Final Report (all chapters)

12 Designing Mechanisms of Public Consultation
A key element of our regulatory proposal is an institutionalized mechanism of public
consultation. In chapter 10, we have argued that consulting with the public is necessary to
mitigate the distorting impact of interest group politics, while in chapter 11, we have shown that
an institution of public consultation is indispensable both to ensure agency independence and to
prevent factionalism. In the following discussion, we lay out in some detail how it may be
possible to implement institutions of public consultation that meet the requirements discussed in
section 10.7: The agency must ensure that the consulted public is a representative sample of the
general population, that the sample is balanced, that the consulted public is adequately informed,
and, last but not least, that the process is deliberative.
With regard to the implementation of mechanisms of public consultation, it is crucial that
the enabling legislation be sufficiently specific. First, the public should be consulted on any new
regulatory initiative. Second, Congress should specify in some detail what criteria a consultative
mechanism should meet. Third, Congress should mandate that the consultative process be
conducted at the early stages of the rule-making process, in parallel to traditional consultations
with organized interest groups, and in any case well before the announcement of a proposed new
rule. Fourth, the enabling statute should require that the outcomes of any process of public
consultation be published as soon as the consultation has been concluded, but in any case no later
than the publication of a proposed new rule. All materials related to the consultation process
must be made available to the general public.
In the remainder of this chapter, we explore two possible mechanisms of public consultation,
deliberative panels and the consultative college. These two institutions of public consultation are
reminiscent of James Fishkin’s “deliberative polls.” 1 Like Fishkin, we emphasize the role of
informed public opinion in policy-making. Our approach differs from Fishkin’s in that feasibility
considerations play a more prominent role in our discussion. Another important difference is the
role played by consultative processes in the administrative system. In our view, institutions of
public consultation should strengthen representative democracy, not be regarded as a possible
substitute. Accordingly, we articulate more precisely the role of institutions of public
consultation in the regulatory process.
1
James S. Fishkin, "Deliberative Polling and Public Consultation," in Deliberative Democracy in Theory and
Practice ( Turin: European Consortium for Political Research, 2002); James S. Fishkin, "The Televised
Deliberative Poll: An Experiment in Democracy," Annals of the American Academy of Political and Social
Science 546 (1996); James S. Fishkin and Chair Patterson-Bannister, "Virtual Democratic Possibilities:
Prospects for Internet Democracy" (paper presented at the Internet, Democracy and Public Goods, Belo
Horizonte, Brazil, November 6-10, 2000); Iain S. McLean, "Does Deliberation Induce Preference Structuration?
Evidence from Deliberative Opinion Polls" (paper presented at the American Political Science Association
Annual Meeting, Washington, D.C., August 30-September 4, 2000, 2000).
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