Chapter 1 Introduction: Why Study Public Participation in Bureaucratic Policymaking

This dissertation is about public pressure campaigns that target U.S. federal agency rulemaking, a technocratic policy process in which participation is usually limited to a few policy insiders. Occasionally, however, public pressure campaigns help make agency rules some of the most hotly contested policies of our time. I examine who organizes public pressure campaigns and why, whether these campaigns affect congressional oversight, and whether they affect policy. Answering these questions informs our understanding of bureaucratic politics as well as interest group lobbying, organizing, and mobilizing tactics. At a time when the vast majority of policy is made in bureaucracies, the relationship between citizens and government depends on bureaucratic policymaking. If ordinary people have a voice in bureaucratic policymaking, I argue, it is through public pressure campaigns. The capacities required to influence national-level policy are those of organized groups, not individuals acting alone. Thus, understanding the nature and effects of these campaigns is key to understanding modern democracy.

With the rise of the administrative state, U.S. federal agencies have become a major site of policymaking and political conflict. By some estimates, upward of 90 percent of legally binding U.S. federal policy is now written by agencies (Warren 2010). Agency rules are revised much more frequently than statutory law (Wagner et al. 2017). In the years or decades between legislative enactments, federal agencies make legally binding rules that interpret and reinterpret old statutes to address emerging issues and priorities. Since Kerwin and Furlong (1992) observed that “rulemaking has become the most common and instrumental form of lawmaking” (p. 114), this observation has only become more true.

To illustrate the importance of bureaucratic policymaking, one could pick from thousands of examples of how our food, water, medicine, prisons, energy system, and financial system are governed through agency rulemaking. Congress authorizes billions of dollars in grants, subsidies, and leases for public lands, but who gets these benefits depends on agency policy. The effects of the Dodd-Frank Wall Street Reform and Consumer Protection Act were largely unknown until the specific regulations were written, and U.S. policy on banking continues to change as these rules are revised. In the decades since the last major environmental legislation, agencies have written thousands of pages of new environmental regulations and thousands more, changing tack under each new administration. For example, most federal policies addressing climate change are agency rules “implementing” the 1963 Clean Air Act that was last amended in 1990.

Agency rules significantly shape lives and fortunes. For example, in 2006, citing the authority of statutes last amended in the 1950s, the Justice Department’s Bureau of Prisons proposed a rule restricting eligibility for parole. In 2016, the Bureau withdrew this rule and announced it would require fewer contracts with prison companies, precipitating a 50 percent loss of industry stock value. Six months later, a new administration announced these policies would again be reversed, leading to a 130 percent increase in industry stock value. Agency rulemaking clearly matters.

Less clear, however, is how the new centrality of agency rulemaking fits with democracy. In addition to the bureaucracy’s complex relationships with the president, Congress, and the industries they support and regulate, agencies have complex and poorly understood relationships with the public and advocacy groups. Relationships with constituent groups may even provide agency officials with a degree of autonomy from their political principals in Congress (D. P. Carpenter 2001). These complex relationships make bureaucratic policymaking difficult to study. Moreover, different theories of democracy emphasize different—and often conflicting—roles for bureaucracy.

Bureaucratic organization is a core feature of nearly all ambitious human projects, including modern democracies. Bureaucracy—and bureaucratic policymaking in particular—helps address two major challenges faced by large democracies. First, large democracies are susceptible to the fleeting passions of the mass public. To combat this, many decisions are left to unelected experts who, ideally, exercise judgment loosely guided by the public. Additionally, some large democracies constrain legislative policymaking through supermajoritarian or bicameral legislatures, a separation of powers, or judicial review. The result is that many policy problems are (either de jure or de facto) left to the bureaucracy. Second, not everyone can vote on every policy decision. We thus delegate power to elected representatives (who then delegate it to unelected deputies in the bureaucracy), solicit input from those most affected or moved by a public decision, and create temporary mini-publics.1 Most policy in large democracies is thus made by bureaucrats, supposedly guided indirectly through elected representatives and directly by limited forms of public input.

