Administrative Braggadocio, by Michael Herz

by Guest Blogger — Tuesday, Jan. 30, 2018

For a democracy to function even a little bit like it should, the public needs to know what the government is up to. A robust press is one mechanism. FOIA is another. But the most obvious is for the government just to tell the public about its projects and plans. Unfortunately, while the government has the best information, it also has heavy incentives to trumpet successes and downplay failures, making itself look good and its opponents bad. When other governments do this, we call it propaganda. When we do it, we call it “open government,” “public education,” or, perhaps with a little hesitancy or distaste, “public relations.”

Modern government is arguably more transparent than ever. The web has made government information far more available and social media has given agencies a remarkable set of tools for communicating with the public. In some respects, this is an unmitigated good, particularly when the government is providing information: how to obtain certain services or file a form, when the Post Office is open, or just raw data.

But most of the time, government communications include editorial content as well. Even before the social media age, agencies worked hard to convince the public that they were doing a good job. But social media has made agency publicity efforts more robust and constant. The highest and best use of social media, it has become clear, is self-promotion. Sometimes there is a vague fig leaf of modesty (“Humbled to be getting the Nobel Prize”). But most people and entities, most of the time, use social media to get attention and credit. Not surprisingly, then, anyone who follows a federal agency on Twitter, Instagram, YouTube, Flickr, or Facebook, reads an agency blog, or visits an agency website, is keenly aware of the agency spin machine.

Many of these efforts are arguably illegal. Congress is skeptical of agency self-promotion. Since 1913 agencies have been prohibited from hiring a “publicity expert.” 5 U.S.C. § 3107. And since 1951 virtually every appropriations measure has contained some version of the following rider: “No part of any appropriation contained in this Act shall be used for publicity or propaganda purposes not authorized by the Congress.” The Government Accountability Office interprets this to prohibit, among other things, agency “puffery or self-aggrandizement.”

Every once in a while an agency gets in trouble under one of these prohibitions, particularly the restriction on propaganda. But the statutory terms (none of which are defined) have been read extraordinarily narrowly. And as far as I know GAO has never concluded that an agency engaged in proscribed self-aggrandizement or puffery.

There has been one striking exception to this tendency. The Federal Election Commission’s social media presence could not be more bare-bones, factual, and tedious. Predictably, it is also largely ignored – few views, fewer subscribers, even fewer likes. Why so ungrandiose? Surely it reflects the fact that the FEC is a perfectly balanced body — 3 Ds and 3 Rs – and (as a result) rarely does anything. So there is little to brag about and anything resembling spin will be vetoed by the other side.

Interestingly, in the Trump era federal agencies have moved in the direction of the FEC. This is not what one would expect given who is at the top. The president himself is setting new records for puffery. Self-aggrandizement may be hard to define, but one knows it when one sees it — as when President Trump took personal credit for the absence of any fatal airplane accidents in 2017. Indeed, the very stable genius’s social media presence is a cascade of inflated self-congratulation.

But the same is not true at the agency level. Agency tweets in the Trump era just are not self-aggrandizing. For example, when Richard Cordray ran the CFPB its twitter feed consisted mainly of tips and suggestions for consumers to make good decisions. But it also trumpeted the agency’s regulatory and enforcement actions. It bragged; it took credit; maybe it self-aggrandized. What’s on the CFPB feed now that OMB Director Mick Mulvaney is the acting director? Only the tips and suggestions. The world looks like a dangerous place – full of unsavory and untrustworthy folks looking to take advantage of you. But the CFPB’s role is to give you tips to avoid them.   The tweets may actually be helpful. What they are not is self-aggrandizing. The agency disappears into the background.

The same is true elsewhere. EPA’s twitter feed has become a series of admonitions about how to protect yourself from environmental threats (threats which, implicitly, will continue or worsen under Scott Pruitt). The NHTSA wants you to drive sober, not text behind the wheel, wear seatbelts, put kids in car seats, keep your tires inflated, get enough sleep, “protect yourself” against odometer fraud, and, oddly, sign a pledge to end human trafficking (this last seems like either a bad pun or a real example of mission creep). The agency is not merely being modest, it disappears. A follower of the twitter feed would not know NHTSA is doing anything other than, well, tweeting.

What, then, are agencies communicating through social media? As always, a text and a subtext. On the surface, the message is descriptive: news about what they are doing or information you can use. But underneath, the message is normative: agencies should stay out of the way; we should focus on regulatory costs and ignore regulatory benefits. “He governs best who governs least” is a superlative, but it is not self-aggrandizing.

That said, going forward we can still expect puffery and self-aggrandizement of two sorts. One will be about how much the agency is undoing. We see this in misleading presidential claims about how many regulations have been eliminated, and perhaps the agencies will follow. The other will be about the impact of those changes. Which raises a nice legal question: is it self-aggrandizement to mislead about how inactive and insignificant you are?

Michael Eric Herz is the Arthur Kaplan Professor of Law at Cardozo Law.

This post is part of a symposium entitled How Agencies Communicate. You can read all the posts here.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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2 thoughts on “Administrative Braggadocio, by Michael Herz

  1. Susan C Morse

    It seems the agencies cannot communicate nothing about their regulatory actions on social media and through other publicity outlets. If they say nothing, they are saying something. If they say boring things, they are also saying something. If they mainly scold and admonish, perhaps they will cause the risk-averse followers of Twitter to take greater precautions, but likely at the expense of risk seekers who pay no attention to Twitter. Surely there is a view that reporting agency regulatory developments in a positive light, like Cordray’s CFPB, is not “puffery or self-aggrandizement.” “Humbled to have promulgated a pretty good regulation, all things considered, to implement that statute Congress just passed.”

  2. Leigh Osofsky

    Both this post and the prior post really expand my notion of what it means for an agency to communicate. When I think of agency communication, I typically think of formal, intended communications. What is being contemplated here includes perhaps unintended implications that follow from communications (or non-communications). It seems to me that this is yet another example of democratization of information. Rather than being fed a story line from a few news channels or formal agency announcements, the flood of communicative channels allows us to draw our own implications from the ways that actors are or are not communicating. The clear upside to the democratization of information in this context is more information. I wonder: What might be the costs, and how might we prepare for them?


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