Interest Group Participation in Rule Making: A Decade of Change

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1 JPART 15: Interest Group Participation in Rule Making: A Decade of Change Scott R. Furlong University of Wisconsin Green Bay Cornelius M. Kerwin American University ABSTRACT Ten years ago we completed a survey that examined interest group participation in the rulemaking process. At the time, it was the first major study to examine the role of interest groups in one of the most important policy-making venues in our democratic system. This article reexamines interest group participation in rule making a decade later. We focus most of the study on comparisons in how organizations access rule-making agencies, what techniques are used to lobby agencies, and the perceived effectiveness of these techniques by the organizations themselves. In addition, given the relatively new phenomenon of e rule making and the increase of other electronic communication techniques, we open an examination of interest groups use of these forms of communications and their implications. We find that rule making continues to be a primary concern of organizations trying to influence federal public policy, even as they have focused more on campaign and grassroots activities. In some ways, these efforts are more important now than they were ten years ago. The study of lobbying and the role that interest groups play in the U.S. democratic system continues to be of interest to political scientists. We continue to learn more about how organizations attempt to influence public policy at a number of different levels. The Advocacy and Public Policymaking Project currently being conducted by a number of interest group scholars has raised a number of interesting issues regarding the role of interest groups in public policy and promises additional insights in the future that may keep scholars busy for quite some time. One arena of interest group lobbying that receives little attention is the executive branch, more specifically in the rule-making process. 1 We made a similar statement ten years ago when we conducted a survey of interest groups and their participation in rule making. Although there has been some additional research in this area (Furlong 2005; Golden 1998; West 2004), scholars do not have a well-developed understanding of how organizations Address correspondence to the corresponding author at furlongs@uwgb.edu. 1 Although we recognize the legal differences between independent regulatory commissions and executive branch agencies such as the Environmental Protection Agency (EPA) or the Department of Transportation (DOT), we use the term executive branch to be inclusive of all agencies that conduct rule making. doi: /jopart/mui022 Advance Access publication on December 16, 2004 Journal of Public Administration Research and Theory, Vol. 15, no. 3 ª 2005 Journal of Public Administration Research and Theory, Inc.; all rights reserved.

2 354 Journal of Public Administration Research and Theory learn about rule-making proceedings, how they participate, and the extent of their influence on regulations issued by agencies of various sorts. Is rule making considered relevant by interest groups trying to influence public policy? Ten years ago we found rule making to be quite important to interest groups, but after a decade of change is that still the case? The significance of this research is a function of the importance of rule making to our system of government. Rule making is nothing less than lawmaking by agencies of government. Rule making is defined in the Administrative Procedure Act as an agency process for formulating, amending or repealing a rule, and a rule is defined as any agency statement of general or particular applicability and future effect designed to implement, interpret or prescribe law or policy. And if lawmaking, linked to the will of the people through the electoral process and other means, is the most important power created for our government by the Founders, a good case can be made that rule making is the most important function that agencies of government perform. Participation in rule making is vital to the preservation of our democratic system. Understanding the dynamics and impact of interest group involvement in rule making should be a matter of prime concern to students of political science, public administration, and policy analysis. Rule-making agencies operate in the executive branch under the direct managerial control of the president or as independent regulatory bodies. Both forms of agency are led by political appointees and staffed by career public servants, none of whom are elected. Authority for rule making is derived from statutes written by Congress, but few, if any, significant pieces of legislation can be implemented without this second tier of lawmaking providing essential substantive and procedural details. Consequently, rule making by agencies has eclipsed legislation by Congress as the most important source of lawmaking in at least three ways. In terms of sheer volume there is simply no competition between legislation and rule making. Rules vastly outnumber statutes regardless of what measure of either is employed. Second, the specificity of command is generally far greater in rules than in statutes, leaving those who might benefit from our law, or others who must comply with its strictures, with the most precise statements of their rights and obligations they will find short of an enforcement action or a judicial decision. Finally, there is greater immediacy of effect in rules than is typically the case in statutes since the real impact of legislation cannot be felt until implementing rules and regulations are issued. However, when rules are published these take affect by a certain date, often within a month of issuance. The legitimacy of rules is derived from two sources, with the first being the authorizing statutes noted above. The second source of legitimacy is the process by which unelected officials develop the rules. There is a vast body of law and commentary on rule-making procedures (Kerwin 2003; Lubbers 1998), but for the purpose of this article the most important procedural element is the central, indeed indispensable, role of public participation in the development of rules. Public participation serves, in effect, as a substitute for the electoral process that bestows constitutional legitimacy on legislation. Public participation in rule making also informs unelected officials. This enables agencies to write rules that benefit directly from the public s considerable wisdom and experience with the topic at hand. Theory holds that politics flows to the point of discretion, to use Lowi s apt phrase. Rule making is such a point. But studies of rule making are relatively rare, and fewer still focus on multiple cases. Case studies are invaluable sources of insights as to what variables in individual cases may have general significance to the rule-making process. However,

