Beth Noveck at NextGov: “In November 2019, Securities and Exchange Commission Chairman Jay Clayton boasted that draft regulations requiring proxy advisors to run their recommendations past the companies they are evaluating before giving that advice to their clients received dozens of letters of support from ordinary Americans. But the letters he cited turned out to be fakes, sent by corporate advocacy groups and signed with the names of people who never saw the comments or who do not exist at all.
When interest groups manufacture the appearance that comments come from the “ordinary public,” it’s known as astroturfing. The practice is the subject of today’s House Committee on Financial Services Subcommittee on Oversight and Investigations hearing, entitled “Fake It till They Make It: How Bad Actors Use Astroturfing to Manipulate Regulators, Disenfranchise Consumers, and Subvert the Rulemaking Process.”
Of course, commissioners who cherry-pick from among the public comments looking for the information to prove themselves right should be called out and it is tempting to use the occasion to embarrass those who do, especially when they are from the other party. But focusing on astroturfing distracts attention away from the more salient and urgent problem: the failure to obtain the best possible evidence by creating effective public participation opportunities in federal rulemaking.
Thousands of federal regulations are enacted every year that touch every aspect of our lives, and under the 1946 Administrative Procedure Act, the public has a right to participate.
Participation in rulemaking advances both the legitimacy and the quality of regulations by enabling agencies—and the congressional committees that oversee them—to obtain information from a wider audience of stakeholders, interest groups, businesses, nonprofits, academics and interested individuals. Participation also provides a check on the rulemaking process, helping to ensure public scrutiny.
But the shift over the last two decades to a digital process, where people submit comments via regulations.gov has made commenting easier yet also inadvertently opened the floodgates to voluminous, duplicative and, yes, even “fake” comments, making it harder for agencies to extract the information needed to inform the rulemaking process.
Although many agencies receive only a handful of comments, some receive voluminous responses, thanks to this ease of digital commenting. In 2017, when the Federal Communications Commission sought to repeal an earlier Obama-era rule requiring internet service providers to observe net neutrality, the agency received 22 million comments in response.