Bringing The Public Back In: Can the Comment Process be Fixed?

Remarks of Commissioner Jessica Rosenworcel, US Federal Communications Commission: “…But what we are facing now does not reflect what has come before.  Because it is apparent the civic infrastructure we have for accepting public comment in the rulemaking process is not built for the digital age.  As the Administrative Conference of the United States acknowledges, while the basic framework for rulemaking from 1946 has stayed the same, “the technological landscape has evolved dramatically.”

Let’s call that an understatement.  Though this problem may seem small in the scheme of things, the impact is big.  Administrative decisions made in Washington affect so much of our day-to-day life.  They involve everything from internet openness to retirement planning to the availability of loans and the energy sources that power our homes and businesses.  So much of the decision making that affects our future takes place in the administrative state.

The American public deserves a fair shot at participating in these decisions.  Expert agencies are duty bound to hear from everyone, not just those who can afford to pay for expert lawyers and lobbyists.  The framework from the Administrative Procedure Act is designed to serve the public—by seeking their input—but increasingly they are getting shut out.  Our agency internet systems are ill-equipped to handle the mass automation and fraud that already is corrupting channels for public comment.  It’s only going to get worse.  The mechanization and weaponization of the comment-filing process has only just begun.

We need to something about it.  Because ensuring the public has a say in what happens in Washington matters.  Because trust in public institutions matters.  A few months ago Edelman released its annual Trust Barometer and reported than only a third of Americans trust the government—a 14 percentage point decline from last year.

Fixing that decline is worth the effort.  We can start with finding ways that give all Americans—no matter who they are or where they live—a fighting chance at making Washington listen to what they think.

We can’t give in to the easy cynicism that results when our public channels are flooded with comments from dead people, stolen identities, batches of bogus filings, and commentary that originated from Russian e-mail addresses.  We can’t let this deluge of fake filings further delegitimize Washington decisions and erode public trust.

No one said digital age democracy was going to be easy.  But we’ve got to brace ourselves and strengthen our civic infrastructure to withstand what is underway.  This is true at regulatory agencies—and across our political landscape.  Because if you look for them you will find uneasy parallels between the flood of fake comments in regulatory proceedings and the barrage of posts on social media that was part of a conspicuous campaign to influence our last election.  There is a concerted effort to exploit our openness.  It deserves a concerted response….(More)”