All this tends to play poorly politically, with naysayers worrying about unelected bureaucrats making important decisions behind closed doors. But in some ways, the greater danger is that the doors will not be closed enough. As Eric Patashnik argues in his book Reforms at Risk, recent reforms to open the regulatory process have mainly benefited lobbyists and special interests, as the people who show up and know what to do during the third phase of public comment for a regulatory act that most people will never know happened are the people who are paid to show up and trained to know what to do.
Thus, the implementation period brings a dangerous asymmetry: The public quiets down, as they think action has been taken, but the lobbyists mount up. As Binyamin Appelbaum reported in The New York Times, some industry groups made the decision to focus their energies on this phase even before the bills had passed. “When the Consumer Bankers Association convened its annual meeting in early June,” he wrote, “there was still plenty of time to lobby Congress. But the group’s president, Richard Hunt, told his board that the group should shift its focus to the rule-making process. The board voted to increase the group’s budget and staff.”