[House Hearing, 116 Congress] [From the U.S. Government Publishing Office] FAKE IT TILL THEY MAKE IT: HOW BAD ACTORS USE ASTROTURFING TO MANIPULATE REGULATORS, DISENFRANCHISE CONSUMERS, AND SUBVERT THE RULEMAKING PROCESS ======================================================================= HEARING BEFORE THE SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS OF THE COMMITTEE ON FINANCIAL SERVICES U.S. HOUSE OF REPRESENTATIVES ONE HUNDRED SIXTEENTH CONGRESS SECOND SESSION __________ FEBRUARY 6, 2020 __________ Printed for the use of the Committee on Financial Services Serial No. 116-84 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] ______ U.S. GOVERNMENT PUBLISHING OFFICE 42-808 PDF WASHINGTON : 2021 HOUSE COMMITTEE ON FINANCIAL SERVICES MAXINE WATERS, California, Chairwoman CAROLYN B. MALONEY, New York PATRICK McHENRY, North Carolina, NYDIA M. VELAZQUEZ, New York Ranking Member BRAD SHERMAN, California ANN WAGNER, Missouri GREGORY W. MEEKS, New York FRANK D. LUCAS, Oklahoma WM. LACY CLAY, Missouri BILL POSEY, Florida DAVID SCOTT, Georgia BLAINE LUETKEMEYER, Missouri AL GREEN, Texas BILL HUIZENGA, Michigan EMANUEL CLEAVER, Missouri STEVE STIVERS, Ohio ED PERLMUTTER, Colorado ANDY BARR, Kentucky JIM A. HIMES, Connecticut SCOTT TIPTON, Colorado BILL FOSTER, Illinois ROGER WILLIAMS, Texas JOYCE BEATTY, Ohio FRENCH HILL, Arkansas DENNY HECK, Washington TOM EMMER, Minnesota JUAN VARGAS, California LEE M. ZELDIN, New York JOSH GOTTHEIMER, New Jersey BARRY LOUDERMILK, Georgia VICENTE GONZALEZ, Texas ALEXANDER X. MOONEY, West Virginia AL LAWSON, Florida WARREN DAVIDSON, Ohio MICHAEL SAN NICOLAS, Guam TED BUDD, North Carolina RASHIDA TLAIB, Michigan DAVID KUSTOFF, Tennessee KATIE PORTER, California TREY HOLLINGSWORTH, Indiana CINDY AXNE, Iowa ANTHONY GONZALEZ, Ohio SEAN CASTEN, Illinois JOHN ROSE, Tennessee AYANNA PRESSLEY, Massachusetts BRYAN STEIL, Wisconsin BEN McADAMS, Utah LANCE GOODEN, Texas ALEXANDRIA OCASIO-CORTEZ, New York DENVER RIGGLEMAN, Virginia JENNIFER WEXTON, Virginia WILLIAM TIMMONS, South Carolina STEPHEN F. LYNCH, Massachusetts VAN TAYLOR, Texas TULSI GABBARD, Hawaii ALMA ADAMS, North Carolina MADELEINE DEAN, Pennsylvania JESUS ``CHUY'' GARCIA, Illinois SYLVIA GARCIA, Texas DEAN PHILLIPS, Minnesota Charla Ouertatani, Staff Director Subcommittee on Oversight and Investigations AL GREEN, Texas Chairman JOYCE BEATTY, Ohio ANDY BARR, Kentucky, Ranking STEPHEN F. LYNCH, Massachusetts Member NYDIA M. VELAZQUEZ, New York BILL POSEY, Florida ED PERLMUTTER, Colorado LEE M. ZELDIN, New York, Vice RASHIDA TLAIB, Michigan Ranking Member SEAN CASTEN, Illinois BARRY LOUDERMILK, Georgia MADELEINE DEAN, Pennsylvania WARREN DAVIDSON, Ohio SYLVIA GARCIA, Texas JOHN ROSE, Tennessee DEAN PHILLIPS, Minnesota WILLIAM TIMMONS, South Carolina C O N T E N T S ---------- Page Hearing held on: February 6, 2020............................................. 1 Appendix: February 6, 2020............................................. 31 WITNESSES Thursday, February 6, 2020 Bagdoyan, Seto J., Director, Forensic Audits and Investigative Service, U.S. Government Accountability Office (GAO)........... 6 Balla, Steven, Associate Professor, George Washington University. 11 Gonzalez-Brito, Paulina, Executive Director, California Reinvestment Coalition (CRC)................................... 8 Naylor, Bartlett Collins, Financial Policy Advocate, Public Citizen........................................................ 9 Noveck, Beth Simone, Professor and Director, GovLab, Tandon School of Engineering, New York University..................... 4 APPENDIX Prepared statements: Bagdoyan, Seto J............................................. 32 Balla, Steven................................................ 50 Gonzalez-Brito, Paulina...................................... 53 Naylor, Bartlett Collins..................................... 125 Noveck, Beth Simone.......................................... 136 FAKE IT TILL THEY MAKE IT: HOW BAD ACTORS USE ASTROTURFING TO MANIPULATE REGULATORS, DISENFRANCHISE CONSUMERS, AND SUBVERT THE RULEMAKING PROCESS ---------- Thursday, February 6, 2020 U.S. House of Representatives, Subcommittee on Oversight and Investigations, Committee on Financial Services, Washington, D.C. The subcommittee met, pursuant to notice, at 2:38 p.m., in room 2128, Rayburn House Office Building, Hon. Al Green [chairman of the subcommittee] presiding. Members present: Representatives Green, Beatty, Perlmutter, Tlaib, Garcia of Texas, Phillips; Barr, Posey, Zeldin, Loudermilk, Davidson, Rose, and Timmons. Also present: Representative Porter. Chairman Green. The Oversight and Investigations Subcommittee will come to order. The title of today's hearing is, ``Fake It Till They Make It: How Bad Actors Use Astroturfing to Manipulate Regulators, Disenfranchise Consumers, and Subvert the Rulemaking Process.'' Without objection, the Chair is authorized to declare a recess of the subcommittee at any time. Also, without objection, members of the full Financial Services Committee who are not members of this subcommittee may participate in today's hearing for the purposes of making an opening statement and questioning the witnesses. The Chair now recognizes himself for 5 minutes for an opening statement. This hearing will examine a problem referred to as astroturfing, which is the practice of creating the false appearance of grassroots support for a particular policy or position where none exists, often to the benefit of shadowy, well-financed interests, and to the detriment of the general public. Investigations have revealed that astroturfing is used by unidentified entities to sway regulators who rely upon the integrity of the public comments they receive in the rulemaking process. As we sit here today, according to the SEC Chair, Chair Clayton, the SEC has launched an investigation of the submission of multiple fraudulent comments in a recent rulemaking, comments that were expressly relied upon by Chair Clayton and the Commission as indicia of broad public support in urging the adoption of the rule. As today's testimony will highlight, there is also troubling evidence of astroturfing at other agencies charged with protecting consumers and overseeing financial institutions, including the Consumer Financial Protection Bureau (CFPB) and the Office of the Comptroller of the Currency (OCC). We have learned, and we learn every day of new ways that the Trump Administration is working across Federal agencies to roll back consumer protections, civil rights, fair housing protections, access to healthcare for low- and middle-income Americans, minorities, LGBTQ+ Americans, and others. We cannot allow this ever-expanding injustice to be compounded by nefarious actors who would manipulate regulators by fabricating comments. Today, we are fortunate to have a panel of distinguished witnesses who will describe the Federal notice and comment framework; the flaws and opacity inherent in the current public comment process; the pernicious impacts of these flaws on the rules and rule makers; and the potential of such flaws to cast doubt upon the legitimacy and integrity of the Federal rulemaking process by this Administration. At a time when Americans, more than ever, are questioning the propriety of actions taken by Federal agencies and our most senior government officials, it is especially important that we fully understand the scope of this problem, its implications, and what we must do to restore trust in the integrity of public comments, rulemakings, and our regulators. I now recognize the ranking member of the subcommittee, Mr. Barr, for a 5-minute opening statement. Mr. Barr. Thank you, Mr. Chairman, and thank you to our witnesses for appearing today. A key tenet of the Administrative Procedure Act's notice and comment period is the availability of a forum for citizens and interested parties to voice their thoughts, concerns, and opinions on proposed rules that will impact them or their businesses. As legislators, we provide oversight over the regulatory agencies as they implement the laws we write, but public input on pending rules is also important to allow regulators to hear directly from all interested stakeholders. Today, we are examining the impact on rulemaking of so- called astroturfing or fake grassroots campaigns. Large coordinated letter-writing campaigns are not new. They have been a key strategy of interest groups across the political spectrum for decades. Because letter-writing campaigns and grassroots advocacy are commonplace, regulators don't evaluate the comments on numbers alone. They have mechanisms in place to de-duplicate comments and extract the valuable observations from each comment. Recently, the Majority sent Comptroller Otting and FDIC Chairwoman McWilliams identical letters about the public comment period for the proposed Community Reinvestment Act (CRA)rulemaking. The letters ask for information about how the agencies vet public comments based on a report that an outside group may have submitted fishy comments during a completely different rulemaking at a completely different agency. When Comptroller Otting was before the committee last week, I asked him directly if there was any evidence of fabricated comments and how, if at all, such comments could affect his agency's development of a new rule. He said that this is a non- issue, that the OCC has a system in place to review comments on their substance, and it doesn't evaluate comments based solely upon sheer volume. Earlier this week, Comptroller Otting responded to Chairwoman Waters and echoed these same observations. Does the concern over potential astroturfing really warrant this hearing? I would submit that the answer is no. The Majority's letter and, frankly, this entire hearing are thinly-veiled attempts to slow the rulemaking process on a much-needed modernization to help our communities simply because the Majority doesn't like the regulators writing the rules. While not perfect, the FDIC's and the OCC's proposal to reform the Community Reinvestment Act regulations makes important strides to bring the CRA into the 21st Century without compromising the important and original intent of the law to serve communities across the country. It provides much-needed clarity for regulated entities to understand how they will be evaluated and what activities will qualify for CRA credit. It appropriately accounts for the expansion of online banking and allows for CRA deserts in rural or otherwise underserved areas to benefit from investment in their communities. I am fortunate to have many great community bankers in my district in central and eastern Kentucky. I am proud of how they partner with their neighbors to drive the local economy. They are committed to helping the low- and moderate-income borrowers in the areas they serve, and to make investments that will benefit their communities at large. These are people who go to work every day happy to serve their communities. They aren't simply trying to get, ``double credit for doing half of their homework,'' as one of the witnesses suggested. More clarity on how they are evaluated for the CRA and the modernizations under the FDIC and OCC proposal could allow them to do even more. As we hear from our witnesses today, I would urge my colleagues to be cognizant of potential unintended consequences. Do we really want to restrict citizens' opportunities to weigh in on important regulations? Is it worth silencing groups of stakeholders and infringing upon their First Amendment rights, their rights to participate in the administrative process, just because you don't like the regulators who are writing the rules? Public feedback on important rulemakings is critical to ensuring regulators get it right. And should Congress really be in the business of evaluating whether or not a particular comment is worthy of inclusion in the record, or whether it should be excluded just because we don't like the particular regulators at the administrative agency? The idea behind the notice-and-comment rulemaking is that you invite the public to participate. You may not like all of the comments that are submitted. You may like some of the comments that are submitted. But the whole point is to have an inclusive process that allows for public input on the rulemaking process. Thank you, Mr. Chairman. I look forward to today's hearing, and, if I could, I would like to ask unanimous consent in my remaining time to insert four items into the record: a response from Comptroller Otting to the Chairwoman's January 15, 2020, letter regarding the OCC's protocols regarding comments received during the rulemaking process; a response from Chair McWilliams to the Chairwoman's January 15, 2020, letter regarding the FDIC's protocols regarding comments during the rulemaking process; and two studies written by Dr. Balla on issues pertaining to astroturfing and the public comment period. Chairman Green. Without objection, it is so ordered. Mr. Barr. Thank you, Mr. Chairman. And, finally, I ask unanimous consent to insert into the record the opening statement of the ranking member of the full Financial Services Committee, Mr. McHenry. Chairman Green. Without objection, it is so ordered. Mr. Barr. Thank you. I yield back. Chairman Green. The gentleman yields back. I welcome each of the witnesses, and I am pleased to introduce the panel. We have with us today: Beth Simone Noveck, professor and director of GovLab, at the Tandon School of Engineering, at New York University; Seto Bagdoyan, director of Forensic Audits and Investigative Service at the U.S. Government Accountability Office; Paulina Gonzalez-Brito, executive director of the California Reinvestment Coalition; Bartlett Naylor, financial policy advocate at Public Citizen; and Dr. Steven Balla, associate professor at George Washington University. Again, welcome, and thank you for being here today. The witnesses will be recognized for 5 minutes each to give an oral presentation of their testimony. And without objection, the witnesses' written statements will be made a part of the record. Once the witnesses finish their testimony, each member will have 5 minutes to ask questions. On your table, you will see three lights: green means go; yellow is the 1-minute marker, which means you are running out of time, and you should begin concluding your remarks; and red means you are out of time. With that, Professor Noveck, you are now recognized for 5 minutes for your opening statement. STATEMENT OF BETH SIMONE NOVECK, PROFESSOR AND DIRECTOR, GOVLAB, TANDON SCHOOL OF ENGINEERING, NEW YORK UNIVERSITY Ms. Noveck. Thank you, Chairman Green and Ranking Member Barr, for the opportunity to participate today. To reiterate, my name is Beth Simone Noveck, and I am a professor at the Tandon School of Engineering at New York University, where I direct The Governance Lab (GovLab), which is a nonprofit, nonpartisan research center focusing on the use of technology to improve governance and strengthen democracy. At The Governance Lab, we conduct original research that I include in the project that we have launched today, called Crowd Law for Congress, about how legislatures around the world are using new technology to enable public engagement in law, rule, and policymaking, and to provide training on how we can adapt those models in this country. I previously served as Deputy Chief Technology Officer in the Obama White House, and the Director of Open Government, but I was also senior advisor for open government to Prime Minister Cameron. However, I am appearing today in my personal capacity, based on over 20 years of designing, building, testing, and researching civic platforms for citizen engagement in democratic participation. We are here today because thousands of Federal regulations are enacted every year that touch every aspect of our lives, and under the Administrative Procedure Act, the public has a right to participate. Participation in rulemaking helps us to ensure that Federal regulations are based on the best available evidence, not just evidence that supports a single position. Obtaining information from a wider audience can make it possible to understand whether and how a regulation fulfills its legislative purpose. However, technology has created challenges for public participation. Regulations.gov has made commenting easier, but it has also inadvertently opened the floodgates, as we have heard, to fake comments, or what I like to call ``notice-and-spam.'' But it has also created the challenge of voluminous comments, comments that are then hard for agencies to read and parse. A key example is the 2017 FCC net neutrality rulemaking, which had 22 million comments. A second and related problem is that of duplicative comments; only 6 percent of the comments filed in that FCC rulemaking were actually unique. But there are remedies to those challenges. Using artificial intelligence (AI), researchers have developed tools that can extract meaning and summarize large bodies of text, for instance, Google and Microsoft have already built systems that can summarize news as well as legislative bills. The recently debuted Indian news abrogation app called Inshorts automatically creates 60-word summaries of articles also using AI. CitizenLab's software for citizen engagement categorizes and clusters the text submitted, grouping similar ideas together using an approach known as topic modeling. To deal with the issue of de-duplication, Dr. Stuart Shulman created a tool called DiscoverText in 2007. Although funded by the National Science Foundation, that tool is not yet in widespread use in government. And, of course, to handle fake comments, as we will hear more about today, many people have called for using CAPTCHA and reCAPTCHA, which is designed to separate the bots from the humans, and the newest version of reCAPTCHA does not even require human intervention--no more typing of those squiggly words anymore. In short, researchers have cracked problems far more challenging than making sense of rulemaking data, and what Congress needs to mandate the use of better data science tools to make it possible for Federal agencies to make effective use of public comments, it has to go beyond fixing the problem after the fact and reimagine how public participation should work. In our research, we are tracking over 100 examples of what we call CrowdLaw, innovative uses of new technology that foster public engagement to improve the quality of lawmaking. And let me conclude with three quick examples. In 2018, the German government used a free annotation platform called Hypothes.is to sort expert feedback on the country's artificial intelligence policy, soliciting expertise from experts all around the world. Committees in the U.K. Parliament create online what they call evidence checks and invite members of the public to evaluate the evidence upon which a policy is based. And just recently, a few weeks ago in December 2019, the Brussels Regional Parliament introduced the use of citizen juries. Now, every standing committee comprises 15 parliamentarians and a random sample of 45 citizens who deliberate and formulate recommendations together. Imagine if we could introduce these innovations here. Although their current attention is focused on the problem of astroturfing and cherry picking, the current concern for regulators and overseers should not just be who signed the comment, but should be to take steps to foster new and valuable citizen engagement. Failure to redesign public participation for the digital age will only put us further behind the growing number of advanced nations that use new technology today to tap the collective intelligence and know-how of their citizens and to improve the effectiveness and the legitimacy of the rulemaking process. Thank you very much, and I look forward to your questions. [The prepared statement of Professor Noveck can be found on page 136 of the appendix.] Chairman Green. Thank you very much, Professor. At this time, the Chair will recognize Mr. Bagdoyan for 5 minutes for your opening statement, please. STATEMENT OF SETO J. BAGDOYAN, DIRECTOR, FORENSIC AUDITS AND INVESTIGATIVE SERVICE, U.S. GOVERNMENT ACCOUNTABILITY OFFICE (GAO) Mr. Bagdoyan. Thank you, Mr. Chairman. Chairman Green, Ranking Member Barr, and members of the subcommittee, I am pleased to appear before you today to discuss GAO's June 2019 report on posting practices regarding identity information and public comments during proposed Federal rulemaking. As part of our overall review, this is the first of several planned reports. Extensive data analytics work continues on the identity characteristics of all public comments submitted over a 5-year period to the 10 selected agencies we have reviewed. Additional reports will follow beginning later this year. Federal agencies publish, on average, about 3,700 proposed rules yearly and are generally required to provide interested persons an opportunity to comment on these rules. In recent years, some high-profile rulemakings have received extremely large numbers of public comments. The professor mentioned the FCC net neutrality rule, which received 22 million comments, raising questions about how agencies manage the identity information associated with such comments. The Administrative Procedure Act (APA) governs the manner in which many Federal agencies develop and issue regulations, which includes the public comment process. While the APA does not require the disclosure of identifying information from a commenter, agencies may choose on their own accounts to collect this information. Today, I will highlight our report's four principal takeaways regarding how the 10 selected agencies handle identity information and public comments during proposed rulemaking. First, regulations.gov and agency-specific comment websites collect some identity information such as name, email, or address, from commenters who choose to provide it, and also accept anonymous comments. In this regard, the APA does not require commenters to disclose identity information when submitting comments. In addition, agencies have no obligation under the APA to verify the identity of commenters should they submit such information with their comments. Second, 7 of the 10 selected agencies have some internal guidance associated with the identity of commenters, but the content and level of detail varies, reflecting differences among these agencies. The guidance most frequently relates to the comment intake or response to comment phases of the overall comment process. For example, among agencies of interest to the subcommittee, the CFPB and the SEC have guidance for intake, and the CFPB has such also for response. Third, within the discretion afforded them by the APA, selected agencies' treatment of commenters' identity information varies, particularly when posting duplicate comments, those that are identical or near-identical comment text by varied identity information. Generally, agencies told us that they: one, post all comments within the comments system; or two, maintain some comments outside of the system, such as in email file archives. However, within these broad categories, posting practices vary considerably, even within the same agency or rulemaking docket, and identity information is inconsistently presented on public websites. For instance, the SEC posts a single example of duplicate comments and indicates the total number of comments received, whereas the Center for Medicare and Medicaid Services (CMS) posts every duplicate comment individually with no indication of the total number of duplicates received. Fourth, selected agencies do not clearly communicate their practices regarding how comments and identity information are posted. According to key practices for transparently reporting government data, Federal Government websites should disclose data sources and limitations to help public users make informed decisions about how to utilize the data. In our June report, we made eight recommendations to eight different agencies in our review, including the SEC and the CFPB, to more clearly communicate to the public their policies for posting comments and associated identity information to regulations.gov and agency-specific comment websites. The agencies generally agreed with these recommendations and described actions they plan to take to implement them. Since then, the SEC has implemented its recommendation in September 2019, and the CFPB has reported planned actions to do so. Chairman Green, this concludes my remarks. I look forward to the subcommittee's questions. Thank you. [The prepared statement of Mr. Bagdoyan can be found on page 32 of the appendix.] Chairman Green. Thank you for your testimony. Ms. Gonzalez-Brito, you are now recognized for 5 minutes. STATEMENT OF PAULINA GONZALEZ-BRITO, EXECUTIVE DIRECTOR, CALIFORNIA REINVESTMENT COALITION (CRC) Ms. Gonzalez-Brito. Thank you, Chairman Green, and Ranking Member Barr, for the opportunity to testify today, and I thank the subcommittee for holding this important hearing. Good afternoon. The California Reinvestment Coalition is the largest Statewide reinvestment coalition in the country. [Speaking foreign language.] Because immigrants require it every day and contribute to building our nation. The Community Reinvestment Act (CRA) is, as Congressman Meeks described it, at its core, a civil rights law. The law is meant to address discrimination in lending based on race, known as redlining, by ensuring that banks meet the credit needs of all communities, especially low-income communities and communities of color. The significance of the public participation process articulated in the law cannot be overstated. Through public participation, communities help ensure banks meet their obligation under the law. In the OneWest-CIT mega merger of 2014, CRC, our members in southern California, and local community members engaged in the CRA's public process with the hope that, through our engagement, we could ensure that the soon too-big-to-fail bank would fulfill its CRA obligations. As community opposition to the merger grew, Comptroller of the Currency Joseph Otting, then-CEO of OneWest Bank, took the unusual step of soliciting support for the merger from his Wall Street contacts and business partners, where there is a clear conflict of interest, by asking them to submit a form letter posted on the bank's website to the bank's regulators. We were later contacted by an individual, who also sent a complaint to OneWest regulators, who was upset that an unauthorized email was submitted using his name and address in support of a bank merger he seemingly had never heard about before. The comment letter submitted in the person's name appears identical to the form letter on the OneWest website that Mr. Otting had sent to his Wall Street friends. The complaint confirmed our worst fears. Our research of the letters of support that were submitted in favor of the OneWest Bank merger uncovered a number of anomalies. Of 593 petitions in support of the OneWest merger, nearly 100 percent have Yahoo email accounts. This oddity heightened our concerns, given Yahoo's relatively small share of the email market. In addition, if the timestamps on the email are accurate, there was an extremely large number of petitions sent to the OCC and the Federal Reserve around 2 a.m. on Valentine's Day. In a review of 25 of those petitions, nearly half could not be verified by the United States Postal Service as legitimate addresses. Further research found approximately one-third of emails sent to the addresses of these supporters of the merger bounced back. How many of these so-called supporters of the merger were not supporters at all, or were not even real people, for that matter? We do not know. Mr. Otting led OneWest Bank during this merger, and serious questions remain about the integrity of the public comment process during its merger with CIT. Despite our calls for an investigation, there never was one. But we do know who benefited from this fake support: OneWest Bank did. The OneWest-CIT mega merger was ultimately approved by the bank's regulators, who cited all the letters of support in their approval order. Now, Mr. Otting is Comptroller of the Currency and charged with the oversight of the public comment process during the CRA proposed rulemaking, and we have several concerns. First, we fear that two core principles of CRA, community input and public participation, are in jeopardy under Joseph Otting's OCC. Astroturfing and fabricated comment campaigns breed distrust in the system and make it less likely or may make it less likely that the public would comment in the future. As a result, regulators may have less access to information from impacted communities about what is happening on the ground, far from regulators' offices. Regulators would then be left with the one-sided picture provided by financial institutions. We are particularly concerned, first, that the OCC approach, the public comment process, as it currently seeks comment on the proposed rule, would, if finalized, significantly harm communities and threaten a return to redlining practices. And second, the Comptroller's public statements demonstrate hostility to anyone with whom he disagrees. His quote in The Wall Street Journal demonstrated this hostility. He was quoted as saying, ``If you don't like this, you are either economically advantaged by the current structure, or you don't understand it.'' We call on the OCC to focus on ensuring a fair process that prevents astroturf campaigns from unfairly manipulating the result of its current CRA rulemaking process rather than maligning opponents of its proposal. Lastly, we continue to call for a full accounting and investigation into the fabricated comments and astroturf campaign during the 2014 OneWest-CIT merger. Until we know who is responsible for the fabricated comments supporting the bank that Comptroller Joseph Otting led, and what, if anything, was done about it, we cannot--and the OCC should not be permitted to proceed with finalizing a regulation that would curtail the impacts of the CRA. Thank you very much. [The prepared statement of Ms. Gonzalez-Brito can be found on page 53 of the appendix.] Chairman Green. Thank you for your testimony. Mr. Naylor, you are now recognized for 5 minutes. STATEMENT OF BARTLETT COLLINS NAYLOR, FINANCIAL POLICY ADVOCATE, PUBLIC CITIZEN Mr. Naylor. Chairman Green, Ranking Member Barr, members of the subcommittee, Public Citizens' 500,000 members and supporters are self-selected Americans who practice and engage in democracy on a daily basis. We are the members who figure prominently in the phone calls to your offices to vote for bills that come before this committee or on the House Floor. When some of those bills become law, we are the members who participate vigorously in the comment process to help the regulators implement those. Public Citizen members are public citizens. We are especially encouraging of engaging in this committee because the financial crash demonstrated how much damage can be done by flawed financial policy. The positions that our members espouse, we think, are widely accepted across the political spectrum: safe banking; the ability of investors to exercise property rights; and the concept that racist lending has no place in America. And so, when we see a rulemaking docket filled with comments purportedly from the grassroots that celebrate a redlining bank or that argue about reducing property rights for shareholders, we are suspicious, and when we scratch the surface of these grassroots, what we often find is plastic, is astroturf. Case in point: Shareholders have the ability to bring resolutions before a company's annual meeting. One of the popular ones is calling on companies to disclose their political spending. Sometimes these resolutions are adopted. Corporations don't like this. They haven't liked this for a long time, and they have mounted an effort to get shareholder resolutions, and Chair Clayton of the Securities and Exchange Commission answered that appeal a couple of months ago with a proposal to do just that, but he did not say that he was responding to corporate interests; no. He said that he was responding to Main Street investors, to a military veteran, to a police officer, to a retired teacher, to a retired couple who had written in. Bloomberg News surveyed these seven supposedly randomly selected letters and found them to be fake. They were from relatives of the corporate lobbyists: the uncle; the brother; the in-laws. When Chair Clayton testified before the Senate Banking Committee, Senator Van Hollen said that he had been duped. We think that may be charitable. Second case: My colleague, Ms. Gonzalez-Brito, has documented the massive fabrication of astroturf comments coming out of the OneWest-CIT merger, but why? Why would one engage in such fabrication? One possibility is buried into the merger document that said that CEO Otting was going to be paid $24 million if this merger went through. It was in the form of an employment contract that said, ``If you last 3 years, you get this much every year, but if you are terminated, then you get the full $24 million,'' and he was, in fact, terminated a few months into the merger document. What can be done? What should this committee do? First and foremost, as Public Citizen members are frequent commenters, what we would like is the glide slope from opinion to the landing path into that regulatory agency to be smooth. We do not want impediments. That said, we don't want competition with fabricated comments. Federal law already provides, under 18 U.S.C. Sec. 1001, that it is a Federal crime to misrepresent, to lie, to make fabrications to the government. Unfortunately, to our knowledge, the number of cases that have been brought under that Federal code is zero. We think, without penalties, there is no deterrence. In the case of Chair Clayton, we have already asked the Inspector General to look into why it is that he would be informed by seven fake letters. He did not reference the Public Citizen letter, the AFL-CIO letter, the CalPERS letter, the Colorado Pension Fund letter, or the Texas Pension Fund letter. He just happened to have those seven random letters. We hope, and we have reason to believe that the Inspector General will be looking into that. In conclusion, Mr. Chairman, we think that the public comment process is important, and we look forward to working with you to make sure that the likes of Public Citizen are able to continue to exercise our democracy rights. Thank you. [The prepared statement of Mr. Naylor can be found on page 125 of the appendix. Chairman Green. Thank you for your testimony. Professor Balla, you are now recognized for 5 minutes. STATEMENT OF STEVEN BALLA, ASSOCIATE PROFESSOR, GEORGE WASHINGTON UNIVERSITY Mr. Balla. Thank you. My name is Steve Balla. I am an associate professor of political science, public policy, public administration, and international affairs at George Washington University. For the past several years, along with several colleagues at GW, I have been conducting research on mass-comment campaigns in agency rulemaking. By mass-comment campaigns, we mean collections of identical and near-duplicate comments that are sponsored by organizations and submitted by group members and supporters. We asked three questions about mass-comment campaigns: Who sponsors them; what do they say; and how do agencies handle them? Now, we focus so far in our research on the Environmental Protection Agency (EPA), and the EPA is a good agency to start with in that it is systematic and transparent in the way in which it catalogs and reports mass-comment campaigns on regulations.gov. So, when the EPA identifies a mass-comment campaign, it creates a record on the website. This record includes the identity of the sponsoring organization, if that is known. It also includes a statement of the number of comments that are submitted as part of the campaign, and it includes a single illustrative example of the campaign's comments, usually through a PDF or a Word attachment. Our analysis is based on more than 1,000 mass-comment campaigns that occurred during EPA rulemakings over a recent 5-year period. So, who sponsors mass-comment campaigns? Well, there is a diverse mix of sponsoring organizations. Mass-comment campaigns are regularly sponsored by environmental advocacy groups, labor unions, and progressive organizations. Collectively, these kinds of organizations account for about 75 percent of the mass-comment campaigns in our analysis. The remaining 25 percent are mass-comment campaigns sponsored by regulated entities. In the case of the EPA, these would be the agriculture industry and the energy sector, most commonly. What do mass-comment campaigns say? Again, there is some diversity in the phenomenon. Some mass-comment campaigns are as short as a few words. They articulate a directional stance in favor of or in opposition to the proposed rule, and they say nothing else. There are other mass-comment campaigns, however, that incorporate arguments, reasoning, and data analysis. Now, on balance, mass-comment campaigns shade toward short statements of directional opinion; that is, those types of mass-comment campaigns are more common than ones that bring extensive reasoning and extensive data to bear. How does the agency handle mass-comment campaigns? Well, in response to comment documents, we find that mass-comment campaigns often get mentioned a single time, and the agency provides a brief response. By contrast, these standalone comments that we historically associate with the notice-and- comment process that might be submitted by organizations or individuals--not duplicates, not near-identical comments, but standalone comments--typically get mentioned repeatedly in response to comment documents. Why would that be the case? It is because the agency is exhibiting a practice of responding separately to each argument, each piece of evidence that is presented in the comment. And so, with more argument, with more evidence comes more extensive--i.e., more repeat attention--on the part of the agency in the response-to-comment document. In my view, these findings demonstrate that the agency is able to identify mass-comment campaigns, it is able to catalog them systematically and transparently, and it is able to respond to them in a manner that is commensurate with their substantive content. Contrary to hopes that have been articulated about mass-comment campaigns, particularly early on in the era of electronic rulemaking, I don't see mass-comment campaigns as having had a democratizing effect on the rulemaking process. That was one hope 20 years ago. I also don't see--and this, again, is contrary to fears that have been expressed about mass-comment campaigns--them burying the EPA under an unmanageable avalanche of useful information. It is my argument that, for the most part, rather than mass-comment campaigns bringing fundamental change, whether good or bad, to the rulemaking process, what has happened instead is that the agency has adopted approaches that allow it to readily incorporate mass-comment campaigns into its existing rulemaking practices. Thank you. [The prepared statement of Professor Balla can be found on page 50 of the appendix.] Chairman Green. Thank you. The Chair will now recognize the gentleman from Colorado, Mr. Perlmutter, for 5 minutes. Mr. Perlmutter. Thank you for your testimony today, and, Dr. Balla, I think you could probably ask anybody up here on this dais about mass communications and mass-comment campaigns, because we all get that, and this is part of the process, and you say, okay, I got a thousand comments on right to work, and I got 77 comments on healthy forests. They are all identical. You just deal with it. So we understand that, and your next study should be on what we get as Members of Congress. But I think the thing that I am concerned about is, from the beginning of this country with Publius and Brutus and the Federalist papers and the anti-Federalist papers, we knew they were anonymous and they wanted to speak about policy and approach to how our nation should be founded. So I am not afraid of anonymity, and I am not afraid of mass comments. What I am afraid of is liars and cheats and phony information that you get because then you are misled. Then, it does undercut the trust, and, if it is a bunch of bots sending stuff out that is slightly different and requires specific answers, I want to know they are bots. Ms. Novacek, in your testimony and sort of the research that you have done, can you explain how we might ferret out or how you would want to see us deal with sort of the bots and sort of the phoniness that may come as part of an email approach, or it may be just case by case, I don't know? How would you go about this? Ms. Noveck. Thank you for the question. I think you are asking very much the right question, that what we need to be asking as a corollary to the issue of, what do we do about the fake comments, the related or flip side of that is the question of, how do we extract the valuable meaning from this corpus of information that we have? We have a large quantity, maybe mass commenting, as Professor Balla has mentioned, maybe duplicative comments, maybe a large volume of individual comments. The thing that we need to care about, first and foremost, is this issue of, how do we make it easy for agencies and the committees that oversee them to extract the valuable meaning and to do what was the intent of the Administrative Procedure Act when it called for commenting in the rulemaking process? What I would do is I would ensure that every agency is using readily-available machine-learning tools, first to de- duplicate the comments, and the software has existed for that, funded incidentally by the Federal Government, for more than 15 years. It would allow us to first say: Let's remove all the duplicates. Second is then the issue, because, as you know from your own work, you can have nonduplicative comments, but it is still too much for your staff to read, and they have other things to do during the day, is some of these new tools for summarization are really crucial. And they are great summarization tools, not simply from the Googles and the Microsofts and the sort of high-end tech, but they are stuff--specifically, civic technologies in the citizen engagement space, and I can name you a number of free and open-source or relatively cheap tools that exist to do precisely the job that are in use in various places to do the job of summarizing citizen comments. I mention a few of them in my testimony and show some pictures to make it clear how they do the work of helping regulators extract the meaning from this volume of information. And then, in addition, I would say we have to create additional complementary fora for the reason that we want to make sure that we are hearing from diverse participants, and I mean diversity in every way. Cynthia Farina at Cornell Law School has written extensively about the lack of diversity in participation. We hear lots from businesses but not necessarily from individuals. We hear from people who are white and wealthy and educated, but not necessarily people who don't meet those criteria, and that is true for all kinds of civic participation, and people want to participate more. So research that has been done by Pugh and other groups, every survey that you look at says people would like to engage and would like to have opportunities. So, I would like to see us do more to actually create fora beyond the fill-in-the box that is available on regulations.gov to push out rules, to push out the opportunities to comment in the way that, again, other legislatures and agencies in other parts of the world and in our own backyard are beginning to innovate with using tech to create multiple opportunities for citizens to comment, and that can include expert citizens who are diverse and have life experience in general. Let me pause to let you interject there. Mr. Perlmutter. Well, I have 3 seconds, 2 seconds, 1 second. I yield back to the-- Chairman Green. The gentleman's time-- Mr. Perlmutter. --Chair, but thank you very much for your answer. Chairman Green. The gentleman's time has expired. The gentleman from Kentucky, Mr. Barr, is recognized for 5 minutes. Mr. Barr. Thank you, Mr. Chairman. Thanks for holding this hearing, and thank you to our witnesses. I was very interested in the witnesses' ideas, and I appreciate your insights into this. Let me start with Mr. Bagdoyan. Thank you for the GAO's work in this area. I was interested in your report about how different agencies are taking different approaches with this, and it does appear from your report that many of these agencies are taking your recommendations and responding to adopt policies and communicate those policies on how they intake comments. Do you believe that the APA itself should be amended to standardize this process more as opposed to just responding to GAO admonishment, or maybe, in reference to Dr. Balla's commentary, different agencies may have different approaches, is that the right approach? Which is the right approach: Uniformity, or allowing different agencies to approach this in different ways based on their own circumstances? Mr. Bagdoyan. That is a great question, Mr. Barr. I probably won't be in a position to give you an exact answer right now. I would point out that the APA does allow comments to come in, in any shape or form. The agencies have discretion to treat those comments as they best see fit, which is, I think, what our report on policy and practice shows. I will note, though, that we have ongoing data analytics work. It is in two parts, if I may explain it briefly for you. The first is a survey of actual commenters to see whether they actually sent those comments in. So that will be one significant data point for us to analyze. And then, we also have ongoing work where we are analyzing tens of millions of comments that were submitted to various agencies during the 5- year period covered by our work, and, based on those results, when we combine those results and see what, if anything, we can make of those results, then that would generate our policy and process procedure and perhaps technology mix of solutions, but I just can't comment on that right now. Mr. Barr. Let me associate myself with the comments of my friend from Colorado about the--I agree with him. The concern is false, as opposed to mass or anonymous comments. I agree with my friend from Colorado on that. Dr. Balla, however, I do want to ask you this: Should regulators generally err on the side of openness and inclusivity when soliciting feedback from interested citizens, given your research into the EPA, for example, being able to handle these mass communications in a fairly orderly way? Mr. Balla. As a researcher, I am going to argue against my self-interest, because as a researcher, I love uniformity, because uniformity allows me to access more information, more readily, and so that is the way that I can do a bigger scale study that would help broaden our general understanding of this phenomenon. But my argument is that agencies vary in the scope of their regulatory activity, and so a one-size-fits-all solution, I think, is quite scary, and I would argue strongly against it. So I would argue for a light touch on any kind of restrictions that would increase the friction, if you will, for submitting public comments. Mr. Barr. Right. So, erring on the side of openness and inclusivity as opposed to exclusion helps? Mr. Balla. Absolutely, because agencies vary in their capacity. Mr. Barr. Ms. Noveck had some interesting ideas about artificial intelligence, and I think she said summarization tools. Is there any risk of injecting bias into the process of screening out comments, however? Mr. Balla. Again, just to echo what Professor Noveck said, technology-wise, the solution has existed for a long time. Agencies can set duplicate thresholds at varying levels, and so they can separate out the duplicate content in a body of comments from those pieces that are unique contributions. So that technology exists, and agencies ought to be encouraged to use that to the extent that they don't yet. Mr. Barr. I have many more questions, but my time has expired. Chairman Green. The gentleman's time has expired. The gentlelady from Texas, Ms. Garcia, is recognized for 5 minutes. Ms. Garcia of Texas. Thank you, Mr. Chairman, and thank you for bringing this topic to the table. It completely baffles me that people go to this end to corrupt the comment period, and I especially don't like it, if it refers to our Astros in any way, but I understand Senator Bentsen's point, because there is a big difference between astroturf and grassroots. But I want to start with you, Ms. Gonzalez-Brito. I was really intrigued with the work that you have done, and I know that you mention in your written comments that you have called for an investigation. Tell us what has happened or what we can do to help? Ms. Gonzalez-Brito. Thank you for your question. I do want to mention that these complaints were made by an individual who had no idea that these comments were made, that the opposition to the merger was made without his consent. Ms. Garcia of Texas. Right, you cited four examples-- Ms. Gonzalez-Brito. Right. There were four examples. The OCC was made aware of these prior to the approval order, and it is not clear that the OCC did anything at the time except to ask the bank to respond to these complaints by these individuals. We would like to know what the OCC did, if anything, if the bank did respond. It is not clear whether they did anything beyond that. And they definitely did not, in their approval order, cite that there were fraudulent comments. So, that is concerning. We would like the Inspector General to begin an investigation and see if the OCC has put anything in place so that we are not just dealing with volume of comments, but that we are dealing with any fake comments that may come in as the CRA proposed rule is being looked at now, and as comments are coming in to that CRA proposed rule. So we ask that Congress ensure that the OCC is set up not just for volume of comments, but any fake comments that may come in as to this proposed rule. Ms. Garcia of Texas. Thank you, and we will work with the Chair to see if we can help in that area. Ms. Gonzalez-Brito. Thank you. Ms. Garcia of Texas. And my second question is for Mr. Bagdoyan. And I just need to clarify. You all had been using the word, ``duplicates.'' So are you referring to duplicates in the sense of the same person sending to or duplicates in the massive emails, or both? Mr. Bagdoyan. Yes, that is a great question, Ms. Garcia, and what we are referring to is comments that are identical, every word-- Ms. Garcia of Texas. So the mass-- Mr. Bagdoyan. The structure of the comments-- Ms. Garcia of Texas. --copy-and-paste kind of comment? Mr. Bagdoyan. Correct. Near duplicates are essentially the same comment with some variation in the wording or the sentence structure. Ms. Garcia of Texas. Right. And do most agencies limit comments to one person, that you would not get the same person sending a duplicate? Mr. Bagdoyan. I think it is an open process, and comments are accepted at face value as they come in. I don't think there is any kind of a screening out-- Ms. Garcia of Texas. What about the anonymous ones? Those are, in my mind, a little problematic. Mr. Bagdoyan. Sure. Ms. Garcia of Texas. How many anonymous comments do we really get, and is there any reason that we might want to figure out a way to make sure that people identify themselves? Mr. Bagdoyan. The APA allows the submission certainly of anonymous comments, and agencies, in the spirit of the law, do allow those to come in. They don't really analyze them in any specific way, but, as I mentioned in my response to Mr. Barr earlier, we are in the process of analyzing a vast trove of comments that were submitted over a 5-year period. I would say it is in the tens of millions, and we will have, hopefully, when our work is completed, better insight in terms of the identity characteristics of each and every one of these comments, and, if we are able to roll up those numbers, we will have a better sense of how many are anonymous and what other things are associated with those comments. Ms. Garcia of Texas. Right. My last question is for Mr. Naylor. You were talking about recommendations in policy changes. You told us one, and I just felt like you were going to say more. My question to you is, is there anything specifically that you think is the single-most important thing that we do, and then, also, has there been an increase in these fake comments within the last year or the last 2 years? Mr. Naylor. Thank you, Congresswoman. We have not tracked the incidence of fake comments, but, as you know, you have an urgent problem right now. Comptroller Otting is planning to gut the Community Reinvestment Act. Chair Clayton is planning to gut shareholder resolutions, and both of these are being based, in part, on astroturfing. So, if this committee can communicate in any way that that should not stand, then I invite you to do so. Ms. Garcia of Texas. Okay. Chairman Green. The gentlelady's time has expired. Ms. Garcia of Texas. Thank you. I yield back. Thank you, Mr. Chairman. Chairman Green. The gentleman from Florida, Mr. Posey, is recognized for 5 minutes. Mr. Posey. Thank you very much, Mr. Chairman, and Mr. Ranking Member, for holding this hearing on the Administrative Procedure Act in general and astroturfing more specifically. The creation of false impressions of widespread spontaneously arising grassroots movements is a poor raw position to something that is, in fact, a real problem, as you all have expressed, and I am glad there are more people aware of it. Number one, most people believe that their elected representatives make all the laws, which is a grossly inaccurate understanding of how this place and many State Governments work. They are unaware that, in most cases, most laws are made by unelected people, unrecallable people, unaccountable people, and they do it without having the statutory authority that they are supposed to have, and they have been able to get away with doing that for decades. I have read in multiple sources that the odds of someone being hauled into Federal court for a violation of the law are 1,000-1 in favor of it being a law--i.e., administrative rule enforceable as a law--that an unelected, unaccountable bureaucrat wrote, not one that lawmakers actually passed. It is, I think, the biggest problem with the operation of our government. If a Federal employee is caught stealing cash, hopefully, they are prosecuted. If a Federal employee is caught stealing equipment, whether it be a copy machine or a backhoe, hopefully, they are prosecuted. But Federal employees routinely steal the resources of hard-working Americans, American businesses, and American households with absolutely no consequence whatsoever, and that is why we need to have some authority. And the astroturfers are partners in that crime, I believe. Every Member of Congress gets a copy every day of the Federal Register, which is mostly administrative rules, proposed changes to rules, Executive Orders, and they range from that thick, to five a day this thick, and I don't know a single Member of the House or the Senate who reads them because we can't do anything about them. We have abdicated total control to the unelected, unaccountable bureaucrats, and the only way we can change any rule that they make is to pass a bill in opposition to it, and you all know how simple that is to do up here, right? Dr. Balla mentioned the EPA. The EPA has outlawed the use of glider kits based on flawed information, criminal information that has been deemed false. They won't change their rule. You mentioned it. That is just one of many. The FDA. How well-intended can you be, but you want to put all of the premium cigar manufacturers out of business so that children don't smoke premium cigars. I guarantee you there is not a child in the United States of America who has ever smoked a premium cigar. They don't have the statutory authority to do that. They have been confronted with it, and, instead of admitting they are wrong, what do they do? They give the industry the finger and say, we are going forward anyway. Even the CDC seems to have engaged trolls and astroturfers when they want issues put forward. The last time Congress addressed the Administrative Procedure Act to change it, to try and make it right, they basically said, ``You have to do a cost-benefit analysis on any rule that causes over a $100 million impact.'' So, if you just impact every family in the United States by a total of $99 million, et cetera, you don't have to do anything, and of course a lot of the agencies don't comply with that requirement. So, it took 8 years to fix this problem in one State, and we haven't even started to kick it off here. Maybe this hearing will serve as the kickoff, Mr. Chairman, and, if it is, I applaud you for that. And I'm almost running out of time here. I wish I could tell you about how we fixed it in Florida. It is a riveting story. But, Dr. Bagdoyan, are you aware of any rulemaking processes that have gone into litigation based on alleged astroturfing? Mr. Bagdoyan. I am not, but we can certainly look into it and get back to you, sir. Mr. Posey. Okay. Dr. Balla? Mr. Balla. I am not aware of any either. Mr. Posey. Is anyone aware of any? Okay. It seems likely that mass-comment campaigns will be seized on by a rulemaker when they support a position that the rulemaker has already embraced and otherwise ignored. Have any of you seen instances of that before? Ms. Noveck, you are smiling. I think we all have if we are honest about it, but Ms. Noveck? Ms. Noveck. It is not a phenomenon of new technology. We always like the evidence that supports our point of view. Mr. Posey. Okay. Mr. Chairman, I see I am out of time, so I yield back. Thank you. Chairman Green. The gentleman's time has expired. The gentleman from Ohio, Mr. Davidson, is recognized for 5 minutes. Mr. Davidson. Thank you, Mr. Chairman. I thank the committee and our guests for an important hearing highlighting the tension between the way we make our laws, the way we regulate the country in the absence of laws, and, frankly, the impact on the American people. It has been highlighted by my colleague, Mr. Perlmutter, really going back to the origins of the country and the ability to make private comments. Sometimes, today, that is under the biggest attack. I would say, in this committee, in Financial Services, the ability to have some modicum of privacy with your financial life is heavily diminished. For example, when I hear people say, ``Oh, we should know the identity of everyone who comments,'' are we really proposing something along the lines of the Bank Secrecy Act, where you have know-your-customer provisions for every comment that comes in? And should every congressional office only do that if they are constituents? And clearly, constituents are only citizens; so we should discount the noncitizens, right? So, when you look at how you go down the way this goes is, as has been highlighted, we all receive comments from many forums, where people duplicate them. They are individuals. They are organizations across the political spectrum. I seem to get a lot from some group called the Resistance Movement--resist, resist bots. Any number of resist, #resisting show up in my comments. And I can't imagine there is any incentive for this group or group of people, individuals, to dump these comments on as we are reviewing legislation, but of course it happens, and the same thing happens through our regulatory state, and, as Mr. Posey highlighted, it can be really high stakes. We have regulators in position, and I really think that the remedy has to be that we have to reclaim the Article I powers of this body and, frankly, we need to have a government that is only big enough to fit inside the Constitution, and Congress does the things that are enumerated, and we reserve to the States the things that aren't enumerated because there is more local control on those things. And I will say there is a clear consensus that the Federal Government and Congress should do some things that aren't enumerated. For example, healthcare. Not an enumerated power. Broad consensus, we should have some sort of Federal role there. We could amend the Constitution to make it clear exactly what is the expectation. Those are high bars, and, in the absence of our action here in Congress, we have simply said, well, this would be really important, like the EPA. We want clean air and clean water; you all figure it out. And when they do it, as we saw, Dr. Balla, you highlighted, particularly with the waters of the USA action, a regulatory agency using something called Thunderclap to spoof comments, totally fake comments, the epitome of astroturfing, by a regulatory agency to support what they wanted to do anyway, causing great harm to industry, to farmers especially, whose comments were disregarded, not taken into consideration. And thankfully, in that case, the system worked as it should, Congress reclaimed its authority, we moved it through the House and the Senate, and the President signed it, and we revoked it. And in the interim, the courts worked as they should and said: This exceeds your constitutional authority; it is outside the bounds. So, Dr. Balla, could you highlight, given the background that you do there, with the EPA, kind of the tension that exists and what worked well, and what do we still need to address? Mr. Balla. Sure. The one question to ask is, do comments matter? And I want to separate that question into two parts. Does the forum or the venue through which the comment comes in matter, mass-comment campaigns versus stand-alone, and separate that from the identity of the commenter? And what we find is that actually there is quite an overlap in the EPA's context in terms of who does mass commenting versus stand-alone comments. So, it is hard for us to separate out: Is it the mass- comment campaign; is it the venue itself, the vehicle of delivery that matters, or is it what is actually said? According to the Administrative Procedure Act, it is substance that matters, not the identity of the commenter. And so, to bring this back to the issue of anonymous comments, one thing you might be concerned about is, agencies can be quite powerful, as we have heard, they have a lot of authority, and there are stakeholders who might be in a vulnerable position if their identity, when they criticize an agency, is revealed. And I think we might want to tread carefully about limiting anonymity in public commenting. Chairman Green. The gentleman's time has expired. The gentleman from Tennessee, Mr. Rose, is now recognized for 5 minutes. Mr. Rose. Thank you, Chairman Green and Ranking Member Barr, for holding this hearing today, and thank you to the panelists for being here. I wonder, Dr. Balla, if you might continue where you left off? Mr. Balla. Sure. Agencies are--what are their responsibilities? It is to address the substance, the relevant matter in their comment, in their corpuses of comments that they receive. They are not instructed by the Administrative Procedure Act to pay attention to identity. They are instructed to pay attention to relevant matter. And so, again, do comments matter? In my experience, if we think about the administrative rulemaking process, it is a legal administrative process governed by the EPA, but that, of course, occurs in the context of a larger political system. What does that mean for us? Do we have evidence that mass- comment campaigns affect the outcomes of rulemakings? I don't think we can say that because, in the period between a notice of proposed rulemaking and a final rule, a lot of inputs happen into the system. There are public comments. There are ex parte communications. There might be advisory committee meetings. There are all kinds of inputs that can happen in the rulemaking process. But what I think we can say is that mass-comment campaigns have been justified, have been used by both political parties amid both Administrations of both political parties to justify actions that they already would like to have taken. And so, in the context of the Waters of the United States rulemaking, Administrator McCarthy came to Capitol Hill and said, ``We have heard over one million comments; 87.1 percent of them are in favor of this rule.'' The rule was finalized shortly thereafter, in line with those comments. Was it those mass-comment campaigns that were mainly submitted by environmental advocacy groups like the Sierra Club, and the NRDC? Was it those mass-comment campaigns that led the agency to that end point? I am quite skeptical that that was the case. I would argue that was the approach that the agency was already planning to take in the rule and the mass- comment campaigns provided no legal or administrative justification for taking that action, but they provided sort of a larger political justification. Thank you. Mr. Rose. Beyond the case that we have been discussing of the Obama-era EPA and the Waters of the United States rulemaking, is there pervasive evidence of agency-generated astroturfing? Mr. Balla. I am only aware of that one particular case, that one particular thunder-clap instance, but that doesn't mean there aren't others. I just don't know. Mr. Rose. And I direct this question to you and also Mr. Bagdoyan. Are there any laws or regulations specifically addressing agency staff encouraging or generating comments? Mr. Bagdoyan. I am not aware of any, but again, I would be happy to look into that and get back to your staff on it. Mr. Rose. I would appreciate that. Are there any procedures that either of you are aware of in place to monitor or detect agency personnel generating comments or encouraging comments beyond the normal opening of the comments for public comment? Mr. Balla. I am not aware of any. Mr. Bagdoyan. I am not either, but that doesn't mean they don't exist. I will add that to my to-do list. Mr. Rose. Thank you. And, Dr. Balla, I am also wondering, is there any analysis that you have done or research that you are aware of, on selection bias by agency personnel as they prioritize comments? Has that question ever been looked at? Mr. Balla. What do you mean by, ``selection bias?'' Mr. Rose. Well, pulling out or providing preference to the comments that supported the position that they perhaps already had. Mr. Balla. That certainly happens in the public sphere, right? Again, if we come back to the Waters of the United States rulemaking, that is, in fact, what was going on in that case, for sure. Mr. Rose. And I am wondering, I know one of the panelists talked about diverse comments or encouraging diversity among those commenting, but I am curious if that doesn't--I guess I would fear that that would become just a vehicle for soliciting the comments that you want to hear when they are absent from the voluntary comment process. Dr. Balla, have you seen anything that you can point to for us there? Mr. Balla. What I would encourage agencies to do is, if they feel that they don't have the information they need to move a rulemaking forward, use advance notices of proposed rulemaking where you ask general questions and direct stakeholders and affected parties towards issues that you think you need help, where you have information gaps. So, I don't think it is a bad thing for agencies to direct commenters in particular areas where they have gaps in their understanding. Mr. Rose. Thank you, Mr. Chairman. I yield back. Chairman Green. The gentleman's time has expired. The gentlewoman from California, Ms. Porter, is recognized for 5 minutes. Ms. Porter. Thank you so much. I appreciate the opportunity to join this subcommittee today. Mr. Naylor, in December, a few months ago, the nonprofit you work for wrote a letter to the SEC asking the Commission to investigate some suspicious letters submitted during the public comment period on a new rule that the SEC had issued, and that rule would shrink shareholders' rights to hold corporate interests accountable. And your letter raised concern specifically about the actions--the comments of SEC Chair Clayton. And he had directly quoted some of these public comments to make the case for the SEC's proposed rule. Who did the Chair say had submitted the letters, the comments that he cited in support? Mr. Naylor. It was a Frank Capra moment, in fact, when the Chair discussed these. He made reference to a Marine veteran and a retired teacher and so forth, and it was with some ceremony and reverence that he explained that these were Main Street investors that he had surveyed. Ms. Porter. Okay. So, he cited an Army veteran and a Marine veteran, a police officer, a retired teacher, a public servant, a single mom, and a couple of retirees who saved for retirement. Bloomberg News investigated and discovered that those letters were, in fact, submitted by a trade group, and the Bloomberg article is entitled, ``SEC Chairman Cites Fishy Letters in Support of Policy Change.'' We believe these letters, these comments were actually forged, and your letter goes on at length about forced arbitration clauses, how damaging these arbitration clauses are. Explain to the committee how forced arbitration clauses relate on that shareholder proposal? What was at stake here for the American public in making this--why is it important to get this right? Mr. Naylor. There are only a few lines of accountability for corporations. There are the laws that you pass. There is litigation to support these laws. There are whistleblowers that we saw play out during the impeachment. And there is shareholder activism, which is when shareholders decide that they are going to make companies accountable. We saw this play out, for better or for worse, with Enron, with Wells Fargo, and with others. In forced arbitration--ironically enough, a former Harvard professor, Hal Scott, believes that a certain company, in this case Intuit, should bind their shareholders to forced arbitration if they believe the company is misrepresenting its financial figures. And that is the kind of thing that a shareholder activist can do. Happily, shareholders rejected that, I think, 98 to 2. So, that is where the two kind of converge. Ms. Porter. Can you tell the committee what astroturfing refers to? It is the title of today's hearing. Mr. Naylor. In our opinion, astroturfing is just fake grassroots. It is the appearance of grassroots commentary on something which, in fact, is the fiction generated by the very corporate interests that the likes of us are trying to control. Ms. Porter. And in your opinion, would you consider Chair Clayton's reference to these fake comments of an Army veteran, a Marine veteran, a single mom, and a couple of retirees, would you consider that an instance of astroturfing? Mr. Naylor. Or if not, beyond astroturfing, he represents that he did a random sample across America and just happened to put his hand into the jar of comments and selected these. There were hundreds, if not thousands of comments from the likes of us, all arguing for stronger shareholder rights. These were essentially the only ones that argued against that. I would say that is a misrepresentation. I think that is something that falls under 18 USC Sec. 1001, that says, you are not supposed to tell untruths to the United States Government or else there are consequences. Ms. Porter. So, in your opinion, we could use that statute to-- Mr. Naylor. You should explore that statute. Ms. Porter. --pursue the trade groups, the lobbyists who are behind these fake, forged comments because the comments, what the investigation suggests is that these comments were not private individuals pretending to be other private individuals. They were actually lobbyists and corporate lobbying entities and trade associations submitting fake comments. We could investigate them, we could prosecute them, the government? Mr. Naylor. I believe that should be explored. These are corporate lobbyists using actual people as stooges. They are pawns. They are victims in one sense. But the real victim is the American public who-- Ms. Porter. Tell me why you think they are victims? Mr. Naylor. Because they didn't write these letters. They just happened to be the cousin, the uncle, the in-law who said, oh, yes, sweetie, you are a lobbyist, do whatever you like. But now the public sees their name is on something that they probably do not subscribe to. Ms. Porter. Thank you. Chairman Green. The gentlelady's time has expired. The gentleman from Georgia, Mr. Loudermilk, is recognized for 5 minutes. Mr. Loudermilk. Thank you, Mr. Chairman. Thank you all for being here. I would like to kind of continue on with something Ms. Porter brought up, the Bloomberg story. I think, in the Bloomberg story, they highlighted seven people who supposedly-- their names were used, but they didn't submit comments. I actually have in my hand here, it was the organization that orchestrated the comments was an organization of 60 Plus, who went back to each one of these people, and I actually have declarations of five of those people who say they actually did submit those comments. They were able to track them down after the story was printed. Apparently, when Bloomberg called them about this, they didn't necessarily remember or know exactly what the reporter was talking about. So, just out of clarity, I would like to submit these to the record, