The National Significance of Public Comment: Past, Present, and Future

Dominick Montgomery
November 19, 2020

The National Significance of Public Comment: Past, Present, and Future

Government is always changing. It's a fact that can be both frightening and inspirational. When the rules aren't set in stone, then there's always the chance that the unjust or ineffective ones can be revised. By the same token, new harmful rules can be implemented just as quickly.

The most visible changes in government are effected at its highest levels. Every new president brings a new set of goals and new ideas about how best to achieve them. Even the death of a single supreme court justice can significantly change which proposed laws are put into place and which ones wither away.

The high-level machinations of the government draw plenty of public attention, but don't produce much trust. A 2016 survey reported that of those respondents who had done research into that year's election, a full 36% did not believe that their vote would affect how things were run. Of the group that had not researched the upcoming election, that proportion was nearly one to one. Research efforts by the Knight Foundation revealed a group of 100 million citizens in the United States who are eligible to vote, but refrain from doing so for a variety of reasons. Chief among these is a lack of faith in the government, and in the value of their votes.

When so many citizens feel as though they have no say in how their country is run, it's more important than ever to carefully the mechanisms that allow us to influence the operation of government. The presidential election system in the United States has already been examined extensively, and now doubt will continue to be an important point of discussion for decades to come, but it's far from the only way that citizens can make change.

The History of Public Comments

The origin of the public comment period system that is used in American rulemaking today lies with the origin of the American system of government as a whole, in early democratic thought. The European enlightenment swayed western culture more toward the sciences and logical, ordered thinking, but it also nurtured the ideas concerning rule by the people that would make their way into the United States Constitution.

Enlightenment thinkers celebrated the democracies of Athens and Rome, which nominally put governmental power into the hands of their citizens. The Genevan philosopher Jean-Jacques Rousseau believed that human nature was fundamentally compassionate, and sought to build a political system that would allow that better instinct to guide national policy. The first system to attempt it on a large scale was codified in the US constitution, and France's attempt to do the same would begin to send political shock waves through Europe at nearly the same time.

As the United States government changed and grew, slowly extending the franchise to more groups and piling up more and more legislation on thousands of topics, the public comment period system as we know it would come to be. As it stands now, it serves as a balance to the power of the vote. Voting allows citizens to indirectly choose which laws are put into pace. Public comment gives them an opportunity to influence how, and sometimes even if, those laws are executed.

Strengths and Failings

Though public comment periods give more direct access to the government, their power is limited. First, not all rules are available for formal comment, and those that are provide a limited window. Second, government agencies may be required to give serious consideration to the comments they receive, but there is no law requiring them to make changes that directly correspond to the comments they have received. Third, the rules which the public comment system affects are meant to specify the means for executing already established law, and comments on the a rule aren't able to change the law which it is expressing.

Taking all this into account, the public comment system seems to be a much less rigid framework for making change than the election system. It relies more on human interaction for its effects. Rather than providing a simple vote, citizens can use it to deliver nuanced arguments to specific legislators. Presuming fair elections, the value of a single vote is easy to calculate. The potential effect of a comment is harder to estimate. Depending on the situation, a single comment could influence a specific policy immensely. In another case, thousands of comments might be needed to make the agency lift so much as a finger. Rather than exclusively serving the citizenry as a whole, it can allow experts and passionate individuals special access to the legislative process.

As much as the structure of the public comment system differs from the vision of Rousseau and his contemporaries, it has occasionally given voice to spontaneous movements. In instances when proposed rules have seen significant backlash, public comments have been used not only to criticize the rules themselves, but also the failings of the public comment system in the eyes of its users.

The Future of Public Comment

The line that separates a formal comment from an informal comment is thin. The only difference between the two is that government agencies are often required by law to treat formal comments seriously. Often, though, protests and simple public discourse surrounding legislation can have a similar influence on the people who write and enact it. Most political power is exercised outside of traditional channels like voting or public comments.

That said, the public comment system has benefited from the same technological advances that have made discussion more accessible in general. The internet has saved agencies that receive public comments from being buried under heaps of paper mail. Commenters have easier access to the service, and transmission times for their messages have been cut significantly by the switch to digital comment periods.

These simple benefits have helped to make public comments an increasingly relevant vector for citizens to engage in government, but as technology improves, the may only be the beginning. Using sophisticated software, digital public comment systems can support larger numbers of comments, sort and process them more efficiently, and provide tools to analyze the trends that they represent.

With a large enough body of comments and powerful enough tools to interpret them, the distinction between comments and votes can become blurry. Both are simply citizens expressing their opinions. Theoretically, public comment software applied on a large enough scale could give a government agency the ability to understand the thoughts and desires of the population they serve in more detail than ever, even as those ideas continue to shift in real time.

These sorts of technologies are giving us the tools we need to build a better, more comprehensive democracy than the founding members of this country would have thought possible. If we can develop them quickly and apply them well, it might not be long before everyone's voice is heard loud and clear.