Bringing the Public Back In: Can the Comment Process Be Fixed?

[Speech] Something here is not right—and what is wrong is not confined to the Federal Communications Commission. Because fake comments and stolen identities are pouring into proceedings across Washington. They’ve been uncovered at the Department of Labor, the Consumer Financial Protection Bureau, the Federal Energy Regulatory Commission, and the Securities and Exchange Commission. 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.” 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.

If we want to build the civic infrastructure to withstand this assault we need to both understand its origins and take out the rogues who are stealing identities, cheating the public, and destroying our trust. While we build this civic infrastructure, we can take steps to improve the rulemaking process. Every agency should perform its own internal investigation. Every agency should heed the advice of the Government Accountability Office—which is right now reviewing the “extent and pervasiveness of fraud and the misuse of American identities during the federal rulemaking process.” Every agency should consider simple security measures—like CAPTCHA or two-factor authentication—that can enhance security without decreasing public participation. And every agency can do something old-fashioned: they can hold public hearings. But the truth is we need to get started. Because that’s what is necessary to bring the public back in—and that’s what democracy in the digital age requires.