Hearing, not heeding: procedural acknowledgment and substantive influence in rulemaking

Abstract

Public participation processes promise that citizens will be heard, but rarely guarantee they will be heeded. This distinction between procedural acknowledgment and substantive influence lies at the heart of bureaucratic responsiveness, yet these two forms of responsiveness are often conflated in empirical research. I demonstrate that in federal rulemaking, procedural acknowledgment (being heard) is empirically distinct from substantive policy influence (being heeded). Drawing on theories of bureaucratic responsiveness, I argue that agencies strategically cite commenters not primarily to signal agreement but to build defensible administrative records that satisfy procedural requirements while preserving their policy autonomy. Analyzing 854 federal rules from 2017 to 2023, I use semantic text analysis to track changes in binding regulatory provisions distinct from the explanatory preamble. I show that agencies systematically cite comments they ultimately reject, particularly from well-resourced groups. Roughly two-thirds of comment citations are not accompanied by any responsive change to the regulatory text. This reveals that procedural responsiveness can function as a strategic substitute for substantive policy change. These findings suggest that procedural engagement and substantive influence operate as distinct modes of bureaucratic responsiveness, with agencies often prioritizing legal defensibility over policy adaptation when facing potential judicial review.