Final Report (all chapters)

level, where bureaucratic authority and technical expertise clash against popular expectations to
substantially affecting the decision-making process.
Public consultation as understood in this report is a tool to correct political failures and to
mitigate agency capture, not a means to subvert the federal system of governance. 50 Institutions
of public consultations are designed to strengthen the credibility of and trust in our system of
representative democracy. Views gathered through a process of public consultation should play
an important role in agency decision-making, but they should not mechanically translate into a
specific course of action. The relationship between Congress, the office of the president, the
administrative state, advocacy and interest groups, and the general public is a complex one that
cannot be reduced to simple normative expectations. 51
Target audience: Because this report is focused on federal regulatory institutions, references
to the general public always identify the entire U.S. population, i.e., a population of individual
citizens endowed with certain rights and obligations, as opposed to a population of stakeholders
such as trade groups, scientific societies, or religious organizations. Obviously, individual
citizens may represent specific social groups; their views are likely to reflect specific social,
ethnic, or racial backgrounds. But a process of public consultation is not designed to elicit groupspecific
views. Rather, it affords the public as a whole a chance to be heard. Accordingly, no
efforts are made to include group-specific views. This is not to say that these views are
unimportant, just that there are already plenty of opportunities for them to be heard in other
settings.
Representativeness: As a practical matter, it is impossible to envisage a mechanism of
public consultation that is literally inclusive of the entire U.S. population. As such, the public
participating in the consultative process should be a sample large enough to be representative of
the U.S. population with regard to the usual socio-demographic variables. We believe that this is
not only an acceptable compromise, but that in a sense, a randomly selected sample of the U.S.
population may even be superior to traditional voting. For example, a representative sample
ensures that the views of social groups unlikely to go to the polls are being included. It also
ensures that these views are not interpreted and misused by political entrepreneurs for their own
self-interested purposes.
Knowledgeability: A consultative process seeks to elicit informed opinions. This
requirement sets consultative processes apart from classic polls and shields them against the
common – and often justified – criticism that opinion surveys reflect uninformed views. By
making sure that the participating public has an opportunity to familiarize itself with complex
policy questions, an institution of public consultation takes on a role the news media are
expected to play but are increasingly unlikely to meet.
50
51
William F. Funk, "Regulatory Negotiation and the Subversion of the Public Interest," Duke Law Journal 46
(1997).
We discuss this question in more depth in chapter 11.
269