Recoding America: Why Government Is Failing in the Digital Age and How We Can Do Better

by Jennifer Pahlka

The United States Department of Agriculture tried this when it was about to issue a rule regarding the minimum peanut content in peanut butter. Advocates wanted it to be at least 90 percent peanuts, manufacturers wanted to require only 87 percent peanuts, and adjudicating that 3 percent difference under the formal rulemaking process took the Food and Drug Administration twelve years of the 1960s and 1970s. The case went almost all the way to the Supreme Court, and the oral hearing alone took twenty weeks and produced a 7,736-page transcript.12 (The advocates ultimately prevailed.) Since then, when Congress writes laws, it usually avoids the words “on the record” when it comes to rulemaking, leaving agencies the option to choose the informal “notice and comment” process. Unsurprisingly, it’s chosen every time. Peanut butter killed formal rulemaking.