3 Furlong and Kerwin Interest Group Participation in Rule Making 355 without empirical research with a broader reach, we cannot test theory or extend its range. This research has chosen interest groups as the units of analysis for a study with broader reach. It explores whether rule making commands the attention of the public to the extent that theory suggests its role in defining law and policy would merit. It also attempts to determine how interest groups, as surrogates for the public, use available tools and tactics to influence the outcome of rules, as well as their assessments of these tools and tactics. By illuminating important aspects of public participation in rule making, this research contributes to an empirical literature on rule making that is far less developed or extensive than its subject warrants. Much has changed in the ten years since our original survey of interest groups. Since the early 1990s, there have been changes of presidential administration and parties of power. Their views on regulation were different, and these policies affected their approaches to rule making. Their use of the review authority of the Office of Management and Budget differed, and the events of September 11th affected rule making as well. Congress was not inattentive during this time, passing the Congressional Review Act, which provided Congress with a mechanism to overturn agency rules before they go into effect, and the passage of the Lobbying Disclosure Act of 1995 required more accurate accounting and reporting of interest group lobbying activity at both the legislative and the executive branch. 2 Independent of these changes in government were advances that affected rule making. For example, technology has shown some promise in enhancing citizen participation. It is easier for some citizens to access agency information and for government to disseminate information. For example, a number of agencies are conducting their public comment period electronically, accepting comments online and allowing the general public to access their official rule-making records electronically (Mahler and Regan 2002). Do these changes in the public s access to government make a difference in how organizations participate in and attempt to influence agency rule makings? Are organizations still interested and actively involved in agency rule making? What types of organizations are prominent in this area of lobbying? How do they perceive their success in influencing public policy through rule making? Over the past ten years, are there noticeable effects on this form of public participation? In 1992, we conducted the first survey that examined the role of interest groups in the rule-making process, focusing on a variety of issues surrounding interest group access to rule-making information and the effectiveness of these lobbying activities. Until now, this was the sole survey of interest groups in the rule-making process. This article examines the results of a similar survey administered during summer The results provide additional information regarding interest group participation in rule making and an assessment of changes in this area of lobbying over the past ten years. LITERATURE REVIEW While research abounds on interest group participation in the governmental process, the vast majority has focused on participation in the legislative branch of government and to 2 Under the Congressional Review Act agencies must submit their final regulations to Congress prior to their effective dates. Congress may overturn these regulations if they can pass a joint resolution that the president must sign. If the president vetoes the joint resolution, Congress can override with a two-thirds vote.

4 356 Journal of Public Administration Research and Theory a lesser extent the judiciary branch. Research on participation in the executive branch is characterized by tangential comments from larger interest group studies (Nownes and Freeman 1998; Schlozman and Tierney 1986), theoretical discussions regarding interest group capture of government agencies (Bernstein 1955), and interrelationships that occur within the issue networks described by Heclo (1978). The recent controversies over the discussions that occurred during Vice President Cheney s energy task force and the Federal Communications Commission (FCC) alteration of media ownership rules highlight the concerns regarding executive branch lobbying. Similar issues arose during the Reagan and Bush administrations, most predominantly in regard to President Bush s Council on Competitiveness. Conservatives had their share of complaints about preferential access by their adversaries to the Clinton administration. There is ample evidence that the executive branch is a rich target for those who would influence government policy, and it is crucial to recognize that interest groups have a number of different avenues to pursue these efforts. Interest groups often participate in the rule-making process, yet the research in this area has been limited. One of the first attempts to quantitatively examine the role of interest groups in the rule-making process considered a number of issues regarding participation in that process (Kerwin 1994). It also attempted to model interest group effectiveness in the rule-making process, drawing heavily on earlier work devoted to the executive branch (Furlong 1997). The result of the survey we conducted showed that many organizations considered participation in the rule-making process as very important to their overall lobbying strategies. In addition, these organizations perceived that their efforts were, on the whole, effective in influencing the policies coming out of the agencies. Their use of resources to participate in rule making appears rational because they saw positive results or they counteracted potentially harmful efforts by other organizations. One concern with this earlier research on the involvement of interest groups in rule making is its reliance on self-reported measures for interest group influence. Interest groups were asked to rate the effectiveness of the techniques used to lobby rule-making agencies and also their overall effectiveness in influencing these agencies. Clearly, it is possible that organizations may overstate their influence in these situations. Golden (1998) attempted to address this shortcoming in her research on the role of groups in the rulemaking process. Her work attempted to answer similar questions of participation and influence in rule making. Golden found that business organizations participated heavily in rule making with far less involvement from public interest groups. The question of influence was more difficult to answer, as is the case in many interest group studies. According to Golden s study, business organizations appear to be more active in participation, but there was no evidence of undue influence over the agency rule makings. Golden also found that the key component determining whether an agency makes a change from proposed to final rule making is the amount of consensus evident in the public comments. As consensus increases, agencies are more likely to make the change. If there is conflict, agencies tend to side with the comments supporting the agency s position. It should be noted that the small number of rules examined in the study limits the generalizability of the results. The question of interest group participation and influence on different governmental processes continues to challenge scholars attempting to understand the important relationship between organizations and government institutions (Baumgartner and Leech 1998). The limited research conducted at the nexus of interest groups and government

