Since notice-and-comment rulemaking moved on-line, insiders have been concerned by, and spoken out against, a tendency to see public comment as a kind of referendum. While there is disagreement at the margin about whether a strong consensus among commenters as to a bottom line ought to influence an agency decision, the traditional, and still “official,” version of notice and comment looks nothing like a referendum. The agency is gathering information and hearing arguments to which it will apply its expertise to reach a sound conclusion regardless of how many commenters were for or against. That is what “reasoned decisionmaking” is.
Lay commenters tend to have different ideas. Everything else they do on-line involves the expression of a kind of vote – a like, a thumbs-up, a star. Democracy involves voting; isn’t the point of public comment to make rulemaking more democratic? Observers who should know better often fall into the same error.
On the it’s-not-a-vote conception, not only is an agency free to ignore the weight of public sentiment expressed in the comments, it would not be doing its job if it simply acceded to the majority view among commenters. Accordingly, agencies rarely place any weight on the overall direction of comments, even if it is strongly in the agency’s favor. Officials are only human, and they sometimes mention that they have massive support in the comments. But such a statement is more common from political appointees than career staff, and more likely to be found in popular fora than in the preamble, let alone a brief. In general, when agencies discuss “support” for a rule, they are referring to the science, or the statute, or the data, or the analysis – not a tally of comments.
But I recently came across a counter-example. Apologies, it’s not a brand new rule, just brand new to me. But it’s not that old, having been issued last December.
In 2018, the Social Security Administration issued a proposed rule that would eliminate a claimant’s right to opt out of a video teleconference (VTC) and insist on an in-person hearing. Under the proposal, the agency would make a binding determination as to whether a hearing would be in-person, by video, or, rarely, by telephone. The key justification for the new policy was to reduce the backlog of pending cases by allowing the agency to shift cases from overburdened offices to those with fewer cases. However, when push came to shove, the final rule retained the option for a party to a hearing to reject a video hearing.
What is striking is the agency’s explanation for abandoning the proposal (emphases added):
The changes that we proposed and are now adopting will provide us with the flexibility we need to address service challenges by allowing us to balance our hearing workloads in a way that we expect will reduce overall wait and processing times across the country, and the processing time disparities among offices. However, in response to the overwhelming preference expressed by public commenters in response to the NPRM, we are retaining the existing option for a party to a hearing to opt out of appearing by VTC at the ALJ hearing level. . . .
We acknowledge the commenters’ near-universal preference for our current policy, which allows a party to a hearing before an ALJ to opt out of appearing by VTC. In response to this expressed preference, in the final rule we retained the regulatory provision allowing a party to a hearing before an ALJ to opt out of appearing by VTC . . . .
The preamble nonetheless endorsed the use of video hearings, noting, as had the proposal, the efficiency gains of being able to shift cases from busier to less busy hearing offices. “We maintain our position, which we stated in the NPRM, that an individual’s decision to decline appearing by VTC can adversely affect the efficiency of our hearing process, and may result in a longer wait time for the individual’s in-person hearing.” The agency anticipated continued use of video hearings and saw only benefits to doing so.
It is striking is that the agency clearly still thought its proposal made sense. The comments did not change its mind, only its action. It was now pursuing a path it considered mistaken. And it was doing so because it was yielding to commentator preference, aggregated through that famously imperfect preference-aggregator, notice and comment.
Suppose, as seems unlikely, the rule was challenged as arbitrary and capricious. The agency gets points for candor; it does not claim that it was abandoning the proposal in order, for example, to enforce the Voting Rights Act. The reason it gave looks like the actual reason for its action. A reviewing court then has to ask whether, in simply throwing up its hands in light of overwhelming opposition, the agency acted on the basis of “the relevant factors.” Is it “reasoned decisionmaking” for an agency to say “all right, all right, fine – you think it’s such a bad idea we won’t do it, but you’re making a big mistake”?
In most circumstances, the answer is surely no. The relevant factors do not include head-counting. The decision is the agency’s. And to the extent public preference matters, it is a serious question whether the relevant process for expressing that opinion is notice and comment rather than presidential elections (though both are just terrible ways of actually gauging public sentiment on a particular issue).
Now, one could argue that for this agency in this setting, yielding to commenter sentiment is more legitimate than it would be in the regulatory setting. The Social Security Administration is not a regulatory agency. Because it has what might be called a customer-service mission, one measure of its success is the satisfaction of the individuals who come in contact with it. But the agency did not say that. Moreover, given its view of the merits of VTC hearings and the fact that they will significantly cut waiting times, it would seem that in fact overall customer satisfaction would be higher had it stuck to its guns.
Striking though it is, this is just one preamble. It is not a trend. But it does help make the discussions about the role of public comments, which will not disappear, less abstract. If people know of other examples, it would be great to learn of them. For now, this is the only final rule preamble of which I am aware in which an agency so frankly and completely abandons what it is sure is the right path in light of the simple fact of opposition by commenters.
Michael Herz is the Arthur Kaplan Professor of Law at the Benjamin N. Cardozo School of Law