Where's the Spam? Mass Comment Campaigns in Agency Rulemaking

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By: Steven J. Balla, Alexander R. Beck, William C. Cubbison, & Aryamala Prasad
April 02, 2018

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Abstract

This article examines the occurrence and nature of mass comment campaigns—identical and near-duplicate comments submitted by like-minded organizations and individuals—in rulemaking at the Environmental Protection Agency (EPA) between 2012 and 2016. The analysis demonstrates that campaigns occur across issue areas under EPA jurisdiction, particularly in the context of complex, economically significant actions. Broad societal constituencies—such as environmentalists—are more active in sponsoring campaigns than specific interests negatively affected by stringent regulations. Industry-led campaigns are regularly divided along sectoral lines, with industries anticipating benefits arguing in favor of stringent regulations and industries forecast to bear the brunt of such actions sponsoring campaigns in opposition to EPA proposals. It is common for campaigns to contain policy-relevant information as a means of bolstering justifications for political sentiments. These findings in some respects confirm and in other respects challenge existing understandings of an increasingly salient form of participation in administrative rulemaking.

Introduction

In 2014, the Natural Resources Defense Council (NRDC) coordinated an online campaign that generated more than 100,000 comments on a proposed EPA rule defining federal jurisdiction over water bodies such a streams and wetlands.[1] These emails urged the EPA to finalize stringent standards in short order, as a means of protecting headwater sources that are connected to downstream bodies already covered under the Clean Water Act. A year later, such standards were promulgated with great fanfare, touted by President Obama as an “historic commitment”[2] to environmental protection.[3]

In contemporary American politics, information and communication technologies have increased the ease for organizations and individuals with shared interests of participating in policymaking in mass numbers. Interest groups such as the NRDC cultivate and maintain often large lists of members, with whom they communicate regularly through email and other channels.[4] Such communications frequently direct recipients to the websites of government organizations, encouraging members to make their common preferences known to officials making salient policy decisions.

As illustrated by the clean water email campaign, administrative rulemaking through the notice and comment process has been no exception to these developments. Proposed rules are readily accessible via agency websites, the digital version of the Federal Register (the daily publication of the executive branch), and regulations.gov (a government-wide repository of rulemaking documents). Advocates for health, safety, and the environment, as well as representatives of regulated entities, routinely submit comments in response to proposed rules, sometimes in large numbers.

One particular form that such participation takes is the coordination of mass comment campaigns. In mass comment campaigns, identical and near-duplicate comments are submitted by like-minded organizations and individuals. Ever since the advent of electronic rulemaking, the routinization of mass commenting has been anticipated by digital democrats (celebrating the “throwing open” of the doors of government) as well as by more skeptical participants and observers (warning of the negative consequences of “notice and spam”).[5],[6]

Despite such clear-cut anticipation, basic uncertainties about the occurrence and nature of mass comment campaigns remain, two decades into the era of electronic rulemaking. Under what conditions do mass comment campaigns occur? What types of organizations coordinate mass comment campaigns? What kinds of information do mass comment campaigns communicate to agency officials?

This article addresses these questions in the context of rulemaking at the Environmental Protection Agency between 2012 and 2016. To examine the conditions under which mass comment campaigns occur, information is assembled for all significant EPA actions taken during this period, some of which were characterized by campaigns and some of which were not. Information regarding sponsoring organizations is collected as a means of investigating the coordination of mass comment campaigns. Finally, the content of mass comment campaigns is evaluated in order to assess the information communicated by campaigns to agency officials.

Through the analysis of these data, the article both confirms and qualifies existing knowledge regarding mass comment campaigns. In the former regard, the analysis demonstrates that campaigns occur across issue areas under EPA jurisdiction, particularly in the context of complex, economically significant actions. In addition, broad societal constituencies—such as environmentalists and advocates for workers’ rights—are more active in sponsoring campaigns than specific interests (e.g., industries) negatively impacted by stringent regulations. In the latter regard, industry-led campaigns are regularly divided along sectoral lines, with industries anticipating benefits arguing in favor of stringent regulations and industries forecast to bear the brunt of such actions sponsoring campaigns in opposition to EPA proposals. Furthermore, it is common for campaigns to contain policy-relevant information as a means of bolstering justifications for value-laden, political sentiments. In the end, the article presents an empirical account of mass comment campaigns that is broader and more nuanced than previous treatments of what is a common and rather diverse phenomenon in administrative rulemaking.

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[1]    This mass comment campaign can be accessed at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-0092.

[2]    Hopkinson, Jenny. 2015. “Obama’s Water War.” Politico, May 27.

[3]    The fanfare turned out to be short lived, as the Waters of the United States rule was stayed in court and targeted by the Trump administration for revision or removal. See Cama, Timothy, 2017, “Supreme Court Won’t Pause Obama Water Rule Case.” The Hill, April 3.

[4]    Karpf, David. 2010. “Online Political Mobilization from the Advocacy Group’s Perspective: Looking Beyond Clicktivism.” Policy & Internet, Vol. 2, No. 4, pp. 7-41.

[5]    Balla, Steven J., and Benjamin M. Daniels. 2007. “Information Technology and Public Commenting on Agency Regulations.” Regulation & Governance, Vol. 1, No. 1, pp. 46-67.

[6]    Mass comment campaigns occurred prior to the era of electronic rulemaking, via postcards, letters, and other traditional forms of communication (Karpf 2010). The expectation has been that information and communication technologies serve to increase the frequency and size of mass comment campaigns (Balla and Daniels 2007).