Using Social Media in Rulemaking: Possibilities and Barriers

New paper by Michael Herz (Cardozo Legal Studies Research Paper No. 417): “Web 2.0” is characterized by interaction, collaboration, non-static web sites, use of social media, and creation of user-generated content. In theory, these Web 2.0 tools can be harnessed not only in the private sphere but as tools for an e-topia of citizen engagement and participatory democracy. Notice-and-comment rulemaking is the pre-digital government process that most approached (while still falling far short of) the e-topian vision of public participation in deliberative governance. The notice-and-comment process for federal agency rulemaking has now changed from a paper process to an electronic one. Expectations for this switch were high; many anticipated a revolution that would make rulemaking not just more efficient, but also more broadly participatory, democratic, and dialogic. In the event, the move online has not produced a fundamental shift in the nature of notice-and-comment rulemaking. At the same time, the online world in general has come to be increasingly characterized by participatory and dialogic activities, with a move from static, text-based websites to dynamic, multi-media platforms with large amounts of user-generated content. This shift has not left agencies untouched. To the contrary, agencies at all levels of government have embraced social media – by late 2013 there were over 1000 registered federal agency twitter feeds and over 1000 registered federal agency Facebook pages, for example – but these have been used much more as tools for broadcasting the agency’s message than for dialogue or obtaining input. All of which invites the questions whether agencies could or should directly rely on social media in the rulemaking process.
This study reviews how federal agencies have been using social media to date and considers the practical and legal barriers to using social media in rulemaking, not just to raise the visibility of rulemakings, which is certainly happening, but to gather relevant input and help formulate the content of rules.
The study was undertaken for the Administrative Conference of the United States and is the basis for a set of recommendations adopted by ACUS in December 2013. Those recommendations overlap with but are not identical to the recommendations set out herein.”