A half-decade ago in the pages of this journal, I suggested that the Bush Administration, the federal administrative agencies, and Congress seriously consider revitalizing participant compensation. Participant compensation is the agency payment of expenses that members of the public incur when they are involved in administrative proceedings. Initiatives in the executive and legislative branches supported my recommendation that both branches revive this valuable mechanism for facilitating citizen participation in agency processes.
Much to my chagrin, the Bush Administration neither introduced legislation which would have specifically authorized participant compensation nor suggested that agencies rely on their implied authority to reimburse parties, as some administrative entities, such as the Consumer Product Safety Commission, had done in the 1970s. Congress evinced little more sympathy toward participant funding, passing no authorizing legislation and adopting gigantic budgets which provided no money for participant compensation.
may yet be vindicated, however. It is no secret among the cognoscenti that new presidential administrations invariably look back to their predecessors for ideas, and in few areas is this maxim more true than administrative law, practice, and procedure. Moreover, the Carter Administration experimented most comprehensively, and most successfully, with participant compensation. The Clinton Administration is the first Democratic Administration in a dozen years, and it has been scrutinizing the efforts of the Carter Administration, albeit cautiously, primarily to learn from Carter's mistakes. Now that President Clinton has reached the mid-point of his term in office and has achieved some of his substantive initiatives, the Clinton Administration may be willing to consider participant funding.
President Clinton has invoked the idea of a new covenant with the American people, a foremost tenet of which is inclusiveness, especially citizens' participation in the operation of their government. Participant reimbursement is one effective mechanism for facilitating the involvement of resource-poor individuals, and previously excluded persons, in administrative decisionmaking which affects them.
The above factors mean that President Clinton, the federal agencies, and Congress could well, and probably should, revitalize participant funding. The most important information that the executive and legislative branches ought to consider in deciding whether to revive participant reimbursement appears below. Moreover, if the Chief Executive, the agencies, and Congress conclude that revitalization is warranted, numerous recommendations for how the government should proceed are offered in the remainder of this essay.
Carl Tobias, Participant Compensation in the Clinton Administration, 27 Conn. L. Rev. 563 (1995)