5 Furlong and Kerwin Interest Group Participation in Rule Making 357 agencies highlights some of the typical problems scholars confront when examining influence. On the one hand, researchers can examine a limited number of issues (or even a single issue) extensively and attempt to find what role organizations played in rule-making efforts. Alternatively, scholars can turn to surveys or interviews of organizations to get their input directly on these issues. Each technique has strengths and weaknesses. But because of the relative paucity of research, in the broader area, we chose to cast a wide net over the entire interest group community by returning to the questions we asked a decade ago. DATA COLLECTION AND METHODOLOGY Our original survey conducted in 1992 involved every interest group appearing in that year s edition of Washington Representatives, a large population. The response rate after follow-up mailings and phone calls was modest; eventually the 178 surveys returned represented approximately 15 percent of the population. This study draws a sample of interest groups. Another change was in the source of the sample. As discussed by Golden (1998), one of the limitations of the original survey was its focus on those organizations that had a presence in Washington, D.C. She correctly noted that there are a number of organizations interested in rule making that participate in other ways from locations other than Washington. Her research showed that a large percentage of public comments came from outside the Beltway. To improve on the first study, we used the Government Affairs Yellow Book: Who s Who in Government Affairs, published by the Leadership Directories, Inc. (2002), as the source from which a true sample was drawn. This directory has over 20,000 government affairs personnel listed from a number of different organizations, including businesses, trade and professional associations, interest groups, unions, and government institutions and representing a wider geographic range than the Washington Representatives publication used in the original survey. From this publication s population, we eliminated federal government agencies and lobbying firms from the survey. Lobbying firms, or hired guns, were not included in the original survey because these firms can, and often do, represent a number of interest groups at the same time. Hence it is difficult to determine which clients formed the basis of their responses to our survey. In addition, one would expect interest group employees to have more knowledge of such rule-making activities for their organization. From the remaining organizations we drew our systematic random sample of 563 government affairs officials, approximately 25 percent of the defined population. They were sent a letter and survey, a follow-up letter, and finally an when available information about the organization allowed. Respondents could complete the survey online by accessing the Web address provided in the letters or the link in the message. 3 All of these efforts led to a sample of 149 respondents, for a response rate of just over 25 percent. As noted above, organizations had only been asked about their rule-making activities in a systematic way once before in The survey research literature contains 3 We received nineteen responses through the Web. 4 Mail surveys typically have lower response rates than in-person or telephone interviews. Other interest group studies such as those conducted by Schlozman and Tierney (1986) and Heinz, Laumann, Nelson, and Salisbury (1993) relied on such interviews and had high response rates. Walker s (1983) initial study used a survey and received a response rate of about 65percent, and his later survey (1991) had a 55 percent response rate. More recently, Nownes and Freeman s (1998) study of interest group activities in the states used a survey and achieved response rates varying from 36 to 51 %.

