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Unmasking AI’s Role in Public Policy: Why Transparency in Rulemaking Matters
Artificial intelligence is rapidly transforming various sectors, and its potential application in government, particularly in the intricate process of rulemaking, is a topic gaining significant attention. From the Trump Administration’s exploration of AI for evaluating federal workers and managing contracts to recent proposals like the “DOGE plan” suggesting AI identify regulations for rescission, the interest in leveraging AI for governance is undeniable.
AI’s Potential and Perils in Rulemaking
Imagine AI tools assisting agencies in numerous ways throughout the rulemaking process. These advanced systems could identify subjects ripe for new regulations, pinpoint existing rules needing revision, or even help agencies set the substantive content of regulations by spotting patterns in vast datasets. Generative AI, for instance, could draft rule preambles or craft responses to public comments.
Proponents envision these uses leading to more effective public policy, enhancing the technical capabilities of regulators, and even boosting public participation. However, skeptics raise important concerns. They fear AI could displace crucial human discretion and decision-making, diminish transparency, produce biased or arbitrary results, and compromise privacy and data governance safeguards. Regardless of where one stands on the benefits and risks, knowing if and how agencies are deploying AI tools is of substantial public importance.
The Crucial Need for Disclosure
This is where transparency becomes paramount. The public has a vested interest, and arguably a right, to understand how agencies are utilizing AI. Congress has already taken initial steps, requiring agencies to publish AI “use case” inventories. Beyond this, existing legal frameworks like the Administrative Procedure Act (APA) have long mandated agencies disclose the “critical factual material” underlying proposed rules, including the “assumptions and data” relied upon. When agencies employ computer models, they are expected to explain the methodology and assumptions used, and this principle naturally extends to AI.
Public policy strongly supports this push for disclosure. The Administrative Conference of the United States emphasizes that transparency in AI systems can achieve valuable goals like legitimizing the systems, facilitating review of AI-based decisions, and coordinating AI activities. The White House has also underscored that agencies using AI must provide improved services while maintaining robust safeguards for civil rights, civil liberties, and privacy. Disclosure allows the public to confirm agencies are adhering to laws, apply technical expertise to refine AI use, assess the risk of biased federal policies, and learn about this evolving field of technology.
How You Can Push for Transparency
One effective way the public can champion these principles is by submitting comments on proposed rules, specifically requesting information on whether and how AI was used in the rulemaking process. Organizations are already taking this step, posing detailed questions such as:
- Was AI used, and if so, how?
- What specific AI product was used, and how was it selected and procured?
- Was the product fine-tuned, and on what data was it trained?
- What prompts or inputs did the agency use, and what outputs did the AI produce?
- How did agency staff use these outputs, and what quality control measures were in place?
- What steps were taken to ensure compliance with data security and privacy?
- Were any external entities involved in developing, modifying, or using AI for the rulemaking?
While the extent to which every AI use case falls under current APA disclosure requirements is still being explored, agencies are likely obligated to provide a reasoned response to comments that raise legal and policy arguments for disclosure.
Understanding how agencies are actually using AI will inform the ongoing discussion about its appropriate and ethical integration into administrative decision-making. Public engagement through comments is a vital strategy in fostering this essential transparency.
Tags: AI, Government, Rulemaking, Transparency, Public Policy, Administrative Law, Disclosure, Technology, Innovation, Accountability