Democracy, Rulemaking, and Outpourings of Comments

Nina Mendelson

Dec. 20, 2021

This commentary was originally published by The Regulatory Review. Reprinted with permission.

Ten years ago, I wrote an essay referring, in now quaint terms, to the “torrents of E-Mail” arriving on regulatory agency doorsteps, including several rulemakings that drew over 10,000 public comments. I have since argued that agencies needed to take these expressions of public views and preferences more seriously.

Over the last ten years, the volume of rulemaking comments has only grown. In 2021, the Government Accountability Office reported on the many millions of public comments submitted to rulemaking agencies between 2013 and 2017. The 2017 Federal Communications Commission’s net neutrality rulemaking generated over 20 million public comments, and over 4 million comments were submitted in the Environmental Protection Agency’s 2014 Clean Power Plan rulemaking.

These intermittent tidal waves of comments evidence the public’s hunger to participate in government. They also represent a serious management challenge for agencies, one compounded by reports of comments in certain high profile rulemakings attributed to people who did not submit them or to nonexistent people—not to mention comments submitted by bots. Without question, agencies must filter false and bot comments from their dockets and act to deter them.

Some have responded, however, with a broadside attack on “mass” comments, criticizing individual comments as low in value, advancing the red herring that rulemaking is not a plebiscite, and concluding that the solution is to discourage even genuine individual comments. That approach would go too far. No one argues that rulemaking could be a plebiscite. Meanwhile, individual comments can importantly inform agency policy choices and make government more democratic.

Comments from individuals can be informational, supplying on-the-ground experiences, data, or arguments relevant to an agency’s decision. All agree that these submissions are valuable. The critique of individual comments is aimed at expressions of preference. But views and preferences, including those expressed by individuals, are very frequently relevant to agency decisions.

Indeed, the text of the Administrative Procedure Act expressly recognizes this by entitling “interested persons” to submit “written data, views, or arguments.” Although the expertise and technical nature of many regulatory decisions is a partial source of agency legitimacy—and some decisions can be wholly technical—Americans are long past thinking of agencies as technocratic “transmission belts” for legislative policy decisions. Agencies use rulemaking again and again to make policy decisions that, by statute, extend far beyond technical matters and include value-laden issues.

Consider the following typical examples, some of which I have described elsewhere. All raise issues of value and policy, and individual comments expressing views are unquestionably relevant to them.

  • The implications of the U.S. Department of Defense’s sexual assault prevention and response program’s particulars for sexual assault victim dignity;
  • The choice among potential public resource uses, as with public lands, where the Bureau of Land Management must by regulation balance recreation and “scenic, scientific and historical values” with resource extraction uses, including timbering and mining;
  • The importance of nearby accessible bathrooms to the dignity of wheelchair users, at issue in a 2010 Americans with Disabilities Act regulation; and
  • Public resistance to a possible mandate as unduly paternalistic, burdensome, or exclusionary, such as a vaccine passport requirement or an ignition interlock on automobiles—an issue Justice Rehnquist identified in his dissent in Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Company, where he linked policy values to presidential elections but also underscored their relevance to rulemaking.

Or take another example involving matters of environmental justice and the quality of life. A 2020 rule implementing the National Environmental Policy Act removed the requirement that an agency assess a proposed action’s cumulative impacts in its environmental impact analysis. This decision will especially impact low-income communities and communities of color, including communities in Southwest Detroit, where multiple polluting sources adjoin residential neighborhoods. Whether to require cumulative impacts analysis is not a technical issue but a policy decision about whether community quality of life concerns are important enough to justify lengthier environmental analyses.

Moreover, a commenter’s identity, where disclosed, can provide important context to the decision-making agency. That a person commenting on an Americans with Disabilities Act regulation uses a prosthetic leg surely should matter; the same for a person commenting on air quality rules who lives in a community in which multiple industrial sources are located.

Like all comments, individual comments are not free from flaws, even when they are genuine. Comments can be poorly informed or worse. I once located an accidentally uploaded credit card statement in a docket on health insurance regulation.

But typically, individual comments are far more than yes or no votes; they are supported by detailed reasons. That a comment uses language suggested by groups should not be a reason to dismiss it; well-funded groups and companies spend heavily to have their comments professionally drafted. The key point is that the comment communicates the individual’s views.

When relevant and genuine, these comments enhance the agency’s decision-making process and make it more democratic in several respects. First, they support the democratic responsiveness of the agency. Presidential and congressional oversight are critical, of course, but they have their limits as a means of conveying public views about a particular rulemaking proposal. Candidates will not anticipate some issues at the time of an election. Meanwhile, relatively few regulatory issues are even salient in the typical public discourse around a presidential election, let alone a congressional election, and candidate choices are limited. Information gathering by elected officials may be ad hoc or even haphazard. By contrast, the public comment process represents a chance for individuals and communities to express views specific to a particular policy decision.

Second, a public comment process may make the comment process more inclusive and representative overall, compared with a process too long dominated by regulated entities and well-funded industry groups. The comment process provides a chance for individuals—particularly those who are underrepresented because of their race, ethnicity, gender identity, resources, or other reasons—to participate actively in governance. Participation not only supports agencies but also more broadly fosters civic education and engagement.

Finally, comments in an agency proceeding can inform not only agency decision-makers but also elected officials who may not otherwise have systematic access to public views about a particular issue. A better understanding of public opinion can directly inform congressional and executive decision-making, as well as facilitate agency oversight.

But how should agencies handle comments—in whatever volume—from individuals, particularly when those comments mainly focus on views, rather than data?  No commentator suggests that rulemaking can function as a plebiscite. Nor could it, since by statute agencies must consider numerous factors, not solely public preferences. And even if comments presenting exclusively views could be identified and distinguished from those presenting only data or analysis—a task that is probably impossible—agencies cannot legally refuse to consider comments expressing views.

Instead, agencies must continue to communicate openly about the comments that will be most relevant and helpful in a rulemaking.

And agencies must consider all relevant comments. A large volume of individual comments dominated by views or preferences might tip an agency off to unnoticed or under-communicated perspectives or important pockets of public resistance. A large volume of comments might also reveal public misunderstanding or widespread misinformation. In response, an agency might pause and engage these viewpoints, whether by outreach to particular communities or other measures.

An agency might, for example, usefully respond to misinformed comments with public education, as the Clinton Administration Department of Transportation did in a rulemaking on airbag on-off switches. Individuals wrote with largely unfounded worries about airbag dangers and expressed their wishes—on personal liberty grounds—to deactivate freely otherwise required airbags. Rather than authorizing widespread deactivation, the agency convened focus groups and concluded that a public information campaign addressing misconceptions would improve public understanding and better ensure safety. In other words, the agency might determine in a particular case that certain public views, including those expressed by large numbers of individuals, should yield to other factors.

But an agency should acknowledge and answer such comments, even briefly. The Department of Defense’s response to comments on sexual assault prevention and the Federal Communications Commission’s response in both recent net neutrality rulemakings are reasonable recent examples. An answer will convey the important message that individuals expressing their views to their government have been heard.

The door is now open to large volumes of comments. It cannot be closed, practically or legally.

It may take more time before we realize the democratic potential of public participation in rulemaking. But instead of seeking to deter individual comments, we should focus on the management challenges of ensuring comment integrity and how agencies inform and communicate with the public regarding public comments.

This essay is part of a six-part series entitled Mass Comments in Administrative Rulemaking.

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