As the Biden administration and congressional Democrats negotiate the infrastructure package, the progressive dream of universal free college seems to recede further into the distance. But far more than the American people might appreciate, much of the Biden’s administration’s higher education agenda may hinge less on negotiations with Congress than on negotiations with itself.

Next week, the Department of Education’s negotiated rulemaking committee will begin to meet virtually. Between now and December, the committee is set to discuss nine issues, including borrower defense to repayment, loan forgiveness, Pell Grant eligibility for prison education programs, and more. Close observers are concerned that, taken together, unilateral Department of Education rulemaking could lay the predicate for a more expansive free-college agenda than Congress would be willing to pass. With these discussions and this concern in mind, AEI’s Conservative Education Reform Network (CERN) commissioned member Michael Brickman, a former advisor to Secretary DeVos on higher education, to produce a report: “Why It’s Time to Engage with the Department of Education’s Negotiated Rulemaking.”

“Negotiated rulemaking” or its abbreviation “neg-reg” is hardly a household word. The process was created in 1982 by an obscure federal agency called the Administrative Conference of the United States to try to make federal rulemaking less “adversarial” by bringing together stakeholders to find compromise based on competing priorities. It was intended to resolve “highly technical standards,” such as the accessibility of lavatories on single-aisle aircraft, and, as Brickman argues, at its best gives “parties with competing interests the opportunity to negotiate and propose a reasonable outcome within a narrowly defined set of policy choices.”

But today in higher education policy, it serves a far more expansive
function. Perhaps eager to relieve itself of its legislative responsibility,
Congress has required the Department of Education to use neg-reg for rulemaking
on student loans and specified what parties it wanted the Department of Education
to bring into the process.

Many of the key higher education stakeholder groups represent special
interest groups or ideologically charged advocates. American taxpayers and
concerned parents have fewer dedicated champions. That’s why, as Brickman
argues, it’s essential for conservatives and moderates to engage with this
process, so that it does not devolve into an ideological echo chamber providing
a regulatory paper trail that effectively launders liberal policy preference
into undisputed “expert” consensus.

Brickman recommends that conservatives and moderates educate themselves on the issues at hand, and then respond directly to the rulemaking notices. They can assert the right to speak during the comment period in meetings, and also request “the addition of underrepresented voices such as taxpayers, employers, and students who have benefited through paths other than those supported by federal student loan subsidies and forgiveness programs.”

As Brickman notes, if conservatives and moderates don’t engage, then the Biden administration will simply “consider only its own wishes” when writing regulations. A major aim of AEI’s CERN is to help inform and equip our members to meaningfully participate in the policymaking process. To that end, if anyone is interested in learning more, please don’t be shy to reach out by e-mailing research assistant Jessica Schurz (Jessica.Schurz@aei.org).

With the first committee meeting around the corner, and so many federal higher education policies hanging in the balance, it’s time for conservatives to engage in the policymaking process.

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