Visual Rulemaking
This Article uncovers an emerging and significant phenomenon that has gathered momentum only within the last few years: the use of visual media to develop, critique, and engender support for (or opposition to) high-stakes, and sometimes virulently controversial, federal rulemakings. Visuals have played little historical role in rulemaking. Instead, the rarified realm of rulemaking has remained technocratic in its form—defined by linear analysis, blackand- white text, and expert reports. Now, due to the explosion of highly visual social media, a visual transformation in rulemaking has resulted in what might at first appear to be two separate universes: on one hand, the official rulemaking proceedings, which even in the digital age remain text-bound, technocratic, and difficult for lay citizens to comprehend, and on the other hand, a newly visual— newly social—universe in which agencies, the president, members of Congress, and public stakeholders sell their regulatory ideas. But these universes are not in fact distinct. Visual rulemaking—even when it is outside the four corners of official rulemaking proceedings—is seeping into the technocracy. This has significant theoretical implications for administrative law. We conclude that agencies’ use of visuals to market their regulatory agendas furthers two fundamental theoretical justifications underpinning the regulatory state: transparency and political accountability. In addition, visual tools have the potential to democratize public participation and to enable greater dialogue between agencies and the public. Despite these theoretical advantages, visual rulemaking raises serious risks. Visuals may oversimplify complexities, appeal to emotions over intellect, and fuel partisan politics. Visual rulemaking also implicates significant doctrinal questions, including fundamental provisions of the Administrative Procedure Act and prohibitions on agency lobbying. While none of these doctrinal issues threaten to obstruct visual rulemaking entirely, they do suggest that agencies’ use of visuals may need to change some around the margins. Ultimately, we conclude that administrative law doctrine and theory can and should welcome the arrival of visual rulemaking.