Communications Between Congress and Federal Agencies During the Rulemaking Process

Communications Between Congress and Federal Agencies During the Rulemaking Process

March 30, 2023
Communications Between Congress and Federal Agencies
During the Rulemaking Process
Congress often delegates legislative authority to federal
as part of the Member’s representational duties and
agencies in statute. Using that authority, agencies issue
generally viewed as “entirely proper.” Sierra Club v.
regulations to implement legislative objectives and
Costle, 657 F.2d 298, 409 (D.C. Cir. 1981). This is true
programs. Regulations carry the force and effect of law and
even with respect to ex parte communications made during
are often where the details of federal programs and
the rulemaking process. The APA generally prohibits ex
requirements are established. Thus, regulations can have
parte communications with anyone outside the agency,
substantial implications for policy implementation.
including Members of Congress, in “formal” agency
rulemakings and adjudications. However, there is no such
In light of the legal and policy importance of federal
prohibition on ex parte communications during traditional
regulations, congressional committees and individual
notice-and-comment (also known as “informal”)
Members often monitor how an agency implements
rulemaking, the method most often used to promulgate
delegated authority. For example, during the course of an
federal regulations.
agency rulemaking, Congress may seek information about
the status or content of a particular proposed rule. Agencies,
Although legally permitted, there are reasons why an
however, are sometimes unwilling to share that
agency may be reluctant to engage in ex parte
information. Two justifications are often given for this
communications during notice-and-comment rulemaking,
reluctance: a desire to avoid written or oral off-the-record
including with Members of Congress. First, if a rule was
communications, which are sometimes referred to as ex
developed (or was perceived to have been developed)
parte communications, and a desire to protect the
outside of the rulemaking process, the public’s confidence
confidentiality of internal communications that reflect
in the rule and the rulemaking process could be
agency deliberations.
compromised. Second, under modern administrative
practice, an agency generally builds a rulemaking record,
This In Focus discusses the legal principles and practical
which contains public comments, scientific studies, notices,
hurdles that sometimes inhibit the flow of information from
and other materials the agency relied on to make its
federal agencies to Congress during the rulemaking process.
decision. Among other potential benefits, this record assists
It does not address formal oversight mechanisms Congress
courts with judicial review of agency rules. In light of the
has for requesting or requiring information from federal
current practices involving rulemaking records, agencies
agencies, such as Congress’s subpoena power.
may be particularly hesitant to engage in off-the-record
communications—lest a reviewing court decide that the
Congressional Communications During
agency’s decision was wholly or in part reliant on
the Rulemaking Process
information it did not include in the record. If a court were
The Supreme Court held in INS v. Chadha, 462 U.S. 919
to make such a finding, it could vacate the rule.
(1983), that once Congress delegates authority to an
agency, that authority may not be “altered or revoked”
In an attempt to balance the potential benefits from
except through a subsequent legislative enactment.
additional input against these concerns, agencies may have
However, in its delegations of authority, Congress often
formal or informal policies governing their ex parte
gives agencies significant discretion to choose from a range
communications. For example, some agencies require
of policy options. Over the course of an agency’s
summaries of any ex parte communications, including those
rulemaking process, therefore, opportunities may exist for
received from Congress, and require these summaries to be
Congress and the public to steer the agency in a particular
placed into the public rulemaking records associated with
direction.
the agency rules.
In seeking to exert influence over agency rulemaking
Improper Influence
proceedings, Congress has substantial tools at its disposal.
While Members are generally free to voice their views on a
Oversight is one such tool, and it can include not only
rule directly to the agency, there may be rare instances in
formal hearings and investigations but also informal
which a Member’s attempts to influence an agency
communications between the agency and lawmakers.
rulemaking could create legal concerns. Courts have
suggested that an agency rule could be jeopardized if a
Federal laws including the Administrative Procedure Act
Member attempts to impose “extraneous” or “improper”
(APA) do not prohibit Members or congressional staff from
pressure upon an agency and if it can be proved that the
attempting to influence ongoing agency rulemakings by
agency’s rulemaking was in fact affected by that pressure.
communicating their views and preferences directly to the
See, e.g., D.C. Federation of Civic Associations v. Volpe,
agency. Courts have said that such action is both expected
459 F.2d 1231, 1237 (D.C. Cir. 1972).
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Communications Between Congress and Federal Agencies During the Rulemaking Process
Identifying when appropriate attempts at persuasion or
entire documents. Rather, the executive branch must