While bureaucracies address both of these challenges—they institutionalize expert counterweights to mass politics and make larger volumes of policy than any plebiscite could—they do not resolve them. Both challenges are especially acute in bureaucratic policymaking. Using bureaucracy to address challenges as diverse as resisting populism, enabling representative democracy, and encouraging direct participation in policymaking creates contradictions in the tasks assigned to government officials (Wilson 1989). Bureaucracies are run by experts who are often embedded in professional networks and epistemic communities that value very specific kinds of expertise (D. P. Carpenter 2001, 2014). At the same time, officials are deputized by, and are thus accountable to, elected officials. Moreover, bureaucratic policymaking procedures often aim to create opportunities for direct public input, such as public comment periods on draft policies. The result is the apogee of the famous “Bureaucracy Problem” (Wilson 1967): bureaucracies are expected to optimize multiple conflicting goals, each goal involving different types of relevant information, different constituents, and, often, attracting the attention of different scholars. It is far from clear how bureaucratic decisions are to balance expertise, accountability to elected officials, and responsiveness to public input in policymaking.

Participatory processes like public comment periods, where government agencies must solicit public input on draft policies, bring the tensions of bureaucratic policymaking in a democracy into sharp focus. Comment periods are said to provide political oversight opportunities (Steven J. Balla 1998; Mathew D. McCubbins and Schwartz 1984), democratic legitimacy (Croley 2003; Rosenbloom 2003), and new forms of expertise and technical information (S. W. Yackee 2006; Nelson and Yackee 2012; Wagner 2010).

Activists, politicians, and the press often discuss comment periods as if they are an inherently majoritarian or pluralist institution. After one particularly controversial policy battle, reporters in the New York Times wrote that “[t]he purpose of the public comment period was to objectively gauge Americans’ sentiment before changing a policy that could profoundly affect their lives” (Lipton and Davenport 2015). It is clear that rulemaking profoundly affects lives. The extent to which public comment periods gauge public sentiment is much less clear. Of the thousands of policies that government institutions make each year, direct public input tends to be limited to only the most contentious policy debates. Even elected officials who are in positions to oversee bureaucratic policymaking infrequently play any role in bureaucratic policymaking.

While most federal agency policies receive little public attention, activists occasionally expand the scope of conflict by targeting agency policymaking with letter-writing campaigns, petitions, protests, and by mobilizing people to attend hearings, all classic examples of “civic engagement” (Verba and Nie 1987). As I show in Chapter 2, most comments submitted to regulations.gov are form letters, more akin to petition signatures than sophisticated lobbying. Indeed, approximately 80 percent of public comments on federal agency rules were mobilized by just 100 advocacy organizations. Yet civic engagement remains poorly understood in the context of bureaucratic policymaking. While recent scholarship on agency policymaking has shed light on the sophisticated lobbying by businesses and political insiders (J. W. Yackee and Yackee 2006), we know surprisingly little about the vast majority of public comments, which are submitted by ordinary people as part of public pressure campaigns.

The occasional bursts of civic engagement in bureaucratic policymaking that public pressure campaigns generate raise practical and theoretical questions for the practice of democracy. These practical and theoretical questions hinge on unanswered empirical questions: Who is behind these campaigns? Do they affect policy? If so, by what mechanisms?

Existing research finds that commenters believe their comments matter (S. W. Yackee 2015b) and that the number of public comments varies across agencies and policy processes (Moore 2017). In particular, scholars have found that mass comment campaigns drive significant participation of the lay public in rulemaking at the Environmental Protection Agency (Potter 2017a; Steven J. Balla et al. 2018). Cuéllar (2005), examining public input in three rulemaking processes, finds that members of the lay public, not professional policy influencers, made up the majority of commenters, demonstrating “demand among the mass public for a seat at the table in the regulatory process.” Yet, the relationship between the scale of public engagement and policy change remains untested. Indeed, we have much to understand about the causes and effects of public pressure campaigns before we are in a position to ask if they are a mechanism for groups to influence policy. Most critically, we must understand who mobilizes public pressure campaigns and why.

1.1 What We Know About Bureaucratic Policymaking

Departing from the conventional wisdom that government was necessarily political, an influential movement in public administration in the early twentieth century promoted the idea that challenges of governance could be solved rationally (Svara 1998)—what Stone (2002) calls the “rationality project.” Administration was to be a science with objective methods to design and carry out administrative tasks. The principles of good administration were discoverable, generalizable, and neutral (Long 1949; Caiden 1984).

