Over the past two days, I’ve posted a mini-symposium of separate statements filed by ACUS members in response to Recommendation 2021-1, Managing Mass, Computer-Generated, and Falsely Attributed Comments. The third and final contribution comes from Senior Fellow Richard J. Pierce, Jr. (GW Law) (it is an abbreviated version of a statement that is on the ACUS website):

These three phenomena and the many problems that they create have only one source—the widespread but mistaken public belief that notice and comment rulemaking can and should be considered a plebiscite in which the number of comments filed for or against a proposed rule is an accurate measure of public opinion that should influence the agency’s decision whether to adopt the proposed rule. I believe that ACUS can and should assist agencies in explaining to the public why the notice and comment process is not, and cannot be, a plebiscite, and why the number of comments filed in support of, or in opposition to, a proposed rule should not, and cannot, be a factor in an agency’s decision making process.

The Notice and Comment Process Allows Agencies to Issue Rules that Are Based on Evidence

The notice and comment process is an extraordinarily valuable tool that allows agencies to issue rules that are based on evidence. It begins with the issuance of a notice of proposed rulemaking in which an agency describes a problem and proposes one or more ways in which the agency can address the problem by issuing a rule.

The agency then solicits comments from interested members of the public. The comments that assist the agency in evaluating its proposed rule are rich in data and analysis. Some support the agency’s views with additional evidence, while others purport to undermine the evidentiary basis for the proposed rule. The agency then makes a decision whether to adopt the proposed rule or some variant of the proposed rule in light of its evaluation of all of the evidence in the record, including both the studies that the agency relied on in its notice and the data and analysis in the comments submitted in response to the notice. Courts require agencies to address all of the issues that were raised in all well-supported substantive comments and to explain adequately why the agency issued, or declined to issue, the rule it proposed or some variation of that rule in light of all of the evidence the agency had before it. If the agency fails to fulfill that duty, the court rejects the rule as arbitrary and capricious.

ACUS has long supported efforts to assist the intended beneficiaries of rules in their efforts to overcome the obstacles to their ability to participate effectively in rulemakings. ACUS should continue to help members of the public file comments that assist an agency in crafting a rule that addresses a problem effectively.

Mass Comments Are Not Helpful to Agency Decision Making and Create Major Problems

Sometimes the companies and advocacy organizations that support or oppose a proposed rule organize campaigns in which they induce members of the public to file purely conclusory comments in which they merely state their support for or opposition to a proposed rule. The proponents or opponents then argue that the large number of such comments prove that there is strong public support for the position taken in those comments. Comments of that type have no value in an agency’s decision-making process. Every scholar who has studied the issue has concluded that the number of comments filed for or against a proposed rule is not, and cannot be, a reliable measure of the public’s views with respect to the proposed rule.

Mass comment campaigns create major problems in the notice and comment process. Many of those problems were evident in the 2017 net neutrality rulemaking. The New York Attorney General documented the results of the well-orchestrated mass comment campaign in that rulemaking in the report that she issued on May 6, 2021. She labeled as “fake” 18 million of the 22 million comments that were filed in the docket. The number of “fake” comments filed in support of net neutrality were approximately equal to the number of “fake” comments filed by the opponents of net neutrality. One college student filed 7.7 million comments in support of net neutrality, while ISPs paid consulting firms 8.2 million dollars to generate comments against net neutrality.

Two things are easy to predict if the public continues to believe that the number of comments for or against a proposed rule is an important factor in an agency’s decision-making process. First, the next net neutrality rulemaking will elicit even more millions of comments as the warring parties on both sides escalate their efforts to maximize the “vote” on each side of the issue. Second, the firms that have a lot of money at stake in other rulemakings will begin to replicate the behavior of the firms that are on each side of the net neutrality debate. The results will be massive, unmanageable dockets in which the “noise” created by the mass comments will make it increasingly difficult for agencies and reviewing courts to focus their attention on the substantive comments that provide the evidence that should be the basis for the agency’s decision.   

ACUS Should Initiate Another Project to Address Mass Comments in Rulemakings

I think that ACUS should initiate a new project in which it decides whether to discourage mass comments, computer-generated comments and fraudulent comments and, if so, how best to accomplish that. I believe that ACUS can and should discourage these practices by, for instance, encouraging agencies to assist in educating the public about the types of comments that can assist agencies in making evidence-based decisions and the types of comments that are not helpful to agencies and that instead create a variety of problems in managing the notice and comment process.

This post is part of the Administrative Conference Update series, which highlights new and continuing projects, upcoming committee meetings, proposed and recently adopted recommendations, and other news about the Administrative Conference of the United States. The series is further explained here, and all posts in the series can be found here.