6 358 Journal of Public Administration Research and Theory a wide range of professional judgments regarding the adequacy of response rates. 5 Higher response rates are always desirable in order to guard against nonresponse bias. When working with lower response rates, the representativeness of a carefully drawn sample can mitigate nonresponse bias to an acceptable extent. The nature of this survey heavily influenced the response rate. In this case, we are confident that based on available professional norms, the representativeness of the respondents in the sample, combined with the overall response rates, yields results whose generalizability is worthy of serious scholarly attention (see below). The survey was constructed to allow for comparisons to the original research conducted ten years ago. Many of the original questions were reproduced with no change. For others, wording adjustments were made to improve the original instrument. The questions probed on the importance of participating in the rule-making process, how organizations received information about rule makings, why they participate, the methods they use to participate in rule making, and the perceived effectiveness of these methods. We again attempted to get budgetary information from the organizations with various levels of success. To supplement the surveys we examined the reports submitted in accordance to the Lobbying Disclosure Act to obtain a dollar amount spent on lobbying in 2001 and asked organizations to estimate what percent of this went toward rule-making activities. 6 One area examined in this survey that was barely considered ten years ago is the use of electronic resources for information about participation in the rule-making process. Characteristics of the Respondents The Government Affairs Yellow Book categorizes organizations into the following types: corporations, financial institutions, associations, labor unions, interest groups, federal government, state government, municipal government, and government affairs representatives. Our survey combines corporations and financial institutions into one category labeled Business/Company and the different government levels into one category, Government. We separate for the survey trade associations and professional associations (although our analysis combines them together) and also include a Research and Other category. Table 1 shows the number and percentages of the mailed surveys and the responses. According to the data shown in table 1, respondents from business are underrepresented and those from trade associations are overrepresented compared to the sample drawn. The combination of these two major economic interest groups, though, is very close to the percentage sampled. Second, public interest groups are somewhat 5 Babbie (2004) states that a 50 percent response rate is adequate for analysis. On the other hand, Alreck and Settle state that mail survey response rates over 30% are rare (1985) and instead focus on the size of the sample obtained rather than the number of surveys sent. From another perspective, Miller (1991) illustrates a number of studies with varying levels in response rates for mail surveys, ranging from 3 to 71 %, all of which were published in different forms. 6 These budgetary data have limitations. First, a number of organizations did not have such reports listed in the Lobbying Disclosure Act database. Second, as discussed by Furlong (1997) and Baumgartner and Leech (1998), the data themselves have some limitations. A significant one for this study is that a group would not have to report activity such as the submittal of comments to a proposed rule, since this type of activity is exempted from the act. It is unclear how that might affect an organization s reporting of its budget numbers.

7 Furlong and Kerwin Interest Group Participation in Rule Making 359 Table 1 Types of Surveyed Organizations and Respondents Compared with Other Studies Group Type Sample Respondents Original Survey Schlozman and Tierney (1986) Study Business 241 (43%) 38 (26%) 11% 21% Trade Association 188 (33%) 70 (47%) 54% 45% Union 10 (2%) 1 (1%) 3% 3% Public Interest Group 61 (11%) 8 (5%) 13% 14% Government 63 (11%) 16 (11%) 2% 3% Other (Includes Missing Values) 16 (11%) 17% 13% Total underrepresented respondents. 7 Third, the participants in this most recent survey are quite different than those in our original survey, as shown by the percentages. But these percentages are much closer to the Schlozman and Tierney (1986) study that is the most common standard used as a basis of comparison. We should also note the increase in the predominance of organizations representing business interests. Previous research by Furlong (1997) and Baumgartner and Leech (2001) showed an increase in the presence of these organizations, and the sample for this study is showing a similar increase. Based on these previous studies, we believe that the sample is representative of the organizations that have an interest in participating in the rule-making process. The largest concern lies in the relative small percentage of public interest groups replying to the survey. While the percentage of these groups replying to the survey is relatively small, combined with certain respondent groups in the Government and Other categories notably think tanks and research organizations the percentage is closer to the Schlozman and Tierney standard. There may be a bias toward organizations that participate in rule making. Although the survey asked organizations to participate in the study even if they did not participate in rule making, it is reasonable to assume a greater likelihood that nonparticipating organizations would not complete the survey. This would be of concern when comparing organizations that participate in rule making with those that do not, but the major focus of this study is on the activities of groups that are active. RESULTS For the purposes of the article, we focus on the specific techniques used by the organizations and the perceived effectiveness of these techniques. The analysis examines what differences there are between different organizational types. Finally, we begin an examination of the role that electronic techniques play in executive branch lobbying. Of the 149 respondents to the survey, 122 or 82 percent stated that they participated in the rule-making process. In terms of percentages, participation in rule making did not seem to vary much between the organizational types. About 85 percent of the trade associations 7 The low number of public interest groups responding to the survey is not totally unexpected. Langbein and Kerwin (2000) found that public interest groups are notoriously understaffed and that this prevented them from participating in regulatory negotiations at the level that perhaps they would with more resources. Likewise, such understaffing may prevent them from engaging in a number of activities such as survey completion.

