In the Midnight Hour: Participatory Opportunities in Regulatory Policymaking During Presidential Transitions

Abstract

We examine opportunities for stakeholder participation in regulatory policymaking in the U.S. during the midnight period, the 3 months between the presidential election in November and the inauguration of the winning candidate the following January. During partisan presidential transitions, do agencies—in a sprint to the regulatory finish line—limit stakeholder participation? We develop a novel typology of midnight regulations and construct an original data set of nearly 1000 rules developed during several presidential administrations. Our analysis demonstrates that, contrary to conventional wisdom, midnight regulations do not exhibit a deficiency in participatory opportunities. In fact, rules proposed early in presidential terms that are promulgated during midnight periods are characterized by relatively expansive opportunities for participation. Normatively, the robustness of opportunities for participation during presidential transitions suggests that midnight regulations do not suffer from a lack of democratic legitimacy, at least with respect to inviting stakeholder input.