In the mid-twentieth century, a wave of scholarship pushed back, arguing that “the lifeblood of administration is power” and that bureaucratic decision-making is saturated with “forces on whose support, acquiescence, or temporary impotence the power to act depends” (Long 1949, pg. 1). Rather than merely subordinate cogs in a governmental hierarchy, bureaucrats’ decisions are functions of a multitude of relationships with the other political institutions in which they are embedded. “Administrative organizations, however much they may appear to be the creations of art, are institutions produced in history and woven in the web of social relationships that give them life” (Long 1949, pg. 6). Bureaucracies are inescapably part of the politics of their time. The work of bringing politics back into the study of bureaucracy is an active program (S. W. Yackee 2019).

Long suggested that Congress, individual members of Congress, committees, courts, other agencies, presidential advisors, and the president all affect agency policymaking, but the effect of these more official demands “varies with the political strength of the group demand embodied in it” (Long 1949, pg. 7). That is, the effect of official demands is conditional on the power of the coalition supporting them. In the language of principal-agent theory, the effect of principals on agencies is mediated by their level of political support. Likewise, we might say that the effect of interest groups that attempt to influence bureaucratic policymaking is mediated by their access to formal levers of power.

Leading models of influence in bureaucratic policymaking focus on two key political forces: sophisticated interest group lobbying and political constraints from Congress and courts. As bureaucrats learn about policy problems and balance interest-group demands, public comment processes allow lobbying organizations to provide useful technical information and inform decision-makers of their preferences on draft policies. Agencies may then update policy positions within constraints imposed by their political principals.

The remainder of this subsection offers a brief review of the special institutional context of bureaucratic policymaking, then scholarship on interest group lobbying and principal-agent dynamics, and finally the limited scholarship on public pressure campaigns and the bureaucracy, most of which comes from administrative law scholars.

1.1.1 Accountability to the President, Congress, and the Courts

Presidents, Congress, and courts all affect agency policymaking (Moe 1985). Yet, agencies vary in their independence from presidential and congressional agendas (D. P. Carpenter 2001; Selin 2015). As a result, agencies vary in their responsiveness to Congress (Clinton, Lewis, and Selin 2014; Farhang and Yaver 2015), the courts (Lauderale and Clark 2012; C. Carrigan and Mills 2019), the president (C. M. Carrigan, Kasdin, and Xie 2021), and public opinion (Dunleavy 1991).

Principal-agent models, where political actors use various rewards and sanctions to affect agency behavior, offer one way to think about accountability. Stemming from the image of a hierarchy of governmental authority, models of principal-agent dynamics focus on how institutional design and incentives can increase political control over administrative institutions. Specifically, these models focus on how Congress and the president delegate authority and then attempt to constrain bureaucrats’ exercise of those authorities. For example, models of delegation suggest that rational principals will delegate to agents with similar goals, repeated interactions, and when they are able to overcome commitment and information problems (Bendor, Glazer, and Hammond 2001). Mechanisms of congressional control over the bureaucracy include congressional oversight and administrative procedures that require agencies to be transparent and give interest groups opportunities to raise concerns (Mathew D. McCubbins, Noll, and Weingast 1987).

While early principal-agent scholarship focused on either Congress or the president (Wildavsky 1964; Niskanen 1975), newer models of bureaucratic policymaking recognize that agency actions are simultaneously constrained by multiple other branches of government (Moe 1985; Potter 2017b). Models of political oversight also now appreciate the role of interest groups in shaping interactions among branches (Mathew D. McCubbins and Schwartz 1984; Mathew D. McCubbins, Noll, and Weingast 1987). I take up the role of interest groups in congressional oversight of bureaucratic policymaking in Section 3.2.5.

1.1.1.1 The President

Agency rulemaking is where the rubber hits the road for both legislation and presidential agendas [Huber2002; Devins and Lewis (2008); J. W. Yackee and Yackee (2009b); Kerwin and Furlong (2018)]. While Congress intentionally designs agencies with varying levels of presidential control (Lewis and Selin 2014; Selin 2015), presidential agendas are one of the main drivers of bureaucratic policymaking (Clinton, Lewis, and Selin 2014). Indeed, bureaucratic policymaking varies even more from president to president than the use of direct mechanisms of control would suggest (J. W. Yackee and Yackee 2009b). As I show in Section 2.4, different presidents inspire different politics in bureaucratic policymaking.

