There is more ado to interpret interpretations than to interpret the things and more books upon books than upon all other subjects; we do nothing but comment upon one another. -- Michel de Montaigne
The people in the Office of Adolescent Pregnancy Programs, with 80,000 written comments sitting in front of them, know what the 16th century French philosopher was talking about.
When the Health and Human Services Department moved this spring to require doctors to notify a teen-ager's parents before dispensing contraceptive devices, the agency, thanks to a 1946 law, had to publish its proposal in the Federal Register and solicit public reaction. As a result, four staffers have been opening, sorting, analyzing and summarizing comments for nearly six months.
The sheer volume of comments produced by this proposal is unusual, but the administrative procedure that made them possible is familiar to everyone who writes or seeks to influence government regulations.
Except in emergencies and special cases, the federal government must announce its intentions and invite response every time it tries to make or change a rule. This often means a time-consuming, exasperating and predictable ritual for everyone involved -- regulators, lobbyists and citizens alike, according to those familiar with the procedure. Yet a recent effort to short-circuit the process has met with a strongly negative response by some of the same people who find it most exasperating.
Both the conservative American Medical Association and its frequent adversary, Ralph Nader's Health Research Group, have written to oppose an HHS proposal to bypass the "notice and comment" procedure on loan, benefit and grant regulations when "the delay that would result from such procedures would impair the attainment of the program." Of the 1,300 comments received so far, "the large majority are negative," said Terry Coleman of the HHS General Counsel's office.
Why does this procedural issue matter so much to so many people? According to lobbyists, government officials and experts in administrative law, there are a variety of reasons, both theoretical and practical.
Philosophically, "It's important for the legitimacy of government to say, 'We will listen to anybody about this issue,' " said a former Carter administration regulatory expert. "I think it is fundamental that people have a chance to participate in decisions, however marginal that participation may be."
That's the theory. In practice, according to one lawyer-lobbyist who often drafts comments for a variety of regulatory agencies, "comments rarely change minds."
"The secondary purpose is establishing something in the record which might be useful if you want to challenge a rule in court later. . . . Due process requires agencies to give due weight to all comments."
But not all comments can be weighed the same way. Take the situation of the Federal Energy Regulatory Commission, which sought comments to guide possible changes in the price structure for natural gas. More than 700 comments were filed, most -- as is usual across the government -- within hours of the deadline.
The Texas Energy and Natural Resouces Advisory Council filed a 53-page comment with a 21-page appendix giving a history of natural gas development and the applicable laws. An industry group called Indicated Producers filed three volumes of material weighing more than five pounds; the index alone ran seven pages.
Another 500 comments were written with the same typewriter but signed by different individuals, and each began: "As a consumer of natural gas I have been very concerned about the ever-increasing price of fuel. . . ." All had been solicited by the Citizen/Labor Energy Coalition, a Washington lobbying group.
"We wanted to alert a lot of people who don't ordinarily participate in rulemaking. We wanted at least to let the agency know that these people were willing to sign their names to our statement," said Ed Rothschild of the Citizen/Labor organization.
Groups like this, who use a comment period as a political referendum, usually give regulatory officials few facts to consider but effectively convey the volatility of an issue. "This sort of thing is far more influential in terms of indicating the strength of the opinions held than giving us a particular view of the shape of the world and answering the substantive questions we've asked," said Richard Wilson, an FERC official who has analyzed many of these comments.
Mike Roudemeyer, a staffer at the Federal Trade Commission, agrees. As a procedural device, he said, the comment period works to the benefit of lobbyists who object to something an agency proposes to do.
"Using comments as a referendum, a vote, that's not really very effective," Roudemeyer added. Yet when a friend suggested that he write HHS's Office of Adolescent Pregnancy Programs protesting the proposed rule on parental consent, he was tempted.
"I saw it as a political rule," Roudemeyer said, "and in that situation you should bring political pressure to bear."