When federal guidance increases confusion, it’s time for public input

I’ve been pouring over federal guidance documents for 20 years as part of my research on American public policy. Sound boring? It’s actually fascinating, because reading these documents, which touch on every aspect of American life, is like looking into the beating heart of our government. 

The central role guidance documents have played during the COVID-19 pandemic has me thinking even more about the general confusion and lack of transparency bedeviling the guidance process. It’s a problem worth solving when you consider the profound impact guidance documents have had on Americans in the past year alone.

Comply or defy? That’s the question we face when the U.S. Centers for Disease Control and Prevention (CDC) issues new guidance documents on dealing with COVID. In September, guidance from the CDC arrived to clarify the debate around which Americans should receive booster shots of the Pfizer-BioNTech vaccine. Booster rules for people vaccinated with Moderna and Johnson & Johnson came later. Meanwhile, many Americans, unwilling to wait, sought out shots on their own.

But what’s safe once you snag a booster shot? So far the CDC has declined to provide guidance on post-booster activity, so people are making their own decisions.

This is just one example of the kind of controversy stirred up in 2021 by federal guidance documents, which are normally issued with little fanfare and are simply policy recommendations, not laws. This year’s dustups began in February when the CDC issued much-anticipated guidance on reopening K-12 schools during COVID, which some school districts interpreted as a government mandate and others ignored as a mere suggestion. 

In June, guidance from the Department of Education extending protections against discrimination based on sexual orientation or gender identity generated ferocious debate. And the CDC’s August guidance urging people to mask up again in COVID hotspots was immediately opposed by governors in Florida, Texas and South Carolina. 

Issued by federal agencies, guidance documents explain how to comply with laws or regulations on everything from cosmetics to cybersecurity. How many are issued by the government each year? No one knows exactly, but the number is huge. They play a critical role in the federal government’s ability to deliver services and enforce standards, yet few Americans understand how guidance documents are created, how to access them or how to participate in their development.

 Many guidance documents are technical, and their effects concentrate on specific business areas or industries. To the regulated entities in these fields, they provide critically important standards that govern their work. Others, like the CDC mask guidance documents, are broader in application and affect millions of people.

Every agency has its own way of creating and issuing policy recommendations, and there’s no central archive for an interested citizen or organization to consult in an effort to see exactly what our government agencies are up to. This lack of transparency increases the cost of doing business or running an organization, as people devote significant work hours to navigating a thicket of guidance documents, struggling to separate agency guidance from other agency actions. This is particularly tricky for small businesses that lack an army of lawyers and lobbyists, but whose businesses are materially affected by changes to guidance content.

Of course, it would make sense for people and organizations affected by guidance documents to help develop them, but right now there’s typically no way for the general public to share their concerns. Regulators do their work without a full understanding of how their policy decisions will affect the lives of Americans. When input is allowed, typically only a small number of unrepresentative groups participate. 

So how can we improve this administrative tool? For starters, we need a new government-wide website where the public can easily locate guidance documents. We also need an efficient process for public input into the most important guidance documents. This would modernize the way our government works without sacrificing one of the most important benefits of guidance documents: Their timeliness, which allows agencies to respond to changing conditions quickly and without involving the vast machinery of Congress. Such reforms could be implemented via executive order or presidential memoranda, or through new congressional legislation.

I’m not the first person to point out the shortcomings in the guidance document process. In fact, politicians from both sides of the aisle have suggested the need for reform in the past. But given that 2021 has turned out to be the year of guidance, there’s no better time to make this essential public policy tool more transparent and more democratic.

Susan Webb Yackee is director of the La Follette School of Public Affairs and a Collins-Bascom Professor of Public Affairs and Political Science at the University of Wisconsin-Madison. She is the author of the new report “Guidance on Regulatory Guidance: What the Government Needs to Know and Do to Engage the Public.”