[Below are the
Introduction
and the
Conclusion
to this latest FSF
Perspectives
. A PDF version of the complete
Perspectives
, with footnotes, is
here
.]
Introduction
E-Rulemaking – the digitization of the notice-and-comment process – was supposed to revolutionize the way federal agencies conduct business. And in a sense it has, though perhaps not in the ways its champions envisioned. While “the move online has not produced a fundamental shift in the nature of notice-and-comment rulemaking,” a small subset of politically-volatile proceedings has bucked this trend. In these proceedings, advocacy groups have harnessed the ease of online submission to create the agency equivalent of get-out-the-vote drives, pushing supporters to file thousands of nearly identical form comments in the hope of effecting change. This movement peaked during the Federal Communications Commission’s 2017
Restoring Internet Freedom Order
(RIFO) proceeding, which attracted a record-breaking twenty-two-million-plus comments and has spawned satellite litigation about fake names, foreign influence, and the agency’s management of these submissions.
This “mass comments” dynamic and the controversies regarding the record in the RIFO proceeding misunderstands the purpose of the comment process. From its inception, the administrative process was designed to insulate agency deliberations from politics, at least in part. Although the comment function serves a limited democratic legitimization function, its primary purpose is to provide agencies with the information necessary to improve administrative decisionmaking. Administrative law has long placed the agency’s focus – rightly – on the
quality
of agency comments, not their
quantity
or the
identity
of the commenters. Mass submissions and fake comments have little bearing on the legality of the
Restoring Internet Freedom Order
– but they do showcase some unintended negative consequences of the shift to e-rulemaking.
Conclusion
The rise of administrative law was driven, in part, by the notion that some policy questions are too technical and too important to be left to politics. For some early architects of the administrative state, politics was a dirty, haphazard process that got in the way of intelligent, rational policymaking. One of the chief appeals of the agency structure was its (partial) insulation from politics, freeing agency decisionmakers to analyze important policy questions dispassionately without undue influence from a sometimes-fickle populace.
The transformation of the rulemaking comment process into a political battleground akin to those accompanying congressional votes undermines this technocratic image. To an extent, perhaps, this politicization of rulemaking is an inevitable result of Congress’s tendency to delegate important policy decisions to agencies rather than deciding them itself via legislation. And in this sense, agencies should (and likely must) make room for interested members of the public to register their views via the comment process. But they should be slow to embrace the political limelight provided by mass comment drives. They can do this by clarifying that informative comments filed by experts are more likely to garner the agency’s attention than short, form-like expressions of one’s opinion. Otherwise, the mass comment phenomenon has the potential to undermine the benefits of e-rulemaking and eviscerate the insulation from politics that made agencies so attractive as an alternative source of policy analysis and decisionmaking.
*
Daniel Lyons is a Member of the Free State Foundation’s Board of Academic Advisors. The Free State Foundation is an independent
,
nonpartisan free market-oriented think tank located in Rockville, Maryland.
Read the complete
Perspectives,
with footnotes,
here
.