8 360 Journal of Public Administration Research and Theory Table 2 Comparative Importance of Organizational Participation in Rule Making Compared to Other Lobbying Activities Percent of Groups Stating Rule Making Was as Important or More Important Lobbying Activity 2002 Survey 1992 Survey Lobbying Congress Mobilizing Grassroots Contributing to Candidates Litigation Lobbying President or Other White House Office (e.g., the Office of Management and Budget) 75.6 Not asked and businesses stated that they participate in rule making compared to about 75 percent of the public interest groups. State and local government also showed a high rate of participation, about 93 percent of those that responded. A chi-square test shows there is no significant difference in the rate of participation across organizational types. Participation in rule making is widespread among all types of organizations. Importance of Rule Making to Interest Groups When examining those organizations that do participate in rule making, they clearly consider this form of lobbying activity important. When asked to rate the importance of this activity on a scale from 1 to 7 (low importance to high importance), the organizational mean was 5.94, and 43 percent of these groups ranked participation in rule making a 7. We also examined the comparative importance of participation in rule making related to other lobbying and influencing activities. Table 2 shows these results along with the results from the survey conducted over ten years ago. Not much has changed with regard to how groups interpret the importance of rule making. These organizations still feel that their participation in rule making is an important component of their entire lobbying strategy. It is interesting to note the increase in the percentage of groups stating that participation in rule making is as important as, or more important than, lobbying Congress. This recent figure is nearly ten percentage points higher than in the 1992 survey. Organizations are recognizing the importance and perhaps the primacy of rule making in the making of law in our society and increasing, or shifting, their lobbying resources to recognize this fact. The increase in political gridlock within Congress could be one reason for the increase in the importance of participating in rule making. Gridlock leads to less legislative production by Congress, but the demand for policy still exists. Executive agencies, through rule making, fill the policy vacuum left by Congress affected by divided government. This result suggests an increasing sophistication in lobbying and a greater awareness by interest groups of the importance of rule making. Rule-Making Participation As noted, 82 percent of the responding organizations stated they participate in rule-making activities. But what is the extent of that participation, and which agencies are interest

9 Furlong and Kerwin Interest Group Participation in Rule Making 361 Table 3 Participation in Rule Making by Organizational Type Organizational Type Mean Number of Rules Participated In Median Number of Rules Participated In All Trade Association Business/Company Public Interest Group Government Other groups trying to influence through this process? Organizations that participate in rule making stated that the average number of rules they participated in during the preceding year was about eleven and the median was five. In terms of the number of agencies that they communicate with, the organizational average was just under eleven, again with a median of five. There are some differences in the mean number of rules commented on by organizational type. Table 3 shows the means and medians for different types of interest groups. It appears that trade associations and businesses are participating in more rule makings than the other organizational types. Compared to public interest groups, businesses are participating in over twice the number of rule makings. This finding is consistent with theories of group participation. Wilson (1980) suggests that policies can be differentiated by they way they distribute costs and benefits. By extension, one would expect that organizations interested in concentrated costs or benefits are more likely to participate in policy making. This is due to the fact that they are more likely to recognize the inherent benefits of their participation because of the direct effect that a policy or, in this case, a rule making will have upon them. Public interest group participation is less likely because they may not perceive any benefit or the total benefit is distributed very broadly over a large membership, making collective action more difficult (Olson 1965). In addition, Hansen (1985) stated that organizations are more likely to act when their interests are threatened compared to those policies that increase benefits. Rule-making actions typically increase the costs of doing business, and therefore one would expect increased participation by businesses or trade associations protecting their operations. This would also lead us to expect businesses to participate in what appear to be minor rule makings from the public interest group s perspective, because they may have relatively larger implications for the business in question. In a related issue, Wright (1996) suggests that businesses and trade associations will be more active in executive branch lobbying due to their superior expertise in legal and administrative issues. One must also recognize the inherent differences in resources between business organizations and public interest groups that affect participation activity. The number of agencies contacted by groups during the rule-making process was also examined. On average, the responding organizations contacted about ten different agencies during the previous year. In fact, over 80 percent of the respondents contacted ten or fewer agencies throughout the year, and 66 percent contacted five or less. This suggests specialization by interest groups. When we asked the organizations to list their three most important agencies, there was wide diversity in the responses. Organizations listed

