What Public Comments During Rulemaking Do (and Why)

Abstract

Public comments on proposed federal regulations are thought to influence bureaucratic policy choices, but why? While reelection incentives give politicians straightforward reasons for catering to public preferences, regulators lack similarly direct incentives to accede to demands from stake-holders. We argue commenters may adopt several different tactics to try and persuade regulators. Broadly, they may either describe policy consequences or threaten the regulator with sanctions, especially by the Courts or Congress. But which tactics do members of the public – especially firms and interest groups – use during commenting, and why? We explore this question by extensive manual coding of comments submitted by strategic actors during high-stakes financial rulemaking. We find that the vast majority of comments have purely informational content, with very limited threats to involve political principals. These findings should be surprising to a literature that often presumes a model where interest group commenting is a form of bargaining in the shadow of the Courts or Congress. To assess whether this behavior is driven by the benefits of information versus the costs of threatening, we explore how the strategy of outside interests changes across the resource distribution, and analyze the litigation records of firms against these agencies. We conclude with a case study of a high-stakes policy where different kinds of interests used different strategies.