Presidents—working through the White House Office of Information and Regulatory Affairs (OIRA)—review agency policies and often direct agencies to modify proposed policies (S. Haeder and Yackee 2018). While scholarly attention to OIRA has focused on cost-benefit analysis, Shapiro (2005) finds that the president’s political priorities tend to trump cost-benefit analysis. OIRA review of agency policies is thus another way that political forces, including interest groups, affect agency rules (S. F. Haeder and Yackee 2015). To the extent that public pressure campaigns draw the attention of the White House to agency rulemaking, they may affect OIRA review as well. While I do not explicitly address the role of OIRA in rulemaking in this dissertation, my argument that pressure campaigns expand the scope of conflict includes the involvement of additional actors, including the president and OIRA.

1.1.1.2 Congress

After the president’s policy agenda, partisan control of Congress is one of the most important political constraints (J. W. Yackee and Yackee 2009a), especially when Congress is making policy (W. F. West and Raso 2013) or when agencies fear that a hostile Congress will override their policy decisions (Potter 2017b). Under a divided government, Congress tends to empower agencies that are more independent from the president (David Epstein and O’Halloran 1999). We may think of agency policymaking as consistently affected by presidential agendas, with Congress providing shocks and constraints.

The priorities and attention of Congress and the president affect the volume of rules produced by each agency (Potter and Shipan 2019). For example, agencies adjust the number of rules they produce in response to partisan control. Divided government leads to agencies issuing fewer rules and fewer substantively significant rules than they do during periods of unified government (J. W. Yackee and Yackee 2009a). One reason we see fewer rules under divided government is that agencies strategically time their policy processes to avoid hostile majorities in Congress and the Court (Potter 2017a).

While Congress is often modeled as a unitary actor, either enabling or constraining presidential agendas, individual members of Congress also engage the bureaucracy independently (Lowande 2017). For example, legislators engage in bureaucratic policymaking when they are unable to advance their priorities through legislation due to partisan pressures and chamber control (Ritchie 2017). Congressional attention to the bureaucracy is also driven by the constituents they represent (Lowande, Ritchie, and Lauterbach 2018; Snyder et al. 2020), their campaign donors (Powell, Judge-Lord, and Grimmer 2020), and the capacity of their office—for example, oversight committee positions and staff resources (Judge-Lord, Grimmer, and Powell 2018). When they do engage in bureaucratic policymaking, legislators often use the highly institutionalized nature of agency rulemaking to their advantage by raising process concerns about agency policies they dislike (Lowande and Potter 2021). I build on this literature in Section 3.2.5 and show that members of Congress engage in bureaucratic policymaking because they are mobilized by public pressure campaigns. Moreover, I show that the lobbying coalitions that members of Congress support are more likely to achieve their desired policy outcomes.

1.1.1.3 Courts

Courts arbitrate between congressional and presidential control by reviewing bureaucratic policy for congressional intent and adding additional procedural requirements to policymaking (Bueno de Mesquita, Stephenson, and Stephenson 2007). Because statutes often give interest groups standing to take agency policies to court, judicial review is also a lever for interest group influence. Unlike lawsuits challenging the constitutionality of a statute passed by Congress, lawsuits challenging agency policies often accuse the agency of failing to meet procedural requirements.

While judges may often uphold or strike down agency policies based on their ideological position (L. R. Cohen and Spitzer 1996; Segal and Spaeth 2002; Bailey and Maltzman 2008), the process by which agencies make policy also affects judicial review (Judge-Lord 2016). Judges may evaluate an agency’s accountability to political principals, the expertise agency officials employed, or by who participated in the policy process. For example, in a landmark case on judicial review, Chevron U.S.A., Inc. v. NRDC (2001, 467 U.S. at 865), the Supreme Court held that the EPA deserved deference because “the regulatory scheme is technical and complex, the agency considered the matter in a detailed and reasoned fashion, and the decision involves reconciling conflicting policies.” This suggests that both the agency’s use of expertise and the process by which the decision was made affect judicial review. In another landmark case, U.S. v. Mead Corp. (2001, 533 U.S. at 218), the Supreme Court held that courts should review agency policy for “the fairness and deliberation that should underlie a pronouncement of such force.” Reviewing courts often cite levels of public participation as evidence of a fair and legitimate process. Court opinions frequently note whether a policy resulted from notice-and-comment rulemaking and, occasionally, how representative commenters were. For example, in another landmark case on judicial review, Vermont Yankee v. NRDC (1978, 435 U.S. at 519), Justice Rehnquist noted that “[m]ore than 40 individuals and organizations representing a wide variety of interests submitted written comments.”

