Whose line is it, anyway?


Federal Rulemaking isn’t what it seems

In 1976 the Code of Federal Regulations (CFR), the body of administrative law through which rulemaking agencies supervise innumerable details of daily life in America, was nearing 90,000 pages. Its growth since then has averaged about 2,500 pages annually, bulking up to a grand total exceeding 180,000 pages by the end of 2016.

Because virtually every regulation will have some economic impact, it’s no wonder the people affected seek to influence how or whether a rule is written. One channel for those efforts is a formalized period for public comment, prescribed by federal law.

For an agency to receive more than a million comments on a proposed rule is not unheard of. Thanks to a recent major media investigation, it’s also not unheard of for many comments to be fraudulent, falsely attributed to people who had no thought of participation in federal rulemaking. And thanks to Wisconsin Electric Cooperative Association (WECA) research almost four years ago, it’s clear the use of phony comments to manipulate such rulemaking is not new.

EPA Mind-Meld

On March 25, 2014, The Environmental Protection Agency (EPA) announced it would propose a new definition of “Waters of the United States” (WOTUS) to clarify agency jurisdiction under the Clean Water Act. Examining documents proffered by the EPA to simulate a public clamor for the rule, WECA found different individuals in several states quoted one after another pronouncing identically worded sentences praising the regulation—a double oddity, in that the rule’s content would not be publicly revealed until 28 days later.

As it turned out, WECA had sighted the tip of an iceberg. More than a year afterward, The New York Times reported in May 2015 that the EPA had rigged public comments on the WOTUS rule. Weeks earlier, then-EPA Administrator Gina McCarthy told a congressional committee her agency received more than a million comments and 90 percent favored the rule.

But the vast margin was “orchestrated,” the Times reported, through “a campaign that tests the limits of federal lobbying law” with coordinated efforts by the EPA and allied interest groups.

Months later, the Government Accountability Office (GAO) in December 2015 ended an investigation by finding the EPA had indeed violated federal lobbying law. The GAO report said the EPA “engaged in covert propaganda when the agency did not identify EPA’s role as the creator of the Thunderclap message to the target audience,”—Thunderclap being a web platform allowing a single message to be shared simultaneously across multiple social media accounts, in this case to create the illusion of a tidal wave of public support for the WOTUS rule.

Earlier in 2015, a federal appeals court had put the rule on hold after a majority of the states sued to block implementation. Opponents argued that the rule would allow the EPA to regulate more than 90 percent of the entire landmass of some states as “Waters of the United States.”

Computer-generated support for WOTUS wasn’t the end of the story. In November 2016, the House Committee on Oversight and Government Reform reported that while the EPA was carrying out its hidden role manufacturing favorable comments, it was also sidelining legitimate ones submitted by the public. The committee report concluded that the rule was already written before the agency reviewed genuine public comments and “it cannot be determined how any of the comments were taken into account in the creation of the rule.”

The WOTUS rule never took effect. It was rescinded early last year and a new draft is being prepared.

The Neutrality Act

In December 2017, The Wall Street Journal published a lengthy investigative report on enormous numbers of bogus rulemaking comments submitted to a variety of federal agencies.
Evidently technological refinements have greatly enhanced the mass distribution of falsehood since WECA noticed the EPA churning out fabricated enthusiasm just a few years ago, and to the extent that partisan interests are involved, fraud seems to be an equal-
opportunity enterprise.

The Journal noted that the Federal Communications Commission (FCC) received 23 million comments weighing in on its plan (recently finalized) to undo the Obama administration’s “Net Neutrality” regulation of Internet providers. Suspicions, the Journal reported, were aroused last May when thousands of emails suddenly poured in asking the FCC to retain the Obama regulation, soon followed by thousands more demanding repeal.

The extent of phony commenting can be measured on the FCC website, where 818,000 identical postings were filed supporting Net Neutrality repeal, while one 369-word comment supporting continuation of the Obama policy was filed 300,000 times, attributed to different individuals, the Journal reported.

An FCC spokesman’s remarks to the Journal indicated—not surprisingly—that the agencies are overwhelmed by the difficulty of verifying the identity of people filing comments. It’s a federal felony to submit fraudulent statements to an agency, and that would include using another person’s name without their consent. But the risk of being caught in the crime appears slim.

The Journal also named the Securities and Exchange Commission, the Consumer Financial Protection Bureau, and the Federal Energy Regulatory Commission among agencies where people claimed no knowledge of comments filed under their names.

A few days later, the Labor Department was added to the list, after a research firm contracting with the newspaper found that 20 out of 50 people responding to a survey denied having anything to do with regulatory comments posted under their names on the department’s website.

Unclear Origins

So far we’ve heard of no one claiming to know whether the recent spate of fraudulent comments originated within or outside the agencies—or both. Certainly the agencies have an interest in the outcomes of their rulemaking, and certainly we’ve all lived through too much in recent years to believe no individual employee would ever go rogue. However, there has been no reported evidence indicating an inside job and The Wall Street Journal did report that some bogus comments closely reflected talking points issued by private-sector interest groups.

By contrast, in the 2014 WOTUS episode it’s entirely reasonable to believe if the EPA itself did not directly create phony public reaction it was at best complicit—a suspicion in no way diminished by flattering references to the agency administrator by name, repeated in duplicative quotations.

In its initial story, the Journal quoted a Federal Energy Regulatory Commission spokeswoman saying “If someone believes that they have been misrepresented in comments filed with us, they should contact us to let us know.” Sound advice, but the story didn’t suggest how, short of a reporter’s query, a person might learn that a false comment had been filed in their name. —Dave Hoopman