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Everything you said makes sense and seems accurate, except for one important detail: while the agencies aren't required to consider or obey the weight of public

Everything you said makes sense and seems accurate, except for one important detail: while the agencies aren't required to consider or obey the weight of public opinion, on issues with significant public interest they ought to voluntarily consider public opinion (even if they choose to reject it). After all, they serve the public despite the indirect accountability, and often there is more than one path which the experts deem viable. Public preference can be an appropriate in choosing among the viable paths. In this situation, when the coordinated fake comments line up with the governing politicians' views, and when both run contrary to the weight of real comments from experts and non-experts alike, it casts doubt on the genuineness of the FCC's good faith in considering even the expert public comments, and therefore on the validity of the rulemaking overall.

rayiner 8y ago
Agencies are required to exercise reasoned decision making. I’m not sure I’d agree that popularity is a “reasoned” basis for choosing one policy over another. Besides, the public does influence the agencies—by picking the President, who appoints Commissioners. Agencies are part of the executive. That’s who sets the broad regulatory agenda. I’m not sure it would be proper for agencies to end-run around that process and make policy based on public opinion directly.
- jkaplowitz 8y ago
  Popularity isn't always a reasoned basis for choosing one policy over another, no. But sometimes the priorities of the public as expressed through comment can absolutely be an element of reasoned decision making, when the experts have validated multiple approaches as acceptable and the issue has as much direct impact on & interest for the public as net neutrality. Phrased another way: if the experts say "doing A will work but have tradeoff B, while doing C will work but have tradeoff D", it's useful to know whether the country prefers B or D so that the commissioner can pick A or C accordingly. The independence of agencies like the FCC is meant to be independence from any individual President, so that the commissioners are less responsive to the whims of the politicians than the regular executive departments. This is why there are commissioners from both major parties, why their terms of office are longer than a presidential term of office, and why they can only be removed from office for cause rather than merely for making a decision the President didn't like. Your argument that they should defer to the wishes of the executive is exactly counter to the structure and purpose of how they're set up (even if I admit they're less independent in practice than in theory). As a point of comparison, regular executive departments are headed by a single political appointee of the president's party, who customarily offers to resign when a new party enters the White House, and who can be fired with no notice for any reason or no reason.
  - rayiner 8y ago
    > Phrased another way: if the experts say "doing A will work but have tradeoff B, while doing C will work but have tradeoff D", it's useful to know whether the country prefers B or D so that the commissioner can pick A or C accordingly. I don’t see how that’s a reasoned basis for picking one versus the other. If a court did that, would you say that was a reasoned decision? (“We have these two competing interpretations of the 14th amendment. The majority of the public opposes interracial marriage, so we will pick the interpretation that allows states to ban it.”) As to your other point, independent agencies are set up so that the President can’t micromanage specific policies. But the heads are nominated by the president precisely so the executive can set the overall regulatory agenda and philosophies. Remember the context in which the APA was created. The government regulated things like what routes freight trucks could run and the prices. You didn’t want direct executive control over those things. But broad agendas, such as ensuring more freight service to the Midwest? That was squarely within the administration’s power to influence the agency.
    - jkaplowitz 8y ago
      Courts do indeed reverse some of their rulings over time based on changing attitudes, sometimes with explicit reference to public opinion in their reasoning. So do regulatory agencies both independent and departmental. The 14th Amendment example is about statutory/constitutional interpretation, whereas the type of ruling we're discussing here is not. Agency regulations (and common law rulings by courts) often make policy judgments among multiple valid possibilities. Sometimes public attitudes appropriately affect the policy judgment, though of course not always. Of course agencies and courts don't make popular opinion the primary driver of their rulings, even when they consider it. And I'm certainly not suggesting they should. As for why the APA was created, that's a very complex question, but that seems more about systematizing the regulatory rulemaking process as delegated from Congress than about the difference between an independent agency and an executive department (both of which are governed by the APA). We're talking about the kind here that's supposedly independent.
snowwrestler 8y ago
Whether they ought to or not, regulatory agencies working on high profile actions do take public opinion into account. This happens via political appointees and the staff they hire, who are accountable to the politics that brought their administration into power. Ultimately, regulatory actions can become election issues. The idea that regulatory agencies act solely on the basis of research and law is not believable, because you see regulatory agencies directly reversing rulemakings that were enacted only a few years earlier (not coincidentally, during the previous administration). It beggars belief that objective research and non-partisan legal theory has changed so much in just a few years (again: spanning a presidential election) that regulations have to be revisited and reversed by new rulemakings. Look at it this way: if FCC rulemaking doesn't take public opinion into account, why did supporters of this rulemaking feel the need to stuff the comment box with a bunch of fake, identical, supportive comments? They should have had no reason to do that, since the rulemaking was in their favor and (supposedly) being done for an objectively right reason. But the truth is, they feared the politics of it and wanted to create a counter-story that blunted the appearance of how unpopular this rulemaking was.
- deleted 8y ago
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- jkaplowitz 8y ago
  I think we're agreeing and you probably meant to reply to the other person I was discussing with. If we're disagreeing, let me know and I'll reread.
  - snowwrestler 8y ago
    Just adding on to/expanding upon your comment
- rayiner 8y ago
  Say you’re asked to head a team to build an operating system kernel. You will use your expert judgment, and that will include not just facts and data, but your philosophy. Agile or waterfall? Micro kernel or monolithic kernel? The decisions are not going to be a neutral function of the facts on the ground, but your overall philosophy. But you probably wouldn’t base those decisions on polling the general public!

