Future Tense

The Online Comment Period Is a Fraudulent Cesspool

It’s time we look for other ways to involve average citizens in policymaking.

Many comment bubbles appear on the left against a blue background. Fewer bubbles appear on the right against a turquoise one.
Photo illustration by Slate

The net neutrality debate was heated, but the temperature was raised artificially. A recent Wall Street Journal investigation found thousands of fraudulent online comments submitted to the Federal Communications Commission regarding the rollback of Obama-era net neutrality rules. Comments came from deceased people, fake emails, and nonexistent physical addresses. Perhaps most concerning, automated systems submitted comments in the names of people who didn’t authorize them, many of whom didn’t agree with the positions submitted on their behalf, attracting lawsuits and investigations from state attorneys general. While net neutrality dominated the media spotlight, fake comments also quietly piled up at the Department of Labor and the Federal Energy Regulatory Commission, as the Journal detailed.

Online comment periods are the primary means for public participation in policymaking—the only real chance many of us have to share our opinions with the government. But they are also subject to manipulation (and alleged manipulation) that undermines their credibility and utility, while relentless and repetitive comments from organized interest groups drown out broad perspectives. It’s time we look for other ways to involve the public in policymaking.

Public comment periods emerged from the heated politics of President Franklin D. Roosevelt’s New Deal. Throughout the 1930s and ’40s, conservatives and Southern Democrats in Congress sought to hamstring the New Deal through stricter administrative laws but were continually rebuked by Roosevelt’s presidential veto. In 1946, after 14 years of wrangling, Congress and the Truman administration made significant compromises to pass a bill, a feat almost unfathomable today. The Administrative Procedure Act outlined various procedures that agencies had to follow to make regulations. Among them was a requirement to “afford interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.” Thus public comment periods were born, but for decades they were sparsely used. Many rules only received a handful of comments even through the late 1990s, Penn law professor Cary Coglianese wrote in the Duke Law Journal in 2006.

The E-Government Act of 2002 required public comment periods to move online, which was supposed to make them more accessible to the public. Yet issue-advocacy groups with lawyers, ad campaigns, and huge email lists have dominated them, particularly for partisan issues like net neutrality. Few people comb through the hundreds of pages of proposed rules and requests for comments published daily in the Federal Register, even for issues they’re passionate about. For example, I heard about the FCC’s request for comments on net neutrality rules from a Facebook friend sharing a link to the Electronic Frontier Foundation. In this way, issue-advocacy groups curate and simplify information for broader audiences, but as the case with net neutrality demonstrates, simplifying the comment process to increase the number of comments doesn’t automatically lead to better public input to policymaking or bring legitimacy to the process. The federal government and others have tried to make comment processes easier to access by using websites like regulations.gov, but have you ever visited it? It overloads users with hundreds of documents and requests much like the Federal Register. By contrast, RegulationRoom, a collaboration between Cornell University and several federal agencies under the Obama administration, used online facilitation and easy-to-understand guides to make the rulemaking process more accessible. But RegulationRoom ran out of funding.

The United Nations also uses comment periods during rulemaking with good intentions. In the international body’s comment process, however, individual citizens cannot submit comments.
Nongovernmental organizations serve as proxies for direct citizen comments alongside official representatives of various nations. Despite this difference, the U.N.’s online comment process faces problems like federal agencies do in the U.S.

Take the online comment process for a recent technical panel advising the U.N. regarding new technologies that can modify the genetic makeup of living organisms. These gene drive technologies could, for example, quickly spread genes that would prevent mosquitoes from transmitting malaria. Proponents advocate for their use to fight diseases, pests, and invasive species. But others contend that it could lead to extinctions and disruptions to complex ecosystems in ways we cannot predict.

Advocacy groups like Friends of the Earth claim that university scientists, the public relations firm Emerging Ag, and the U.S. military’s research arm, DARPA, recruited pro–gene drive scientists to submit online comments to the U.N. panel debating regulations on gene drives outside the lab. According to the advocacy groups, this coordination amounts to covert and questionable behavior. But the accusations rest on shaky ground. For one, scientists regularly contribute to U.N. processes related to their expertise. Further, Friends of the Earth and other advocacy groups do exactly what they are accusing scientists of doing: They recruit people and groups to submit to online comment processes at the U.N. and elsewhere. Indeed, Emerging Ag coordinated comments to the U.N. process that were critical of gene drives, according to Science. Yet Science and Nature, two major science news outlets, can’t agree whether the scientists’ behavior is acceptable and whether the actions of advocacy groups will help or hurt socially positive uses of new gene technologies. No matter the U.N.’s decision or the merits of accusations leveled at gene drive scientists, advocacy groups will have either defeated a shadowy public relations firm and the military or lost an unfair fight on a skewed battlefield. Just alleged manipulation of online comments is enough to undermine the process of policymaking.

The conflict over gene drives at the U.N. highlights what scholars Funtowicz and Ravetz call “post-normal science” problems. Uncertainty, contested facts and values, and high stakes take these post-normal science questions beyond what science can answer alone. Because groups contest facts on the safety of gene drives, comment periods will be mired in factual disputes, leaving agencies the impossible task of reconciling incompatible claims. Simply putting comment processes for post-normal science problems online so that more people can comment hasn’t helped as we witnessed in the case of net neutrality. Pundits and politicians cite problems with online comments as a reason to revisit the FCC’s net neutrality decision. Expect similar questioning of the U.N.’s initial report, which is due this summer.

So what to do? Despite their flaws, we shouldn’t just eliminate online comment periods. Reviving experiments to make online commenting both accessible and substantive, like RegulationRoom, is a good start. Yet even with better online tools, we need complementary mechanisms of channeling public sentiments about policy and science to decision-making bodies.

One solution may be a new model of public engagement that my colleagues and I at the Expert and Citizen Assessment of Science and Technology network have been working on. This model, called participatory technology assessment, has been used to evaluate potential asteroid missions at NASA and elicit perspectives on climate and energy from countries around the world. Participatory technology assessment relies on conversations among diverse people speaking for themselves and not through the words of established interest groups. These conversations result in more than a roster of for and against votes. Participants learn about an issue and then reflect on uncertainties, their own values, and the values expressed by others during deliberation. The informed public opinion that emerges provides decision-makers with actionable information about public sentiments, particularly for post-normal science problems. Can participatory technology assessments replace public comments? Of course not, if for no other reason than you can’t scale them to tens or hundreds of thousands of people. But they can provide more nuanced considerations regarding the trade-offs inherent to difficult, technically informed decisions. And if there’s anything we’re lacking today in public discourse, it’s nuance.