Public Comments Run Amok: Reforming the Notice and Comment Process to Help Reduce the Negative Effects of Mass and Fake Comments
The Administrative Procedure Act requires agencies to give the public an opportunity to submit comments in response to proposed regulations. When the proposed regulations address particularly hot-button issues, agencies can be flooded with millions of comments from the public in response. This most memorably occurred twice when John Oliver exhorted viewers of his show to write in to protect net neutrality. The vast majority of the millions of comments submitted in both processes were duplicative, providing no benefit for the agency; sent in under the name of a person who did not submit them; or both. If the vast majority of the comments coming in are essentially useless, it is time to rethink the process.
This Article argues that two simple fixes could help solve many of the problems caused by these duplicative and/or falsely attributed comments: (1) The submission process should be restructured so that individuals sign on to the comments of other individuals rather than submitting their own unique comment, and (2) Commentors should be allowed the option of verifying their identity when submitting a comment. These would help reduce the harm caused by both types of these comments and would be expected to be embraced by all affected interests: the agencies, the public, and the third-party organizations driving the proliferation of mass comments.
69 Buff. L. Rev. 759 (2021).