rayiner 8y ago

Agencies are required to exercise reasoned decision making. I’m not sure I’d agree that popularity is a “reasoned” basis for choosing one policy over another. Besides, the public does influence the agencies—by picking the President, who appoints Commissioners. Agencies are part of the executive. That’s who sets the broad regulatory agenda. I’m not sure it would be proper for agencies to end-run around that process and make policy based on public opinion directly.

jkaplowitz 8y ago
Popularity isn't always a reasoned basis for choosing one policy over another, no. But sometimes the priorities of the public as expressed through comment can absolutely be an element of reasoned decision making, when the experts have validated multiple approaches as acceptable and the issue has as much direct impact on & interest for the public as net neutrality. Phrased another way: if the experts say "doing A will work but have tradeoff B, while doing C will work but have tradeoff D", it's useful to know whether the country prefers B or D so that the commissioner can pick A or C accordingly. The independence of agencies like the FCC is meant to be independence from any individual President, so that the commissioners are less responsive to the whims of the politicians than the regular executive departments. This is why there are commissioners from both major parties, why their terms of office are longer than a presidential term of office, and why they can only be removed from office for cause rather than merely for making a decision the President didn't like. Your argument that they should defer to the wishes of the executive is exactly counter to the structure and purpose of how they're set up (even if I admit they're less independent in practice than in theory). As a point of comparison, regular executive departments are headed by a single political appointee of the president's party, who customarily offers to resign when a new party enters the White House, and who can be fired with no notice for any reason or no reason.
- rayiner 8y ago
  > Phrased another way: if the experts say "doing A will work but have tradeoff B, while doing C will work but have tradeoff D", it's useful to know whether the country prefers B or D so that the commissioner can pick A or C accordingly. I don’t see how that’s a reasoned basis for picking one versus the other. If a court did that, would you say that was a reasoned decision? (“We have these two competing interpretations of the 14th amendment. The majority of the public opposes interracial marriage, so we will pick the interpretation that allows states to ban it.”) As to your other point, independent agencies are set up so that the President can’t micromanage specific policies. But the heads are nominated by the president precisely so the executive can set the overall regulatory agenda and philosophies. Remember the context in which the APA was created. The government regulated things like what routes freight trucks could run and the prices. You didn’t want direct executive control over those things. But broad agendas, such as ensuring more freight service to the Midwest? That was squarely within the administration’s power to influence the agency.
  - jkaplowitz 8y ago
    Courts do indeed reverse some of their rulings over time based on changing attitudes, sometimes with explicit reference to public opinion in their reasoning. So do regulatory agencies both independent and departmental. The 14th Amendment example is about statutory/constitutional interpretation, whereas the type of ruling we're discussing here is not. Agency regulations (and common law rulings by courts) often make policy judgments among multiple valid possibilities. Sometimes public attitudes appropriately affect the policy judgment, though of course not always. Of course agencies and courts don't make popular opinion the primary driver of their rulings, even when they consider it. And I'm certainly not suggesting they should. As for why the APA was created, that's a very complex question, but that seems more about systematizing the regulatory rulemaking process as delegated from Congress than about the difference between an independent agency and an executive department (both of which are governed by the APA). We're talking about the kind here that's supposedly independent.

snowwrestler 8y ago

Whether they ought to or not, regulatory agencies working on high profile actions do take public opinion into account. This happens via political appointees and the staff they hire, who are accountable to the politics that brought their administration into power. Ultimately, regulatory actions can become election issues. The idea that regulatory agencies act solely on the basis of research and law is not believable, because you see regulatory agencies directly reversing rulemakings that were enacted only a few years earlier (not coincidentally, during the previous administration). It beggars belief that objective research and non-partisan legal theory has changed so much in just a few years (again: spanning a presidential election) that regulations have to be revisited and reversed by new rulemakings. Look at it this way: if FCC rulemaking doesn't take public opinion into account, why did supporters of this rulemaking feel the need to stuff the comment box with a bunch of fake, identical, supportive comments? They should have had no reason to do that, since the rulemaking was in their favor and (supposedly) being done for an objectively right reason. But the truth is, they feared the politics of it and wanted to create a counter-story that blunted the appearance of how unpopular this rulemaking was.

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jkaplowitz 8y ago
I think we're agreeing and you probably meant to reply to the other person I was discussing with. If we're disagreeing, let me know and I'll reread.
- snowwrestler 8y ago
  Just adding on to/expanding upon your comment
rayiner 8y ago
Say you’re asked to head a team to build an operating system kernel. You will use your expert judgment, and that will include not just facts and data, but your philosophy. Agile or waterfall? Micro kernel or monolithic kernel? The decisions are not going to be a neutral function of the facts on the ground, but your overall philosophy. But you probably wouldn’t base those decisions on polling the general public!