Quality, not Quantity, is Key to Effective Commenting

February 21, 2018



Public participation in federal rulemaking is currently making headlines. Fake comments submitted to the Federal Communication Commission’s (FCC) Net Neutrality rule has caught the attention of lawmakers and the GAO. News articles are flooded with concern that fake comments can wrongly influence regulatory outcomes. The concern about stolen identities is valid but the fear over the impact of fake comments is perhaps overblown.

The Role of Mass Comment Campaigns in Rulemaking

Receiving a large number of public comments is not unusual in federal rulemaking. Political scientists studying public participation have examined public comments over the years. Several federal agencies have received thousands of comments on proposed rules related to organic food standards, tobacco sale, wildlife or power plans.

Advocacy groups often lead such campaigns. Earlier, letters and postcards were used as part of campaigns but now proliferation of web-based applications has made participation easier. People can directly comment through the regulations.gov portal or send emails to government agencies. Organizations such as MoveOn prompt readers to sign petitions in response to proposed rules. Earthjustice has a ‘Take Action’ page which allows people to send form letters to federal agencies and, as long as an individual includes a name and email address, each of these letters is counted as a comment by the federal agency. In addition, when celebrities like John Oliver and Mathew Inman publicize proposed rules, there is often a surge in the number of comments. A proposed plan by Fish and Wildlife on Grizzly Bear Restoration Plan received more than 100,000 comments after Mathew Inman posted about the issue on The Oatmeal. Similarly, FCC’s Net Neutrality comment period in 2014 and 2017 saw an increase in submissions after John Oliver’s show was broadcasted.

How Agencies Deal with Comment Campaigns

The federal agencies, to some extent, appear to be aware of such campaigns. In classifying document subtype, regulations.gov provides the option for searching “mass mail campaign” that includes comments that are duplicates or nearly identical. At least five agencies use this classification - the Environmental Protection Agency (EPA), Centers for Medicare and Medicaid Services, Energy Efficiency and Renewable Energy Office, Office of Federal Contract Compliance Programs, and Occupational Safety and Health Administration. Among these agencies, the EPA has received the most mass comments among all the agencies that classify public comments as “mass mail campaigns”.1 Specifically, between 2012 and 2016, EPA acknowledged 1,244 mass mail campaigns in 32 out of 115 rules published on regulations.gov.2 Twenty four mass campaigns included more than 100,000 comments. Further, the EPA identifies the sponsor of the campaigns by highlighting the organization referred to in the comments. These included Clean Water Action, Earth Justice, and Sierra Club. But mass emails can also be sent by groups such as the Farm Bureau Federation.

Do these Mass Comment Campaigns Matter?

Upon reviewing the guidelines for submitting effective comments, it is clear that a comment is not a vote to measure public opinion. The federal government instead seeks "constructive comments" and encourages the public to "include an explanation and/or analysis of how the alternative might meet the same objective or be more effective." Similarly, EPA clarifies that “one well-supported comment is often more informative to the agency than a thousand form letters.”

Although there is limited empirical research on government’s responsiveness, available literature indicates that quality matters more than quantity. Federal agencies, as explained on regulations.gov, focus more on comments that provide economic or technical analysis than those that offer opinions. However, mass comments may influence political opinion and help create a support base for advocacy groups. This is one of the reasons that advocacy groups submit detailed technical comments in addition to encouraging form letters.

Federal agencies often include a response to comment section in the final rule. In the Clean Water Rule comment, EPA released a compendium of comments as part of the response to the mass mail comments. The agency’s reply clarifies that the government depends on technical inputs and relies on peer-reviewed, scientific literature to draft regulations. The FCC, on the other hand, received unprecedented 4 million comments on the Open Internet (Net Neutrality) rule 2014. In the final rule, FCC only acknowledged that it was “informed by the views of nearly 4 million commenters” but did not respond to specific comments.  An analysis of final rules published by the EPA reveals that the agency does acknowledge mass comments but may not necessarily take actions based on the number. Between 2012 and 2016, 17 of the 23 rules referred to mass mail campaigns received by the public.3

Overall, it seems that the unusually high number of comments may attract attention but its influence on the regulatory outcomes depends on the whether it provides additional evidence to the government on alternative choices.

1 Balla, S., Beck, A., Cubbinson, W., Prasad, A. (2018). Lost in the Flood?: Interest Groups, Agency Rulemaking, and Mass Comment Campaigns. Paper to be presented at the annual meeting of the Midwest Political Science Association in Chicago, IL, April 5-8, 2018.

2 Ibid

3 Ibid