10 362 Journal of Public Administration Research and Theory sixty-nine different federal agencies. 8 This reinforces the finding of specialization by interest groups and lends support to Golden s (1998) points concerning the diversity of participation in the rule-making process. Methods of Participation and Their Effectiveness In his book Rulemaking, Kerwin (2003) discusses different participation techniques that organizations may employ in rule making. The best known and indeed archetypal is the provision of written comments in response to a notice of proposed rule making. But organizations can also participate in public hearings, contact agencies informally before or after the publication of a proposed rule, or file a petition to initiate a rule-making proceeding. During the past decade there has been an increase in attention to other participation techniques, notably negotiated rule making and other alternative disputeresolution methods. The use of electronic communication has increased dramatically and may be significantly affecting how organizations participate in rule making. Table 4 shows how often the responding interest groups reported the use of a number of methods to participate in the rule-making process. In comparison to the original survey, only one participation method showed a decrease worthy of note. There was a six-percentage-point decrease in those groups stating they use written comments at least sometimes to influence rule making. The percentage decrease, along with what is not shown in the table, makes this noteworthy. The number of organizations using written comments more frequently than sometimes decreased much more sharply (about 20 percent). It is interesting that this method of participation established in the Administrative Procedure Act, and the one most used by those responding to our original study, was one of the few to show a decrease in use. In contrast, there was a large increase in organizations stating that they use the hearing process at least sometimes. Organizations initially stated they used this method (at least sometimes) 59 percent of the time, but ten years later that number increased to 86 percent. There were smaller increases in reported uses for coalition formation, contacting an agency before the proposal, and contacting the agency after the proposal. Within these three methods, the largest increase was for the amount of contact prior to the proposal, which saw an increase from 73 to 86 %. This is consistent with the increase in participation in public hearings that usually occur prior to publication of the formal proposal. 9 The participation data indicate that organizations attempt to influence the rule-making process in a number of ways beyond the traditional notice-and-comment procedures. 8 The list of which agency was reported most often may have some problems. Some organizations such as the Department of Health and Human Services (HHS) have a number of major subagencies that are very active in rulemaking activities such as the Food and Drug Administration (FDA). Respondents had the ability to list distinct agencies and not necessarily their cabinet-level home. The top five agencies listed most often were the EPA (30), DOT (17), HHS (17), FCC, and FDA (13). 9 At the suggestion of one reviewer, we conducted chi-square tests on the differences between the 1992 and 2002 data in regard to the methods used by interest groups. The tests were set up so that the data were bifurcated between those organizations that said they used a particular method sometimes or more versus those groups that said less than sometimes. The results found that participation in public hearings, informal contacts prior to the notice of proposed rule making (NPRM), and informal contacts after the NPRM were all significantly higher (.05 level) in 2002 compared to In addition, as noted in the article, when one looks at the two highest categories of use in the two data sets, excluding those that said sometimes, there was a significant decrease in providing written comments to the NPRM in These results do nothing but reinforce our general findings and conclusions.

11 Furlong and Kerwin Interest Group Participation in Rule Making 363 Table 4 Methods Used by Interest Groups to Participate in Rule-Making Activities Participation Method Mean Use of Method Percent of Groups Using Method at Least Sometimes 1992 Survey a 2002 Survey Provide written comments in hard copy form in response to Federal Register notices Provide written comments in electronic form in response to Federal Register notices 3.15 n/a 68 Participation in public hearings Membership on agency advisory boards 2.75 n/a 59 Forming coalitions with other organizations/firms Mobilizing members/employees to participate directly in rule making Informal contacts with agency staff before the notice of proposed rule making is issued Informal contacts with agency staff after the notice of proposed rule making is issued Filing petitions to initiate rule making 1.93 n/a 19 Participating in regulatory negotiations 2.52 n/a 53 Participating in policy dialogues 3.23 n/a 80 Participating in online exchanges other than formal comments 2.05 n/a 29 Participating in advanced notices of proposed rule makings 2.96 n/a 66 Note: The mean use scores are based on a five-point scale (never, rarely, sometimes, often, always). a N/a indicates methods not asked about in the 1992 survey. Activities such as participation in hearings and contacting agencies directly may provide these organizations with more effective and focused communication with the government officials. With written comments alone, organizations have limited knowledge of how their views have been received and considered. These other methods can provide organizations with more certainty regarding their communications with agency personnel. Organizations appear to seek direct contact with agency rule makers in order to ensure that they are being heard. This tendency could have implications for other forms of participation in rule making. The increase in electronic participation may provide similar reassurance to participants wanting direct contact and some tangible response. This is more likely when electronic communication evolves to the point where organizations and other participants experience genuine interaction occurring with the rule-making agency. If electronic participation is viewed merely as an alternative way to submit written comments, it will not supply what participants value in public hearings. The somewhat larger increase in contacting an agency prior to the proposal is consistent with Golden s findings. Interest groups place emphasis on getting heard prior to an agency setting its proposal in stone, as is likely the case with the publication of a formal notice of proposed rule making. Once this occurs, Golden s work indicates that inertia makes it more difficult for an interest group to influence the agency to make major changes. How effective are these methods of participation in getting agencies to make changes to their rules? As noted, interest group influence is often difficult to assess at

