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    Room for One More Rulemaking Think Tank?

    BY Cindy Skrzycki
    01/13/2004
    by Cindy Skrzycki on 1/13/04.

    There is the Center for Regulatory Effectiveness, the AEI-Brookings Joint Center for Regulatory Studies, the Mercatus Center at George Mason University, the Cato Institute, Citizens for a Sound Economy, the Heritage Foundation, and the Center for Progressive Regulation. Not to mention the lawyers and academics who delve into the regulatory fine print for a living, churning out policy papers, books and research.

    Does Washington need another regulatory think tank?

    Judging by the interest in a conference held at American University on Thursday, the answer may be yes, if it's a place where ideology can be parked at the door, supporting donors are not suspect, and the issues under consideration are fresh ones.

    About 150 people showed up for a program organized by Cornelius M. Kerwin, who is the American University provost and an authority on the regulatory process. Kerwin, author of a book called "Rulemaking: How Government Agencies Write Law and Make Policy" and professor in the School of Public Affairs at AU, set up the conference in part to see how much interest there would be in a new venue for studying the regulatory process. The day-long session was on the regulatory topic du jour: electronic rulemaking.

    Turns out there was plenty of interest. The participants came from think tanks, colleges and universities, federal agencies, Washington offices of large and small companies, trade associations and public interest groups. There were oral presentations, PowerPoints, off-the-cuff remarks and chatter about what kind of electronic system the federal government will build over the next few years to accept, manage and display all the materials that go along with thousands of rules made annually.

    The stakes are high and interest in electronic rulemaking is keen, making the conference a good test for interest in a larger endeavor such as an institute for rulemaking.

    The Bush administration's e-rulemaking project, which is being run by the Environmental Protection Agency, the Office of Management and Budget and a committee of agencies, is a multimillion-dollar replacement for the patchwork of rulemaking systems and document repositories, or dockets, that some 180 federal agencies, boards and commissions now use.

    The change has created tension among the agencies over whether the choice will be to run a giant, centralized docket or one that allows agencies with highly developed electronic systems -- such as the Department of Transportation, the Food and Drug Administration and the Federal Communications Commission -- to keep what they have built and link themselves to a larger system. So far, only the first "module" of the project has been developed: www.regulations.gov, which is capable of displaying all the regulatory proposals from federal agencies and taking comments on them.

    The next generation, which is under consideration, will also have to be able to display underlying studies and analyses, and offer users lots of other electronic bells and whistles for searching and retrieving documents online.

    Conference discussion centered on new technology, the operation and future of the federal government's efforts to use the Internet for rulemaking, expansion of the public's role in rulemaking, and how electronic systems might be evaluated for their effectiveness. Participants said they liked taking the debate out of a government setting.

    "This is valuable because it's a different arena to talk about things. . . . It's a cheap, easy way to toss around ideas. My God, some of these people are the best minds in this area," said Oscar Morales, director of the federal government's eRulemaking Initiative.

    "You need to be able to pull people out of their agencies or the boxes that they are in and give them a larger community to ask questions," said Jonathan D. Breul, associate partner for IBM Business Consulting Services and senior fellow at the IBM Center for the Business of Government.

    That kind of response to the day's agenda confirmed Kerwin's suspicion that there would be interest in forums like this one and others that AU might plan on different aspects of the regulatory process.

    "This is the first step in the active consideration of whether there is enough interest to sustain an institute of rulemaking," Kerwin said.

    He said he was sufficiently impressed with participation in the e-rulemaking program to raise the question of "whether a center or an institute focused on rulemaking would be a sensible move for AU."

    Funding would have to be found, a nonpartisan director hired, and the blessing of the university procured. Kerwin expects that a new entity would draw on AU faculty and "90 percent of the participants at the conference" for the brainpower to sustain such a place. Some of the participants at the conference had gotten a whiff of the plan and expressed interest in the top job.

    Kerwin stressed in an interview that this would not be a place for political commentary on regulatory policy, the domain of some of the aforementioned think tanks devoted to regulatory analysis.

    He said an AU institute would do research on the rulemaking process, try to improve how rulemaking is done by agencies, and train students and others in how the regulatory process works.

    Kerwin, and other scholars and experts in regulation, think the process of rulemaking is not well understood by the public and is under-studied by the academic community compared with the presidency, the courts and how the legislative process works.

    "Given the import of regulation to the body politic and the delegation [of power from Congress] to the rulemaking process, we have not devoted enough scholarly time and attention to it," Kerwin said.

    His colleague, Cary Coglianese, associate professor of public policy at Harvard University's John F. Kennedy School of Government, said, "There is a lot of work on how Supreme Court justices do their jobs, but remarkably little on the people who write rules."