[Live Podcast] Public Input in Agency Rulemaking

When the FCC put forward its proposed repeal of the net neutrality rule, it received 22 million public comments, by far the largest number any agency has ever received in connection with a rulemaking. The overwhelming public reaction was probably a bit surprising to agency staff, regulatory lawyers, lobbyists, and others who work in the wonky world of regulatory policymaking, where getting a hundred or so comments is perceived as a very robust response rate. And the rule vaulted agency rulemaking into the public consciousness in a way that very seldom happens, with TV host John Oliver and others encouraging everyday Americans to file comments on the proposed rule.

Though the increased public awareness of the power of regulatory agencies is undoubtedly a good thing, what exactly is an agency supposed to do with 22 million public comments? Even discounting for fraudulent or computer-generated comments (of which the agency received millions), does the agency have any obligation to consider whether or not members of the public approve of its proposed action? Should it? And if it should, is counting comments an effective way of determining public sentiment? The law provides very few clear answers to these questions, and there’s a major disconnect between the views of the public (who tend to see the public comment process as a vote) and regulators (who view comments as valuable only if they provide technical information). This panel will consider both the legal and policy issues surrounding the question of whether, and how, an agency should take account of public opinion as expressed in comments.

Relevant Reading:

• “Computationally Assisted Regulatory Participation”
• “Leveling the EU Participatory Playing Field: A Legal and Policy Analysis of the Commission’s Public Consultations in Light of the Principle of Political Equality”
• “Lost in the flood?: Agency responsiveness to mass comment campaigns in administrative rulemaking”
• “Making the Administrative State ‘Safe for Democracy'”
• “Public Participation and the Transatlantic Trade and Investment Partnership”
• “Where’s the Spam? Interest Groups and Mass Comment Campaigns in Agency Rulemaking”

Any views expressed by the speakers are those of the speakers in their personal capacities. They do not necessarily reflect the positions of their affiliated organizations. In Mr. Bull’s case, he is speaking exclusively in his personal capacity and not as an employee of the Administrative Conference.