The features that shape bureaucratic policymaking—attention from political principals, the weight of expertise, and levels of public participation—may shape judicial review as well. In addition to accountability and expertise, the level and type of public participation are important criteria for legitimacy from pluralist and direct democracy perspectives (Woods 2013). In these perspectives, the type of groups or the number of individuals participating in bureaucratic policy may affect the perceived legitimacy of policies. Justices may respond to cues that reflect the relative support of the public or of those affected by the policy (Clark 2009). While there is little evidence that judges are persuaded by (or even know) the share of public comments supporting a rule, there is evidence that bureaucratic policies with more public participation are more likely to be upheld (Judge-Lord 2016). If levels of public attention and participation affect judicial review, we would expect them to also affect the politics of bureaucratic policymaking in the shadow of judicial review.

This subsection has focused on accountability to political principals. The next subsection reviews the importance of expertise, and, of course, my project squarely addresses who participated.

1.1.2 The Institutional Context of Bureaucratic Policymaking

Two features set bureaucratic policymaking apart from how policy is made in Congress, the White House, and courts: it is highly structured and often places much greater weight on specialized expertise. The importance of structure and expertise are key features of bureaucracy in general, especially large public bureaucracies like the U.S. federal government. But structure and expertise take on special significance in the context of policymaking. The next two subsections address the special importance of structure and expertise in bureaucratic policymaking. In policymaking, the tasks prescribed by bureaucratic structure are the tasks of lawmaking, including processes for soliciting and responding to public input. The value placed on expertise makes bureaucratic policymaking notably technocratic.

1.1.2.1 Structured Policymaking

The theories about the drivers of public participation and the mechanisms by which it may affect policy that I advance and test in the following chapters may apply to many contexts where public pressure is aimed at decision-makers. My empirical terrain, however, is policymaking by U.S. federal agencies, specifically the process of “notice-and-comment” rulemaking prescribed in the Administrative Procedure Act (APA). These policies (federal agency rules) and their potential to change are the contexts for the political dynamics that I explore in Chapter 2 and the dependent variable for Chapters 3 and 4. The APA governs the process by which federal agencies develop and issue legally binding policies. It requires agencies to publish proposed (draft) and final policies (rules) in the Federal Register and provide opportunities for the public to comment on draft rules.

The legal requirements of Section 553 of the APA impose a great deal of structure on the politics of rulemaking, making it well-suited for quantitative study (D. Carpenter et al. 2020). Agencies must publish draft rules and solicit public comments, which are entered into the public record (unless they contain proprietary information). Both draft and final rules generally include a preamble detailing the agency’s authority and reasoning in addition to specific modifications to the U.S. Code. Indeed draft rules are often fully formed policy documents (W. West 2005; S. W. Yackee 2012). This allows researchers to assess changes between draft and final rules (as I do in Chapters 3 and 4).

After the end of the comment period, the agency usually publishes a Final Rule, which carries the force of law, similar to legislative statutes. The process of publishing a draft rule includes responding to any substantive comments received on the rule. There is no legal requirement for agencies to change final rules in response to comments, and rules are often unchanged from their draft (Kerwin and Furlong 2011). As S. W. Yackee (2019) puts it, “current law provides the public the right to participate in—but not the right to influence—rulemaking” (p. 40). However, accusations that an agency failed to address relevant comments are frequently the ground for lawsuits challenging rules as arbitrary—that is, lacking legal authority because they failed to adhere to technocratic rationality prescribed by the APA and subsequent court decisions interpreting it.

At the same time, APA requirements have created an extremely legalistic and technocratic form of discourse, leading agency policymaking to be dominated by lawyers and scholarship on rulemaking to be dominated by legal scholars.

1.1.2.2 Expertise as a Basis of Authority

With hundreds of specialized agencies staffed by career specialists, the U.S. federal bureaucracy has expertise that the legislative branch (in its current form) can only approach by borrowing career agency officials to help write legislation (Mills and Selin 2016). Congress often delegates authority to agencies because of their particular expertise (Weingast 1984; Bawn 1995; David Epstein and O’Halloran 1994; Huber and Shipan 2002; D. P. Carpenter and Krause 2012). Agency officials, in turn, often base their decisions on even more specialized expert advisory committees (Lavertu and Weimer, n.d.).

