Bridget C.E. Dooling (GW Regulatory Studies Center) & Rachel Augustine Potter (University of Virginia) have posted Rulemaking by Contract (74 Admin. L. Rev. (forthcoming 2022)) on SSRN. Here is the abstract:
Contractors have become a ubiquitous presence in the administrative state. How these private sector entities intersect with the rulemaking process, however, is not well understood. Unpacking contractors’ role in rulemaking is important, not least because rulemaking is the executive branch’s core lawmaking function. It is also important because there is a potential accountability blindspot when it comes to contractors in rulemaking. The web of law and policy surrounding contractors is complicated. Protections in place relating to procurement, ethics, recordkeeping, and disclosure are broadly conceived and not readily applied to the nuances of rulemaking.
Building on a survey of agency rulemaking contacts and interviews with 45 agency officials, contractors, and experts, this empirical study provides a comprehensive account of contractors’ roles in rulemaking. We describe how agencies perceive contractors in rulemaking, the tasks that contractors perform, and why and how agencies use them to support rulemaking. Our primary finding is that contractors are involved in almost every aspect of the rulemaking process, from soup to nuts. We conclude that, at many agencies, contractors are a core feature—and perhaps also a bug?—in the contemporary rulemaking process and, as such, legal scholars, policymakers, and practitioners ought to take their roles seriously.