We can think of the administrative rulemaking process as handing hammers to interested parties with which they can pound agencies. It seems reasonable to expect that regulated parties, which have profits on the line and insider knowledge to share, will be able to pound agencies harder than public interest groups. And the rulemaking process does indeed seem to skew in this expected direction.
This Essay explores one suggestion for a partial fix: Require prompt, electronic, and searchable disclosure of communications to agency officials directly bearing on the merits of potential rulemaking — regardless of whether a formal notice of rulemaking has been issued. Adopting this aggressive disclosure regime would not correct the basic problem of a resource imbalance that so favors industry — but then nothing, realistically, could. It would, however, make it somewhat easier for public interest groups to obtain the information they need to influence rulemaking in a timely way — before an agency’s policy choices crystallize.