A reputation for expertise can increase agencies’ autonomy and power and thus the legitimacy of their policies (D. P. Carpenter 2001). Agencies almost always appeal to scientific authority to give policies legitimacy. Indeed, reviewing courts often require that policies are justified based on expertise rather than politics. Courts are more likely to defer to policy decisions made by agency officials with more expertise (David Epstein and O’Halloran 1994).

In part because of its normative power, technical jargon may be employed strategically to avoid oversight and reduce public participation (Potter et al. 2019). Agencies vary significantly in the levels of formal expertise they employ (Clinton and Lewis 2008). Agencies that employ lower levels of formal expertise have higher levels of public participation in their policymaking processes, possibly because these policies are more accessible (Moore 2017).

1.1.3 Interest Groups Lobbying

Because certain kinds of expertise are so highly valued—legally, politically, and culturally—in bureaucratic policymaking, interest groups that are able to provide sophisticated comments on draft policies enjoy a privileged status. Lobbying the bureaucracy often means hiring scientists and lawyers. Well-resourced lobbying efforts, especially businesses, have a particular advantage (J. W. Yackee and Yackee 2006). While there is a vast scholarship on industries and other interest groups “capturing” government institutions, scholars of bureaucratic policymaking have shifted to the more flexible concept of interest group influence (S. W. Yackee 2013), recognizing that “capture” is often applied unevenly (S. W. Yackee 2021).

Although business interests participate at a higher rate and are more influential than public interest groups (J. W. Yackee and Yackee 2006), agencies do not always accommodate business groups (Daniel E. Walters 2019b). When the threat of electoral accountability is greater, agencies may be more likely to serve the interests of the public, even if they impose costs on industry (Miller, Witko, and Woods 2018).

Interest groups play a key role in an agency’s ability to make policy. Agencies secure independent political power and thus autonomy by forming symbiotic relationships with constituent groups (D. P. Carpenter 2001, 2014). Interest group pressure can give agency officials political support and cover from political opposition and thus affect bureaucratic policymaking. Interest group campaigns can sway the media (D. P. Carpenter 2002) and public opinion (Hrebenar and Scott 2015). Groups also shape political oversight from the White House and (S. F. Haeder and Yackee 2015) and funding from Congress (Jeffrey M. Berry and Wilcox 2018). Networks of interest groups and agencies not only resist influence from the president and Congress but reform the systems of formal and informal authority governing agency policymaking (Rhodes 1996).

Because each agency is embedded in unique issue networks and advocacy coalitions (Sabatier 1988), the politics of bureaucratic policymaking takes different forms at each. For example, agencies vary significantly in the scope and scale of stakeholder involvement in their policy processes (J. W. Yackee and Yackee 2006; Moore 2017). Indeed, as I show in chapter 2, some agencies face vastly disproportionate levels of public pressure. Agencies cultures and issue networks also lead to distinct ideological biases (Richardson, Clinton, and Lewis 2017). In Chapter 4, I show that agencies have different levels of receptivity to groups raising distributive justice concerns.

1.1.4 Public Pressure in Bureaucratic Policymaking

Despite our increasingly robust understanding of interest group lobbying and pressure in bureaucratic policymaking, scholars have yet to articulate a role for “outside” lobbying strategies like public pressure campaigns. Existing theories neither explain nor account for the contentious politics that occasionally inspire millions of people to respond to calls for public input on draft agency policies. Like other forms of mass political participation, such as protests and letter-writing campaigns, mass public comments on draft agency rules provide no new technical information. Nor do they wield any formal authority to reward or sanction bureaucrats, as comments from members of Congress might. The number on each side, be it ten or ten million, has no legal import for an agency’s response. Because they lack both technical information and formal authority, political scientists largely dismiss public pressure campaigns as epiphenomenal to interest group bargaining and principal-agent constraints. As a result, normative and prescriptive debates over the role of mass public engagement in bureaucratic policymaking have little empirical evidence to draw upon.

