Visual Regulation—and Visual Deregulation, by Elizabeth Porter & Kathryn Watts

by Guest Blogger — Monday, Jan. 29, 2018

Historically, rulemaking has been defined by dense text and linear analysis. Yet, during the Obama administration, a colorful new visual rulemaking universe emerged—one that splashed rulemaking-related images, GIFs, and videos across social media channels. Agencies, interested stakeholders, and President Obama himself used sophisticated visual tools to develop and engender support for—or opposition to—high-stakes federal rulemakings.

The EPA emerged as one of several notable pioneers in this emerging area during the Obama administration. It routinely leveraged visual media to promote many of its high-profile rulemakings—rulemakings that involved everything from ozone standards to mercury, clean power to clean water, and more.

Consider, for instance, the EPA’s Clean Power Plan. From the start of that rulemaking, the EPA unleashed a range of visuals aimed at marketing its proposed rule to the public. These visuals included a whiteboard video, “Clean Power Plan Explained,” posted to the agency’s YouTube channel, which used basic drawings to illustrate how EPA’s proposed rule would “boost our economy, protect our health and environment and fight climate change.” The video, like many other visuals deployed by the EPA during the rulemaking, seemed primarily aimed at persuading viewers about the value of EPA’s actions. It has now been viewed over 35,000 times.

Notably, President Obama used the power of visual communication to claim the Clean Power Plan rulemaking as his own. Specifically, just one day before the EPA announced its final version of the Clean Power Plan, Obama released a YouTube “Memo to America” in which he took political credit for the rule. The video showed images of the great outdoors, accompanied by music and Obama’s own voice, to illustrate how his “administration” was releasing what he called “the biggest, most important step we’ve ever taken to combat climate change.” The video never once mentioned that the Clean Power Plan was actually the product of a lengthy, highly technical rulemaking process led by EPA. Indeed, it never mentioned the EPA at all. Instead, Obama spoke in general terms about his “administration” taking action, using the video to claim political control over and ownership of the Clean Power Plan.

As we have previously argued, these sorts of visuals—visuals deployed by the White House, as well as by agencies, in rulemaking proceedings—may well help to bring greater transparency and political accountability to the regulatory state. They promise to do so by highlighting—in a very public way—the important role that the President of the United States plays in directing and influencing federal agency rulemaking regarding key priorities, such as the EPA’s efforts to combat climate change.

In addition, if used to invite broader public participation in rulemaking proceedings, these same visual tools have the potential to democratize public participation and to enable greater dialogue between agencies and the public. Because visuals are easy to create and to digest in today’s social media culture, visual rulemaking could be used to empower a broader range of stakeholders—not merely privileged regulatory insiders who are well-equipped to navigate dense text. 

As of now, however, it remains to be seen whether these potential benefits of visual rulemaking—namely, greater transparency, political accountability, and public participation— will be obtained. While it is still too early to tell for sure, there are at least two data points to take note of at the one-year mark of Trump’s presidency.

First, much like Obama, Trump uses visual communication techniques to highlight in a very public way the important role that the President plays in directing and influencing federal rulemaking. In contrast to the Obama administration’s focus on new and updated federal rules, however, Trump’s use of visuals depicts his efforts, and those of his administration, to push forward his deregulatory agenda. Often these images depict Trump or others in his administration, such as EPA Administrator Scott Pruitt, signing documents aimed at repealing regulations. Other visuals are designed to stress Trump’s efforts to cut regulatory “red tape,” as well as his efforts to help those who he asserts are negatively impacted by certain regulations, such as coal miners. These sorts of carefully curated images are all designed to reinforce the Trump administration’s anti-regulatory theme. In this sense, both the Trump and Obama administrations have used visuals to further two important regulatory values: transparency and political accountability.

The second data point, however, is more concerning. Immediately after Trump took office, various agencies were reportedly told to freeze their social media activity. Later, a photographer for the Department of Energy was fired after he leaked photos of Rick Perry, the Secretary of Energy, meeting with a major player in the energy industry who also donated to support Trump. While these and similar anecdotes do not all relate directly to rulemaking proceedings, they do suggest that, at least beyond the confines of images designed to tell the Trump administration’s deregulatory tale, the Trump administration may well be squelching agencies’ use of visual channels, thus sharply undercutting transparency in government. While images can keep the American public informed of how regulations affect their lives, images can also be used to tell a one-sided story.

In short, although visual rulemaking emerged as a powerful force in the Obama administration, the future of visual rulemaking remains to be seen. While Obama used visuals to help him push a regulatory agenda, the Trump administration, at least to date, seems to be embracing visuals primarily to help it paint a single picture: that of its deregulatory efforts.

Elizabeth Porter is the Charles I. Stone Professor of Law at the University of Washington School of Law and Kathryn Watts is the Garvey Schubert Barer Professor of Law at the University of Washington School of Law.

This post is part of a symposium entitled How Agencies Communicate. You can read all the posts here.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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2 thoughts on “Visual Regulation—and Visual Deregulation, by Elizabeth Porter & Kathryn Watts

  1. Leigh Osofsky

    This interesting post strikes me as underscoring the current information crisis we face. The democratization of information – via social media and other avenues – has the capacity to empower people by providing them information they never would have had before. But, it also threatens to silo us through one-sided, deceptive dissemination of information. This raises the question: How can administrative and transparency law respond to the information crisis? Surely, we want our legal system to acknowledge that there is an extraordinary amount of additional avenues of information, relative to the those that existed when the rules regarding agency reason-giving and transparency were created. How can we revise the rules to reflect current realities?

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  2. Susan C Morse

    Perhaps it is systematically easier to produce visual images that communicate deregulation compared to visual images that communicate regulation. Certainly a visual image that tries to give any detail about the content of a regulation is tricky. How to summarize a complicated provision of law in a soundbite? I remember using “Very roughly,…” in client alerts drafted at law firms. Is there a bit of “very roughly” in an Obama-like representation of a visual rule, so that we should not hold an administration to its visual depiction as a description of the law, or the agency’s position? That would take the pressure off, but perhaps dilute some possible outcomes of the visual rulemaking effort. This work grapples with an important and difficult set of issues that is certainly fully upon us, since visual rulemaking and its cousin, visual deregulation, are surely here to stay.

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