In December 2015, the Government Accountability Office (GAO) concluded that the Environmental Protection Agency’s (EPA’s) use of various social media tools in a rulemaking under the Clean Water Act violated prohibitions in federal appropriations laws against publicity, propaganda, and lobbying. Although academics previously explored whether the use of technology in rulemaking might violate the Administrative Procedures Act (APA), the Paperwork Reduction Act, or the Federal Advisory Committee Act, none predicted that one of the first firestorms surrounding the use of social media in rulemaking would arise out of federal appropriations laws. ...
As the Administrative Conference of the United States (ACUS) recently recommended, therefore, agencies should think carefully about what legitimate goals they expect to achieve through the use of social media in rulemaking before embarking on rulemaking and develop a strategy for using social media tools in a manner that best achieves those legitimate goals.
This Article examines the benefits of using social media in rule-making, the limitations imposed on the use of social media by appropriations laws and the APA, and the practical considerations involved in choosing the right mix of social media tools for rulemaking. Part I of the Article outlines the various goals that agencies might have when choosing to use social media tools in rulemaking. Part II explores the variety of social media tools that are available to agencies and provides a brief overview of federal support for the use of those tools in rulemaking. Part III examines the extent to which social media tools can actually achieve the goals that motivate agencies to use them. Part IV outlines the limits imposed on agencies’ use of social media by appropriations laws, and Part V outlines the APA challenges that might be raised if agencies use social media to evan-gelize and contour information in the rulemaking process. Finally, Part VI provides some concluding suggestions regarding the appropriate use of social media tools in rulemaking.
While critics of the EPA Waters of the United States (WOTUS) rule vigorously chastised the agency for its ‘illegal activity,’ a close reading of the GAO report indicates that the agency’s violations of ap-propriations rules were relatively minor and could be easily avoided in the future. Despite the outcry in the wake of the report, an analysis of the appropriations legislation demonstrates that it poses very few re-strictions, in practice, on agencies’ use of social media in rulemaking.
Stephen M. Johnson, #BetterRules: The Appropriate Use of Social Media in Rulemaking, 44 Fla. St. U. L. Rev. 1379 (2017) .