Political science scholarship on public pressure campaigns targeting the bureaucracy is extremely limited. Early scholarship on the topic suggested that form letters differ from other comments (Schlosberg, Zavestoski, and Shulman 2007) and suggested that mass comments may be related to longer rulemaking processes (Shapiro 2008). A recent wave of scholarship has shown that agencies that use high levels of expertise receive fewer comments (Moore 2017) and that form comments are less likely to be cited by agencies and are less associated with policy change than sophisticated comments (Steven J. Balla et al. 2020). Additionally, several studies describe mass comment campaigns at the Environmental Protection Agency (Potter 2017a; Steven J. Balla et al. 2018). Small adjacent literatures in information technology and public administration journals document fraud in the public comment process (Rinfret et al. 2021) and inadequate training to deal with fraud (Rinfret and Cook 2019). I discuss each of these studies more extensively as they relate to each of the following empirical chapters, most extensively in Section 2.2.2.1.

1.1.5 Administrative Law Scholarship

In contrast to political scientists, legal scholars have long debated what to make of mass commenting in rulemaking. In 2018, the Administrative Conference of the United States (ACUS) identified public pressure campaigns (“mass commenting”)" as a top issue in administrative law. In their report to ACUS, Sant’Ambrogio and Staszewski (2018) conclude,

The ‘mass comments’ occasionally submitted in great volume in highly salient rulemakings are one of the more vexing challenges facing agencies in recent years. Mass comments are typically the result of orchestrated campaigns by advocacy groups to persuade members or other like-minded individuals to express support for or opposition to an agency’s proposed rule. (p. 21)

Most administrative law scholars focus on reforms to help agencies collect more useful information (Cynthia R. Farina et al. 2011; Cynthia R. Farina, Newhart, and Heidt 2014; Rauch 2016). The ACUS report “explores agency strategies to enhance public engagement prior to and during informal rulemaking. It seeks to ensure that agencies invest resources in a way that maximizes the probability that rulewriters obtain high-quality public information” (p. 171). Among other things, this committee is debating how best to gather “quality public information” (p. 4), how “to get new people/groups into the real or virtual room” (Cynthia R. Farina 2018, 1), and whether broad engagement is even desirable on all rules (White 2018).

Administrative law scholars have explored these questions theoretically for decades, but only a few offer empirical analysis. Mendelson (2011) finds that agencies often discard non-technical comments but argues that they should be given more weight. Others worry that mass commenting distracts agencies from good policy and the broader public interest (Coglianese 2006). Cynthia R. Farina et al. (2012, 112) claim that “[Mass] comments typically are neither factually informative nor reliable indicators of citizens’ informed value preferences.” Some even call them “spam” (Steven J. Balla et al. 2018; Noveck 2004). In this prevailing view, “high-quality” and “relevant” mean novel technical information, not opinions. Herz (2016, 208) concludes “The goal of e-rulemaking is to more fully capture such credible, specific, and relevant information, not to solicit the views of random, self-nominating members of the public.” Similarly, Dmitry Epstein, Heidt, and Farina (2014, 4) dismiss mass comments as “effectively, votes rather than informational or analytical contributions. Rulemaking agencies are legally required to make policy decisions based on fact-based, reasoned analysis rather than majority sentiment; hence, even hundreds of thousands of such comments have little value in the rulemaking process.” Notably, the ACUS draft recommendations on “Mass and Fake Comments in Agency Rulemaking” suggests that “effective comments” give “reasons rather than just reactions” (ACUS 2018, 33). If true, most public reactions to proposed rules, such as those expressed in the mass comments generated by public pressure campaigns, would not affect rulemaking.

Early optimism among legal scholars that the internet would “change everything” (Johnson 1998) and that “cyberdemocracy” would enable more deliberative rulemaking has faded. While commenting and mobilizing others to comment has become easier, Coglianese (2006) concludes that little else has changed. The prediction that the internet would primarily facilitate more engagement among the like-minded (Sunstein 2001) has largely been correct. In this sense, the “quality” of discourse has not improved.

Even scholars who suggest reforms aimed at “regulatory democracy” aim to increase the “sophistication” of ordinary peoples’ comments (e.g., Cuéllar 2005; Johnson 2013). For example, Noveck (2004) is critical of “notice and spam,” arguing instead for “participative practices—methods for ‘doing democracy’ that build the skills and capacity necessary for citizens, experts, and organizations to speak and to be heard. Rulemaking, after all, is a communicative process involving a dialogue between regulators and those affected by regulation” (Noveck 2005, pg. 3). These reformers see mass expressions of opinion as worse than unhelpful. They argue that we need better, more sophisticated citizens to engage in informed discourse that tells policymakers things they do not already know.

This scholarship has improved the theory and practice of policy learning in bureaucratic policymaking. But a focus on sophisticated deliberation and technical information overlooks the potential role of political information—information about the political context in which policymakers make decisions.2 Whereas administrative law scholars have focused on “how technology can connect the expertise of the many to the power of the few” (Noveck 2009, 14), I ask whether it may also connect the power of the many to the decisions of the few.

1.2 Outline of the Dissertation

How, if at all, should scholars incorporate mass engagement into models of bureaucratic policymaking?

I take up a part of this question in each of the following chapters. In Chapters 2-4, I develop and test theories about the roles of individuals, organizations, coalitions, and social movements in bureaucratic policymaking. Chapter 5 concludes with remarks about the implications for my analysis for ongoing debates over potential reforms to the policy process.

Each chapter draws on different literatures to better understand bureaucratic policymaking. Chapter 2 integrates literatures on interest-group mobilization and bureaucratic politics to understand why public pressure campaigns target agencies in the first place. Chapter 3 focuses squarely on the classic bureaucratic politics question of interest group influence in policymaking but expanded to account for public pressure campaigns. Chapter 4 brings in the literature on social movement pressure to show that pressure campaigns are more than a lobbying tactic; they are also an institutionalized form of contentious politics over the distribution of governmental power.

Chapter 2, “Why Do Agencies (Sometimes) Get So Much Mail?” addresses who participates in public pressure campaigns and why. Are public pressure campaigns, like other lobbying tactics, primarily used by well-resourced groups to create an “astroturf” impression of public support? Or are they better understood as conflict expansion tactics used by less-resourced “grassroots” groups? I find that mass comment campaigns are almost always a conflict expansion tactic. Furthermore, I find no evidence of negativity bias in public comments. While most comments opposed proposed rules during the Trump administration, most comments supported proposed rules during the Obama administration. This is because public comments tend to support Democratic policies and oppose Republican policies, reflecting the asymmetry in mobilizing groups.

Chapter 3, “Do Public Pressure Campaigns Influence Policy?” leverages a mix of hand-coding and computational text analysis methods to assess whether public pressure campaigns increase lobbying success. To measure lobbying success, I develop computational methods to identify lobbying coalitions and estimate their effect on each rule posted for comment on regulations.gov. I then validate these methods against a random sample of rules, hand-coded for whether each lobbying coalition got the policy outcome they sought. Finally, I assess potential mechanisms by which mass public engagement may affect policy. I focus on congressional oversight as a mediator in policy influence, i.e., the extent to which public pressure campaigns affect policy indirectly through their effects on legislators’ oversight behaviors. I find that public pressure campaigns are correlated with congressional attention but have little relationship with policy outcomes.

Chapter 4, “The Environmental Justice Movement and Bureaucratic Policymaking,” examines the discursive effects of environmental justice claims both qualitatively and quantitatively. I write about the role of Native activists and environmental groups in shaping federal environmental regulations. I find that agencies are more likely to add language addressing environmental justice in their final rules when public comments raise environmental justice concerns.

Chapter 5 concludes with implications for theories of bureaucratic policymaking and future research. I then review dominant ways of thinking about public comment periods and proposed reforms to participatory processes in light of the empirical evidence in the previous chapters. I start with a sketch of the various positions staked out by administrative law scholars, each rooted in different theories of democracy. I then review several specific challenges and proposed reforms to the policy process.

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  1. As imagined by R. A. Dahl (1989), mini-publics are deliberative and representative bodies of individuals selected at random. Besides juries, however, randomly selected deliberative bodies are rare. Instead, citizens more often engage in government decisions when given opportunities to opt-in, such as hearings, petitions, and public comment periods. These mechanisms of civic engagement generate a different, more contentious flavor of public input than the discourse imagined by scholars who focus on deliberation.↩︎

  2. But see insights from Golden (1998), Nelson and Yackee (2012), Rauch (2016), and Potter (2017a) on political information, Cuéllar (2005) on participation and voice, and Reich (1966) and Seifter (2016) on representation, which I review in 2.2.↩︎