legitimate uses of political leverage cross into improper
disclose non-privileged information that can be reasonably
political pressure is not easily done. Federal courts have
segregated from privileged information in the requested
suggested that agencies are generally “expected to balance
documents. Finally, even when applicable to a given
Congressional pressure with the pressures emanating from
document or communication, the DPP can be overcome by
all other sources.” Costle, 657 F.2d at 410. Members
a sufficient showing of need. Thus, if Congress has an
voicing their views on a rule is nearly always appropriate.
adequate oversight interest, or if there are allegations of
Things become murkier, however, when a Member
agency misconduct, the protections of the DPP give way.
threatens adverse action against an agency in an effort to
See, e.g., Lynch, 156 F. Supp. 3d at 105.
influence the outcome of a rulemaking. One court
suggested in a 1971 decision that a Member attempting to
The DPP does not prohibit an agency from disclosing
influence an agency rulemaking by threatening to withhold
information. Asserting the DPP in response to a
funding for an unrelated agency program is the type of
congressional request is a choice an agency may make
“extraneous” or “improper” pressure that could put a rule in
when certain information is requested, but it does not have
jeopardy—at least when it can be proved that aspects of the
to do so.
rule were “based in whole or in part on the pressures
emanating” from the Member. Volpe, 459 F.2d at 1246.
Additional Options for Congress to
Engage in the Rulemaking Process
Congressional Communications
As described above, agencies are generally not prohibited
Regarding Agency Decision-Making
from communicating with Congress about specific
In addition to communicating their views to an agency,
rulemakings. Where difficulties are encountered, Congress
Members of Congress and staff may also wish to gain
has other avenues for engaging in the rulemaking process
insight into the agency’s internal deliberative process
and influencing the outcome of rules.
during a rulemaking. This may be especially true during the
earliest stages of the rulemaking process, when an agency is
The most direct way for Congress to influence rules is
most likely to be considering various regulatory approaches
through legislation. Congress can direct an agency to take
and is perhaps most open to a variety of regulatory
specific actions, or it can prohibit agencies from taking or
outcomes and susceptible to influence.
finalizing certain actions. Congress’s power of the purse
gives it control over how agencies use appropriated funds.
While informed congressional oversight often involves
Congress can, for example, deny funds to finalize or
access to internal agency communications, agency
implement a rule. Congress can also hold hearings on rules
deliberations relating to an ongoing rulemaking are
under development (though, at times, agencies have
sometimes protected by the deliberative process privilege
asserted the DPP when asked about rules under
(DPP). A component of executive privilege, the DPP is a
development).
common law privilege with possible “constitutional
dimensions” that applies to agency documents and
Members of Congress, like members of the public, can
communications that are both “predecisional” (created prior
submit comments to an agency on a proposed rule during
to the agency reaching its final decision) and “deliberative”
the public comment period. Agencies are not required to
(related to the thought process of executive officials). See.
treat comments submitted by Members or committees
e.g., Committee on Oversight and Government Reform v.
differently from other comments, but a letter from a
Lynch, 156 F. Supp. 3d 101, 104, 108 (D.D.C. 2016). This
Member or committee may put political pressure on an
would cover information on how and why an agency moved
agency.
toward a certain policy choice and information that would
prematurely disclose the agency thought process, including
Finally, Congress may consult the publicly available
a variety of early-stage rulemaking documents such as
Unified Agenda of Federal Regulatory and Deregulatory
leadership and staff recommendations and proposals, draft
Actions to ascertain information about a particular rule
rules, and internal policy debates. The DPP is frequently
under development. The Unified Agenda is a government-
implicated in congressional oversight investigations,
wide document published twice annually that contains a list
because it gives protection to the very decision-making
of all proposed and final rules that federal agencies are
process that Congress is trying to understand.
developing, including a brief summary of each rule and an
estimated timeline for its completion. The Unified Agenda
While the DPP may be a hurdle to Congress and its
is available at http://www.Reginfo.gov.
Members gaining access to an agency’s deliberations, it is
not an absolute bar to congressional oversight of an
Maeve P. Carey, Specialist in Government Organization
ongoing agency rulemaking. First, the DPP does not protect
and Management
factual information. Thus, Congress may access materials
Todd Garvey, Legislative Attorney
that are essential for informed and effective oversight,
including research and data that forms the underlying basis
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for a proposed rule. In addition, the DPP does not protect

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Communications Between Congress and Federal Agencies During the Rulemaking Process

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