Few Americans understand the extent to which an obscure public policy tool known as a guidance document affects their daily lives. Regularly issued by federal agencies, these documents explain how to comply with laws or regulations on everything from cosmetics to cybersecurity.
In a report published by the IBM Center for the Business of Government, La Follette School Director and Professor Susan Webb Yackee provides a roadmap for improving the creation and management of guidance documents by fostering a more citizen-centric process.
“Federal agencies can use guidance documents only to recommend action, but in practice they are often treated as binding, sometimes because people simply don’t understand how to challenge them, or because they don’t fully grasp the purpose of guidance documents,” Yackee says. “As a result, critics argue that guidance documents coerce compliance and result in regulatory overreach.”
Federal agencies use guidance documents for high profile policy topics, like transgender rights; however, most guidance documents are technical in nature, with their effects are concentrated on specific business areas or industries. At times, these entities recoil from the additional layers of regulation imposed by guidance; other times, businesses proactively request agencies to issue guidance to clarify agency practice.
Some government agencies work with stakeholders to create guidance documents, but it is often done in an ad hoc and nontransparent way. Yackee’s report, “Guidance on Regulatory Guidance: What the Government Needs to Know and Do to Engage the Public,” recommends several reforms, including creating a governmentwide website where the public can find all guidance documents currently in effect.
Yackee is hopeful that this vital public policy tool can be reformed.
“Politicians from both sides of the aisle have expressed concern about the status quo,” she says. “And I think a broad spectrum of Americans share the goals of fostering greater transparency and public engagement. These types of common-sense reforms are hard to argue against.”