12 364 Journal of Public Administration Research and Theory Table 5 Effectiveness of Methods Used by Interest Groups to Participate in Rule-Making Activities Participation Method Mean Effectiveness Score Percent of Groups Rating Effectiveness as 3 or Higher 1992 Survey a 2002 Survey Provide written comments in hard copy form in response to Federal Register notices Provide written comments in electronic form in response to Federal Register notices 3.48 n/a 85 Participation in public hearings Membership on agency advisory boards 3.48 n/a 79 Forming coalitions with other organizations/firms Mobilizing members/employees to participate directly in rule making Informal contacts with agency staff before the notice of proposed rule making is issued Informal contacts with agency staff after the notice of proposed rule making is issued Filing petitions to initiate rule making 2.45 n/a 52 Participating in regulatory negotiations 3.35 n/a 79 Participating in policy dialogues 3.29 n/a 77 Participating in online exchanges other than formal comments 2.24 n/a 39 Participating in advanced notices of proposed rule makings 3.32 n/a 79 a N/a indicates methods not asked about in the 1992 survey. any level. Golden s (1998) efforts in this regard in her article on the lobbying of rule making are important in that they attempt to examine the actual written comments submitted to the agencies and what changes were made to the final rule. As anyone who has read rule-making documents in public dockets can tell you, this is highly laborintensive data collection, and it is often difficult to determine which influences led to changes made in a final rule. In this survey, we asked interest groups to provide estimates of the effectiveness of different techniques. Self-reporting carries inherent threats to reliability. Interest groups want to claim credit for their lobbying activities, and groups may be reluctant to report that their efforts are ineffective. But asking them about the specific techniques involved rather than their overall lobbying efforts blunts these tendencies somewhat. There are precious few alternatives at this point in the development of scholarship on interest group influence on rule making. Table 5 shows the mean effectiveness scores (based on a five-point scale, from least to most effective) reported by the interest groups as well as the percentage of the organizations responding that the techniques used were rated at the higher levels of the scale (3 or higher). Interest groups responses regarding the perceived effectiveness of the methods vary little from what we found ten years ago. But in almost every case there was an increase in the perceived effectiveness of these methods. The perceived effectiveness of attending and participating in a public hearing increased the most, with 81 percent of the organizations

13 Furlong and Kerwin Interest Group Participation in Rule Making 365 stating that this was an effective method compared to only 63 percent ten years ago. 10 There was a ten-point increase in the percentage of organizations reporting that informally contacting an agency after a proposal was effective. This may give pause to those who assume agency interest group contacts are somehow circumscribed by law or practice once a notice of proposed rule making is published. These general results are not surprising given the increase in overall participation discussed above. It follows that the observed increase in post-notice contact (and its perceived effectiveness) is linked to pre-notice activity due to the establishment of working relationships participants establish to reinforce or refine their earlier messages to agency rule makers. Would participation be increasing if organizations felt these techniques are relatively ineffective? A probe of agency officials about the effectiveness of these same techniques could add more insight, since law and previous research (Furlong 1997; Golden 1998) indicates that agencies take public comments seriously. Relationship between Participation and Effectiveness As discussed above, one would expect a relationship between the frequency with which an organization uses a particular technique and the perceived effectiveness of that technique. In every case, these paired variables (the use of a particular technique and its perceived effectiveness) are significantly correlated with each other. These correlations range from a low of 0.38 to a high of While all of the paired variables are correlated, it is also interesting to note that a number of them are significantly different from each other. Table 6 shows these results. In every case but two (the written comment variables and the informal contact after the notice), organizations rate the effectiveness of the method higher than their use of the method. One might hypothesize for the written comments variables that organizations do this routinely despite the use of other techniques to get their concerns on the record. They may not necessarily see written comment as effective relative to other techniques. Or organizations also may participate in this method as a form of defensive lobbying (Baumgartner and Leech 1996, 1998) in order to counteract the formal comments coming in from other organizations. In addition, it is likely that the participants are driven by agency expectations. Organizations participate in the formal notice-and-comment process to satisfy agency norms regardless of their own views of its effectiveness. For the informal contact after the notice, procedural and legal requirements may prevent this method from being as effective as it might otherwise be. Two of the lobbying methods, membership on advisory boards and participation in regulatory negotiations, also show quite large discrepancies between frequency of use and perceived effectiveness. In both cases, groups considered these methods quite effective but appear to use them very infrequently. The explanation is straightforward. There are few regulatory negotiations for groups to participate in, and they are expensive. But they have the potential to be quite influential (Langbein 2002). The same is generally true for service on advisory committees. In addition, organizations do not control participation in either negotiated rule making or 10 As with the methods used variables discussed in table 4 and note 9, at the suggestion of one reviewer we also conducted chi-square tests on the differences between the 1992 and 2002 data in regard to the effectiveness of the methods used by interest groups. According to the results, groups rated the effectiveness of participating in public hearings (.05 level), as well as providing informal comments after the NPRM (.1 level), significantly higher in Once again, these results do nothing but reinforce our general findings and conclusions.

