ACA.
Beyond Menu Labeling
The menu labeling rule is just one instance of how an agency navigated the procedures associated with rulemaking. Naturally, there are limits to what we can — and should — generalize from one case. That is why in my book I use a variety of approaches, including text analysis and statistical modeling, to explore how procedures are deployed across a wide swath of the administrative state. The data I use cover more than 10,000 rules issued by 150 executive branch agencies over a 20-year period (1995-2014). In addition to consultation and timing, I also consider other procedural tools like the choices that an agency makes when writing a new regulatory proposal, such as how to frame the proposed policy or which assumptions to apply in the economic analyses. The overall portrait that emerges from this study is one of bureaucrats carefully applying procedures in ways that insulate controversial rules from political attacks and help ensure that these policies go on to become binding law.
Of course, procedures are not optional; some choice has to be made at each step of the process or rulemaking cannot proceed. This gives bureaucrats license to dismiss criticisms about a particular procedural choice as fulfilling a mundane administrative requirement; as a result, procedural politicking often flies under the radar. Yet, procedures are an important way that unelected bureaucrats exercise influence over policy in the rulemaking process. Importantly, in studying procedural politicking, it is important to understand that bureaucrats are not doing anything that anyone else in their shoes would not do — the point is that political incentives can lead individuals to make choices that further their own interests, whether conscious or not. It follows then that we should be giving much closer scrutiny to the types of people that make up the bureaucracy, both at the level of career bureaucrats and those that serve as political appointees (i.e., leaders selected by the current administration), since these individuals have the potential to leave a lasting mark on the direction of public policy in the United States.
- Quoted in Walter J. Oleszek, Congressional Procedures and the Policy Process, 4th ed. (Washington, DC: CQ Press, 1996), 12.
- U.S. Environmental Protection Agency, “Modification of a Significant Use of a Certain Chemical Substance.” Proposed rule, February 8, 2018.
- The FDA began working on menu labeling when the ACA was passed in 2010; the compliance date for the rule was May 7, 2018.
- Associated Press, “FDA Head Says Menu Labeling ‘Thorny’ Issue.” Richmond (VA) Times-Dispatch, March 13, 2013.
- Gardiner Harris, “White House and the FDA. Often at Odds,” New York Times, April 2, 2012; Marion Nestle, “Rumor: The White House Is Holding Out for Weak Calorie Labeling.” Food Politics, February 13, 2013.
- Interview with former agency official, January 2017.
- However, at the request of commenters, the agency eventually extended the public comment period an additional 30 days (to 90 days total).
- Interview with former agency official, January 2017.
- Israel O’Quinn, “Testimony, Hearing on Restaurant and Fast Food Nutrition Labeling,” House Energy and Commerce Subcommittee on Health. Food City, Strategic Initiatives Director, June 4, 2015.
- Interview with grocery store officials, December 2016.
- Interview with former agency official, January 2017.
- Marion Nestle, “The FDA’s New Calorie Count Requirements.” Interview with Evan Kleiman, KCRW (Los Angeles), December 14, 2014.