The Intersection: Jun 2011

Beth Parker co-authored this article.

On his first full day in office, President Obama called for increased openness in government. A few days later, the White House issued the federal government’s Open Government Directive (OGD), which called upon each federal agency to increase openness and public engagement in its programs and operations.

Traditionally, grassroots networks have been engaged when there is a need to promote, prevent or shape legislation before it becomes law.  The power to influence the process of transforming law to real-world regulations was ceded to the lawyers and lobbyists who met with regulators behind closed doors.

OGD has changed the game. It offers an unprecedented opportunity to engage everyday citizens in the regulatory process.  Given this new open environment, regulatory grassroots engagement is perhaps just as–or more–effective than traditional legislative grassroots when it comes to influencing the real-world outcomes of laws.  Additionally, with a divided government and two sweeping legislative reforms passed last year, much of the nation’s policy battles have moved to the halls of administrative agencies.

Once a proposed regulation is posted in the Federal Register, the public has an opportunity to issue comments within a specified period of time. The administration’s new website, regulations.gov, provides a straightforward gateway to find rules and post comments online, which makes it easy to activate any grassroots network and grow the volume of comments.

The comment period provides an opportunity not only to influence regulatory outcomes, but also to delay regulations. In response to a deluge of comments, we are seeing regulators request more time in order to adequately review and consider all of the comments they have received.

One recent example illustrates the sheer power of grassroots regulatory advocacy.

In May 2010, the U.S. Department of Education set out to tighten oversight over the growing for-profit higher-education sector through regulation that would require these institutions to produce “gainful employment” for their graduates.

But after receiving about 90,000 comments—about twice as many as ever before—on the proposed rule, the Department announced it would delay issuing the final regulation until early 2011 in order to give interested parties more time to “clarify the comments they’ve submitted and respond to questions from department officials.”

With the flood of comments, the Department had no choice but to delay the final rule.  Nancy Broff, a lobbyist for for-profit colleges, explained that if the rule were challenged in court, the department would “‘have to be able to say to a judge with a straight face’ that it had considered and analyzed all the public input it received.” (http://chronicle.com/article/Education-Dept-to-Delay/124617/)

The Department of Education finally issued the final rule in June 2011 – more than a year after the initial deadline. The regulation, which takes effect in July 2012, denies federal aid to programs that fail three “tests” of gainful employment three times in a four-year span. The most significant change from the previous draft was a multiyear grace period before programs are shut down. Analysts agree that the new rule was much more lenient on for-profit schools than the original rule.

So, how do companies and organizations take advantage of this new opportunity to impact regulation through grassroots advocacy? First, and most obvious, it is essential to identify which agencies need to be reached and how to reach them.  For example, in addition to regulations.gov, most federal agencies have their own online tools available to the public.

Second, as with legislative advocacy, it is important to effectively communicate the need for participation to constituents and grassroots activists.  Potential advocates for any cause must understand what is at stake and what their involvement can accomplish.  Keep in mind that proposed regulations can have an impact well beyond a traditional grassroots base of members or employees.  For example, while assisting an industry group in their fight against a proposed regulation regarding food, VOX mobilized a large number of citizens to comment through targeted digital advertising carrying a very personalized consumer-oriented message.

Any regulatory strategy should include a breadth of tactics and considerations – expanding well beyond a direct focus on online comments.  Although regulators are trained to do diligent research and consider facts and figures in developing their regulations, there are always political considerations, and employing political tactics during the process can add to regulatory efforts.  Consider influencing the influencers – engage grassroots to identify legislative champions, mobilize third party groups and reach out to the White House.

As government becomes more open and transparent, opportunities abound for grassroots involvement. Today, the average citizen has the ability to make a significant impact on public policy throughout the entire legislative AND regulatory process.  Grassroots efforts need not—and should not—end once legislation becomes law. That is only the beginning.