14 366 Journal of Public Administration Research and Theory Table 6 Correlations and Comparison of Means of Paired Lobbying Method Use and Perceived Effectiveness Variables Use and Effectiveness of Lobbying Method Means Correlation Use of written comments in hard copy form 3.71* Effectiveness of written comments in hard copy form Use of written comments in electronic form 3.34 Effectiveness of written comments in electronic form Participation in public hearings 3.38 Effectiveness of participation in public hearings Membership on agency advisory boards 2.81*** Effectiveness of membership on advisory boards Forming coalitions with other organizations/firms 3.98 Effectiveness of forming coalitions Mobilizing members to participate directly in rule making 3.07** Effectiveness of mobilizing members Informal contacts with agency staff before the notice of proposed rule makings 3.51*** Effectiveness of informal contacts before the notice of proposed rule makings Informal contacts with agency staff after the notice of proposed rule makings 3.51** Effectiveness of informal contacts after the notice of proposed rule makings Filing petitions to initiate rule making 2.03*** Effectiveness of filing petitions Participating in regulatory negotiations 2.70*** Effectiveness of participating in regulatory negotiations Participating in policy dialogues 3.36 Effectiveness of participating in policy dialogues Participating in other types of online exchanges 2.24 Effectiveness of other online exchanges Participating advanced notices of proposed rule makings 3.17* Effectiveness of participating in advanced notices of proposed rule makings Note: * is significant at the.05 level, two-tail; ** is significant at the.01 level, two-tail; *** is significant at the.001 level, two-tail. advisory boards, and they may not have the resources to participate as often as they would like. There are various ways in which membership on negotiated rule-making teams and advisory committees is determined (Balla and Wright 2001), but they are not open to any person or organization that wants to be involved. Electronic Communication and Rule-Making Participation The use of electronic technology in rule making, which was in its infancy ten years ago, has since exploded. The recent launch of the government rule-making portal gov, which provides one-stop electronic shopping for those interested in participating in the rule-making process, is perhaps the most dramatic example of the embrace of this technology. E-communication is a two-way street. Agencies can use technology such as or bulletin boards to send information to interested parties. They can facilitate the public participation process by establishing processes for groups and individuals to transmit comments, data, and analyses to agencies. They can also open their rule-making records to electronic access and host interactive chat rooms or policy dialogues online. The use of electronic communication has a number of potential benefits for both agencies and the general public (including interest groups). Most directly, having the

15 Furlong and Kerwin Interest Group Participation in Rule Making 367 ability to access data and information online has the potential to open the public participation process to additional people and organizations and ease it for experienced participants. The abilities to educate oneself, submit comments online, and otherwise interact all provide additional time and resources for organizations to use in developing their opinions. There may also be some time savings so that organizations can more easily meet deadlines. Mahler and Regan (2002) conducted a general study of the federal government s use of the Internet and other online sources. Their research examines a number of different uses of online agency services, one of which specifically explored the solicitation of comments by several federal agencies. Based on their study, as well as U.S. General Accounting Office (GAO) reports, a number of agencies have begun to move toward the use of online resources as part of their rule-making process. Services include the ability to access online dockets, allowing the public to electronically submit comments to proposed rules, and online discussions or hearings on rules. It is clear in their study, which examined a number of GAO reports concerning the use of information technology to make government more accessible, that the use of such technology to enhance public participation in rule making is evolving and that all agencies are not developing these resources at the same pace. There are studies of electronic supports for particular rule makings. One of the most thorough is an analysis conducted by Resources for the Future (RFF) that evaluated an online discussion conducted by the Environmental Protection Agency. This process complemented the standard notice-and-comment process for the EPA Public Involvement Policy (Beierle 2002). According to RFF, By most criteria one could use to evaluate the Dialogue, it was a great success (Beierle 2002, 8). Participation increased, there was intensive interaction, and most people were happy with the experiment. RFF argues that the dialogue was an improvement over the formal notice-and-comment process that it was designed to complement. While there were some concerns, such as the representativeness of the participants, the study recommends that the government continue efforts to facilitate such dialogues in the future because they would lead to increased and enhanced participation in the development of bureaucratic policy. The GAO (2000) has also conducted a study that specifically examined how information technology has facilitated public participation. Again, this study showed a large variance between different federal agencies in their use of such technology and how it is being used in the rule-making process. For example, the Department of Transportation has established a very extensive Web site that contains regulatory information for just about every regulatory activity. Other agencies have much more limited electronic access, often related to specific regulatory actions or links to general governmental sites such as the Government Printing Office. Previous published work examines the use of electronic communication from the agency standpoint, while our survey attempts to get some preliminary information regarding the use of these electronic resources by organized groups. We posed five questions regarding the use of electronic communication in the rule-making process. We asked organizations how they monitor rule makings through the use of electronic information from agencies. Two questions focused on the frequency with which certain methods are used, namely, providing written comments in electronic form in response to a proposal and participating in online exchanges other than formal comments. The final two questions asked for the interest groups estimates of the effectiveness of these methods in influencing agency rule making.