Introduction

Administrative agencies are not required to disclose ex parte communications regarding proposed regulations.[1] To promote fairness, avoid regulatory capture, and live up to President Obama’s emphasis on transparency, administrative agencies should be required to disclose ex parte communications with interested parties in the public record accompanying a regulation.

Promoting Fairness

Administrative agencies should disclose ex parte communications to promote fairness. The failure to disclose creates two records: “one administrative record for the public . . . and another for the [administrative agency].”[2] If an industry group objects to regulatory action in an ex parte communication, it denies opposing parties a fair opportunity to be heard on the same issue. This may result in suboptimal regulations, because their underlying bases are not subject to a full public review.

Avoiding Regulatory Capture

Disclosure helps prevent regulatory capture. Given the pervasive influence lobbyists have in Washington, they have unique access to agency decision makers. This allows them to sell their clients’ agendas to an agency through ex parte communications in addition to the regular notice and comment process. Subsequently, there is a potential for abuse if the agency becomes beholden to industry lobbyists. The only way to determine if an industry is exercising undue influence is through an accurate and public record of the material contact between the two. The mere publication of ex parte communications will discourage their occurrence as agency leaders will want to avoid the appearance of regulatory capture.

Increasing Transparency

President Obama has described his administration as the most transparent administration in history. He has stated that “[t]ransparency promotes accountability” and directed agencies to use technology to “put information about their operations and decisions online and readily available to the public.”[3] The disclosure of ex parte communications is consistent with these stated goals.

Protecting Whistleblowers

The disclosure of ex parte communications risks exposing whistleblowers and industry informants. When David Kessler, as commissioner of the Food and Drug Administration, decided to regulate tobacco, he relied upon “skittish” informants to share industry secrets.[4] Those informants would not disclose industry secrets to the FDA if their communications would have to be disclosed. Therefore, any Executive order requiring the disclosure of ex parte communications should include an exception for communications with whistleblowers.

Conclusion

To promote fairness, avoid regulatory capture, and increase transparency, the President should issue an Executive order requiring administrative agencies to disclose ex parte communications with interested parties. If appropriate steps are taken to protect whistleblowers, this Executive order will only improve the regulations promulgated by administrative agencies.

Vinay Limbachia

[1] Sierra Club v. Costle, 657 F.2d 298, 404 (D.C. Cir. 1981).

[2] Home Box Office, Inc. v. FCC, 567 F.2d 9, 54 (D.C Cir. 1977) (alteration in original).

[3] Barack Obama, Memorandum for the Heads of Executive Departments and Agencies, The White House, http://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment.

[4] Lauran Neergaard, Ex-FDA chief tells of tobacco-probe frustration, The Seattle Times (Jan. 7, 2001, 12:00 AM), http://community.seattletimes.nwsource.com/archive/?date=20010107&slug=kessler07.