This post is part of a symposium entitled How Agencies Communicate. You can read all the posts here.
How Agencies Should Communicate During Notice-and-Comment Rulemaking
As Elizabeth Porter and Kathryn Watts noted in their contribution to this symposium on how agencies communicate (as well as Michael Herz in his contribution), federal agencies have begun to utilize social media and other channels to explain and promote their preferred regulatory outcomes. Sometimes such communications take place during the public comment period on a proposed rule. Porter and Watts argue that “visual rulemaking” has the potential to increase transparency, public participation, and thus democratic accountability in the rulemaking process, but that it also risks introducing distorting, anti-democratic effects.
Perhaps to address these concerns of undue agency influence during the public participation stage of rulemaking, the Portman-Heitkamp Regulatory Accountability Act, if enacted, would amend the Administrative Procedure Act to prohibit certain advocacy activities by the agency, any individuals speaking in an official capacity on behalf of the agency, and any person who receives federal funding from the agency (from using that federal funding in such communications) after the notice of proposed rulemaking. In particular, it would prohibit those actors from engaging in certain communications during the comment period “through written, oral, electronic, or other means, to the public with respect to the proposed rule.”
Prohibited communications would include any that
- “directly advocates, in support of or against the proposed rule, for the submission of in-formation that will form part of the record for the proposed rule”;
- “appeals to the public, or solicits a third party, to undertake advocacy in support of or against the proposed rule”; or
- “is directly or indirectly for the purpose of publicity or propaganda within the United States in a manner that Congress has not authorized.”
Importantly, the legislation would exempt “a communication that requests comments on, or provides information regarding, a proposed rule in an impartial manner.” Similarly, as quoted above, this advocacy restriction on persons receiving federal funding applies only to the use of that federal funding for such communication activities, not to the use of other funding to engage in such communications during the public comment period.
Last year in The Regulatory Review, Daniel Walters criticized this provision of the Regulatory Accountability Act, arguing that it would result in “proposed rules going undefended from attack from increasingly sophisticated ‘propaganda’ campaigns initiated by certain limited segments of the general public.” Here’s a snippet from his critical review:
The communications provisions in the Regulatory Accountability Act would foreclose even that kind of careful, well-identified public engagement via social media. Under the terms of the bill, it would not matter whether EPA honestly identified itself in communications with the public. Framed as it is, the provisions seem to envision a world where agencies engaged in rulemaking act more like courts than policymakers—that is, as passive observers and neutral arbiters. Perhaps in certain contexts this would make sense, given the bill’s more general push to reinvigorate the Administrative Procedure Act’s trial-like formal rulemaking procedures. But, in fact, the provisions would apply even when agencies engage in ordinary notice-and-comment rulemaking, which has long been praised precisely because of the opportunity it affords agencies to interface freely with the public.
Walters’ take is thoughtful and worth careful consideration, but I think these fears are misplaced. The agency gets the first word in its notice of proposed rulemaking and the final word in its final rule (subject to judicial review or congressional override). At those times, it can advocate its preferred policy position aggressively and creatively through both traditional and social media. The agency can and should combat “increasingly sophisticated ‘propaganda’ campaigns” with facts, data, logic, and policy justifications in its final rule.
But the public comment period is—as the term suggests—for the public, not the agency, to provide its input on the proposed rule. To be sure, that does not mean the agency must remain silent during the comment period. The Regulatory Accountability Act contemplates that the agency can (and, in my view, should) engage in any “communication that requests comments on, or provides information regarding, a proposed rule in an impartial manner.” The important point is that the public comment is for the public to advocate, criticize, and praise and for the agency to listen with care and an open mind.
Walters is surely right that agencies engaged in notice-and-comment rulemaking are not judges. But they are also not elected policymakers. Because agencies are policy implementers that have democratic deficits, it is all the more important that they strive to be receptive, and strive to appear to be receptive, to public input. It seems reasonable, indeed prudent, for federal agencies to cease public advocacy for the limited period of time when they are soliciting public input.
I’ll close with perhaps an interesting wrinkle. As I explore in greater detail in an essay published last year in the Administrative Law Review, the various provisions of the Regulatory Accountability Act would apply generally to both executive and so-called independent agencies. But would there be a reason here for treating differently multi-member commissions, such as the Equal Employment Opportunity Commission or the Federal Communications Commission? Perhaps those independent agencies should have more flexibility to engage in advocacy during the public comment process. After all, the commissions consist of members from both political parties, and it is not unusual for the commissioners to engage in extensive debate among the commissioners during their regulatory activities. It is not unusual for some members to dissent from the agency’s final action.
Or perhaps these distinctions have no meaningful difference in the context of agency advocacy during the public comment period. Although independent commissions often appear more like a legislative body in their public deliberations, they are still not elected. Indeed, they are designed to be further removed from political accountability through some insulation from presidential oversight and removal. Even in the independent-commission context, it seems prudent for the commissioners to save their advocacy for the pre- and post-comment periods.