Nou: What it is Like for An Agency to Sort Through Public Comments
Today is the end of the Federal Communications Commission’s comment period for net neutrality rules. So large was the response (thanks, John Oliver) that the FCC’s servers had trouble handling more than a million submissions; the deadline had already been extended once. Traffic like this isn’t uncommon with high-profile proposed regulations, and the government is generally required to let the public’s voice be heard. In 2003, a media-ownership rule elicited over a million responses, too. Other agencies recently received over 100,000 comments though the government’s electronic rulemaking portal alone. What is it like to pore through all those responses?
Seeing the rulemaking process up close, I realized: It’s like sifting for gold. By law and executive order, agencies need lots of information to survive review, whether it’s about the potential benefits and costs of a rule, or the likely impacts on particular interests like the environment, states, or small businesses. Some comments are genuinely useful in this respect. Practices among agencies vary, but in general, each comment is read and coded by teams of agency staff members or contractors. Because so many submissions now arrive online, they can be sorted and searched to look for similar themes before they are handed over to the rule-writers. Perhaps the comments supply the most recent study or credible sources of empirical data. Maybe they point out novel legal issues in a careful and detailed way. Sometimes they propose new ideas and regulatory alternatives. You quickly spot nuggets like these among the mass of submissions. In law school, they often teach you that public comments don’t matter because the agency has already decided what it’s going to do. That is simply not true.
At the same time, you know that most commenters have an agenda. Reams of research consistently reveal that the rulemaking process is dominated by regulated entities and well-funded interest groups with savvy lawyers. So one must learn to read the comments critically. Has the study been peer-reviewed? Are the assumptions transparent? Other comments also need sifting. Take the form letters with spoon-fed slogans. When smoking restrictions in airplanes were being considered, for example, the Smoker’s Rights Alliance created postcards, urging people to send them in if they agreed that “federal and private airline smoking bans have gone too far.” Sure, they’re counted, but these kinds of comments often amount to little more than clap-o-meters. No doubt they are democracy at work, which is a good thing. But agencies can’t promulgate regulations by reference to how loudly the crowd applauds. They need evidence and facts.