Regulatory Comments 101

You can’t win if you don’t show up

Prosecutors will tell you that 99% of the law is voluntary compliance.  We don’t fully live in Oliver Wendell Holmes’ “bad man” universe, where everyone is trying to break the law and we need prosecutors to bring every case.  Instead, you bring a single high-profile case against, say, Pirate Bay, and you send a strong message to the rest of the world.  This is one way that the law helps change the culture, and the law teaches us.

Conservatives love to talk about the culture, but we rarely show up.  Trump officials never brought that high profile prosecution of the Sackler family (although we did have an $8 billion civil settlement), only brought a tepid antitrust case against Big Tech in late 2020, and were essentially hands-off on charges against companies that hired illegal labor.  These kinds of white collar crimes get liquidated into cash fines, at worst.  No jail time, and no change of culture.

Meanwhile on day one Biden has been prosecuting Trump supporters and others to the fullest (beyond the fullest) extent of the law.  From the Capitol trespassers to Doug Mackey to facilitating deplatforming, the Biden admin knows how to use the levers of government to change our behavior, to lead the culture. 

Part of this is that conservatives, as Gladden Pappin and others have noted, don’t have a theory of the state.  When presented with something we don’t like, we often take the small-brained way out and say “that agency shouldn’t exist” or “it’s not a proper role for government.”  But when laws are passed and bureaucracies established to implement schemes, when you take the libertarian position, you aren’t standing athwart history yelling stop, you are standing on the overpass of history shouting at trucks below you.  Pointless and stupid.

Like it or not, we have federal agencies.  And the American people, through Congress, support these agencies and delegate to them functions.  And when we give those agencies money, those agencies can generally decide how to prioritize the expenditure of that money.  If you don’t like money being spent on Critical Race Theory or other issues, don’t just do nothing, or call your rep and say “this agency and program should not exist.”  The odds are your rep has been bought off— not in a corrupt way.  He’s not getting money from the program.  But he exchanges his support for the program for input into the program, which might mean directing the moolah to your neighborhood.  Or maybe he’s trading votes.  If he’s ideologically on your side, he’ll like the support from you, but you aren’t going to flip any votes.

Rather, the most effective thing a member of the public can do to oppose a policy is to file a regulatory comment.  State laws and certainly federal law contains robust rules of the road for how an agency can promulgate rules, how it can take action.  This includes what is called “notice and comment,” or the due process right of affected citizens to petition their side of the story to government.

This is not merely a venting exercise.  Sure, a comment might read “I don’t like this policy” and generally be ignored.  A comment might also say “this policy is illegal” and also be generally ignored.  A third type, saying “I don’t like your face” or “I don’t like this other policy” is a non responsive comment and is always ignored.  But the first two kinds usually have limited effect, because agencies are entitled to their own reasonable interpretations of law and good policy.  Also, if you are commenting that you don’t like a policy, that means that it is controversial enough that a hundred other people are commenting that they don’t like the policy, and duplicative comments aren’t helpful.

But what really helps is comments that provide nibbling around the edges that puts new ideas in the agency record.  When an agency is sued at the federal level under the Administrative Procedure Act, it has to show that it engaged in reasoned decision making.  This means if an agency is spending money to effect policy X, and you can say how it can better do that, and the agency ignores your comment, it has likely violated the law and might have a rule bounced back to the drawing table.

Back to conservatism.  Rather than saying “we don’t like this new fuel mandate,” we should be making regulatory comments like “we are concerned this new fuel mandate will not apply to this group of democratic donors.”  Rather than “we don’t like critical race theory,” a good comment says something conditional— IF you are serious about CRS you need to accept CRS that explains how Asian Americans are discriminated against at Harvard, etc.  These are poison pills, because they force an agency (if they have to respond) to choose between Scylla and Charybdis.

Similarly, if you personally are affected by a rule, or if you have some expertise other than mere policy disagreement that you can bring to bear, make a comment!  There is almost no downside to a regulatory comment.  Is Biden suggesting more student loan forgiveness?  Maybe you can comment how it should only do so for students who attend universities that provide accurate job numbers for graduates.  Etc.