Public Participation in Rulemaking in the Age of Mass Comments

This article was authored by Daniel E. Small, a 3L at George Washington University Law School. The views expressed below are those of the author and do not represent the views of ACUS or the Federal Government.

Many believe that technology can democratize administrative rulemaking through large-scale public participation. Others are more skeptical, questioning the value of participation as the key metric for regulatory enhancement. Regardless, rapid technological developments in web-based communication have changed how agencies solicit comments, display comment policies, and encourage rulemaking participation. However, agencies currently struggle with mass submitted, duplicative comments copied from interest group webpages or other sources. Although these comments often lack substantive contributions, they allow lay commenters to more easily participate in rulemaking. Therefore, agencies must weigh participation quality against quantity when responding to duplicative comments. Overvaluing quantity risks “electionizing” rulemaking; indeed, agencies are not permitted to make rulemaking decisions based on the number of comments received for and against proposed rules. But overvaluing quality may alienate many commenters.

Numerous articles have suggested means of addressing mass comments. Professor Nina Mendelson formulated a five-factor test for determining whether a value-laden comment submitted multiple times deserves agency attention. Professor Beth Noveck has suggested that agencies allow commenters to “sign onto,” or “endorse,” others’ comments. Professor Cary Coglianese, Heather Kilmartin, and Evan Mendelson have proposed a two-round, interactive comment process in which commenters who filed in the first round would have the opportunity to rebut others’ comments in the second. This would discourage commenters from submitting comments late in the comment period, when agencies often receive more non-unique comments. Additionally, Reeve Bull has suggested that agencies use deliberative, demographically-representative citizen advisory committees to supplement public comment on important policy matters, for which agencies tend to receive greater volumes of duplicative comments.

To some, however, the methods described above have dubious value. Professor Mark Seidenfeld has argued that participatory approaches to rulemaking comments fail because most commenters lack the expertise and fact-finding capabilities necessary to carefully evaluate the merits of different regulatory alternatives. Under this view, increased public participation would neither improve the worth of public comments to regulators nor empower commenters. On the other hand, Professor Noveck has claimed that participatory mechanisms gradually build public capacity to meaningfully contribute to rulemaking. Perhaps Professor Cynthia Farina represents a middle ground; she describes comments conveying “spontaneous” and “group-framed” preferences as low-value but those indicating “informed” and “adapted” (“reason-giving”) preferences as more useful. Ensuring that all well-reasoned comments are publicly accessible may be consistent with this intermediate view.

ACUS has issued several recommendations suggesting ways agencies can improve their comment practices. These proposals may help agencies address mass comments, balance participation with comment quality, and ensure that unique, well-reasoned comments are visible to commenters and regulators.

Recommendation 2011-1, Legal Considerations in e-Rulemaking, recommends agencies utilize comment analysis software to identify duplicative and inappropriate comments. Recommendation 2011-2, Rulemaking Comments, recommends that agencies publish public guidance on how to submit comments that aid the rulemaking process. Recommendation 2011-8, Agency Innovations in e-Rulemaking, recommends that agencies clearly display their comment policies on their websites and that agencies experiment with methods to increase public engagement. Recommendation 2013-5, Social Media in Rulemaking, suggests that agencies consider using social media to supplement the commenting process. ACUS has an ongoing project, Public Engagement in Rulemaking, which is studying public comments and other ways to increase public involvement in rulemaking.

This post is part of the ACUS Intern Blog Series.