Prior to 1994, if a citizen of the United States wanted to know if a federal agency was proposing new regulations or changes to existing ones, she had to get a copy of the Federal Register. Printed daily, the Federal Register provides a record of government agency rules, proposed rules, and public notices regarding opportunities to submit public comments on a rule. Except for law firms, corporate lobbyists, and a few others who purchased subscriptions, the only people who had access to the Federal Register were those with the ability to visit in person the Office of the Federal Register in Washington DC.
Putting the Federal Register online was revolutionary. Four years later, the United States Department of Agriculture became the first federal agency to provide the opportunity for the public to submit comments on a proposed rule through the Internet. The rule, which was the prompted by the 1990 Organic Foods Production Act, defined what the parameters for food to receive the new federal organic label. The draft rule proposed inclusion in the definition foods containing GMOs, irradiated foods, and food grown with sewage sludge. Organic farming associations, environmental groups, and other stakeholders mobilized and swamped the USDA with 275,000 public comments, more than 90% of them objecting to the proposed definition. Public comment closed on April 30, 1998, and by May 8 the USDA had revised its definition to exclude GMOs, Irradiated foods, and foods grown with sewage sludge.
Cynics saw the inclusion of the “Big 3” as nods to large and powerful agribusinesses that stood to benefit from applying the organic label, for example, to their genetically modified food. My colleague, Stuart Shulman, through a contact at USDA was able to get access to the complete dataset of 275,000 comments. Most of the comments had been submitted through the USDA web form, which saved each one as a separate ASCII text file. We began to comb through the comments, looking casually for something that might pop out as a research question. We were struck by how many people had made thoughtful comments about the definition’s threat to the integrity of organic farming. But we were also struck by how many comments were identical to one another. These two observations opened up two paths of research that we would follow for the next several years.
The first path explored the implications for democratic participation and processes of the dawning era of “electronic rule making (or e-rulemaking). The basic assumption was that in the pre-Internet era, the average citizen or small organic farmer would not have known about the proposed rule and therefore only legal counsel and lobbyists of well-heeled corporations would participate in the public comment process. Even with the knowledge, the infrequent letter from a concerned citizen would certainly not carry weight against the scientifically and economically informed analysis provided in the industry comments. The USDA organic rule suggested that with access to information about a rule making, with the opportunity to submit comments through a website rather than mailing or faxing a letter, and with the technology to communicate this to constituents and concerned citizens, an outpouring of opposition could not be ignored against the now small, in comparison, number of comments coming from industry.
We wanted to open up dialogue about the possibilities that were emerging for public involvement in processes from which they had mostly been excluded. So we organized a special section on the topic in a journal called Organization & Environment. Our introduction to the section, “The Internet and Environmental Decision-Making: A Dialogue,” laid out the questions. We built on these questions by laying out a research agenda for social scientists in an article titled “Electronic Rulemaking: A Public Participation Research Agenda for the Social Sciences” (Social Science Computer Review, 2003).
With the growing number of federal agencies using Internet-based public participation in their rule makings, we brought on another political scientist, David Schlosberg, and expanded our research. We examined public comments on two additional rule makings, the Department of Transportation’s controversial Corporate Average Fuel Economy (CAFE) Standards and the Environmental Protection Agencies proposal to change the definition of “wetlands” under the Clean Water Act (essentially reducing the amount of land under protection). In these and other rules, we saw the evolution of what we had first seen in the organic rule–mobilization of form letter campaigns by interest groups.
In the organic rule, interest groups sent emails to their constituents with sample letters to prompt them to submit a comment to the USDA. Or, they might have had sample letters on their websites and directed traffic from their websites to the USDA where people could submit their comment. By the early 2000s, interest groups had become more sophisticated. HTML-based email meant they could embed in the email itself a form letter with a “click to submit” button, eliminating the need for the concerned citizen to leaver the email program to submit a comment. In interviews with environmental groups, we learned that in many cases the intention was that recipients of their form letters would modify the letter before submitting.
But the environmental groups were not terrible concerned to learn that, in fact, most people simply clicked “submit.” The result was that agencies were receiving, in the case of contentious regulations, thousands of identical form letters with the occasional form letter that had been slightly altered with the addition of a sentence, for example. This had agency rule writers, who by law are required to read all public comment and respond to any “substantive” comment, very concerned. In environmental rule making, the saying goes, “you know you’ve written a good rule when you piss off industry and environmentalists equally.” This is because if both sides are equally unhappy with a proposed rule, there’s a possible stalemate. In the zero-sum world of American politics, if one side felt it was getting the worse deal, its strategy would usually be to bring down the whole process through legal challenges.
The agency rule writers knew that one way to challenge a rule is by claiming that it has violated the Administrative Procedures Act, the act that requires agencies to respond to all substantive comments. What if, buried deep within 10,000 form letters that could not each be read individually without losing one’s sanity, there was a unique, original and substantive sentence added? The agency might submit its final rule, along with explanations of how the agency is responding to all of the substantive concerns, only to be sued by an interest group claiming that a constituent had submitted a comment with a substantive concern that was not addressed.
What we began to realize is that environmental groups, at least most of the ones we interviewed, were not interested in enhancing democracy. They simply wanted to win, even if sometimes a win was nothing more than some media attention for a record-setting number of form letters the organization was responsible for. Looking back, I realize now that we were doing the bulk of this research in the period immediately after the 2000 Presidential election had been settled by the Florida Supreme Court. It is quite likely that environmentalists felt that the system was fundamentally broken and that “deliberation” with the enemy would not get the desired result. We did not explore this line of thinking at the time. Instead we focused on the paradox of the opening up of deliberative space through the Internet for more widespread and potentially meaningful citizen deliberation and the manipulation of that space through use of the very same technology that had opened it up. Two pieces that capture the nuances we tried to tease out around this paradox are “Democracy and the Environment on the Internet: Electronic Citizen Participation in Regulatory Rulemaking” (Science, Technology & Human Values, 2006) and “Deliberation in E-Rulemaking? The Problem of Mass Participation” (in Online Deliberation: Design, Research, and Practice, edited by Todd Davies and Seeta Gangadharan, 2009).
Zavestoski, Stephen, and Stuart Shulman. 2002. “The Internet and Environmental Decision-Making: A Dialogue.” Organization & Environment 15(3): 323-327.
Shulman, Stuart W., David Schlosberg, Stephen Zavestoski, and David Courard-Hauri. 2003. “Electronic Rulemaking: A Public Participation Research Agenda for the Social Sciences.” Social Science Computer Review 21, 2 (Summer).
Schlosberg, David, Stuart Shulman, and Stephen Zavestoski. 2005. “Virtual Environmental Citizenship: Web-Based Public Participation on Environmental Rulemaking in the U.S..” In Environmental Citizenship, edited by Andy Dobson and Derek Bell, pp. 207-236. Cambridge: MIT Press.
Zavestoski, Stephen, Stuart Shulman, and David Schlosberg. 2006. “Democracy and the Environment on the Internet: Electronic Citizen Participation in Regulatory Rulemaking,” Science, Technology & Human Values 31:1-26.
Schlosberg, David, Stuart Shulman and Stephen Zavestoski. 2009. “Deliberation in E-Rulemaking? The Problem of Mass Participation.” In Online Deliberation: Design, Research, and Practice, edited by Todd Davies and Seeta Gangadharan, pp. 133-148. Chicago: CSLI Publications/University of Chicago Press.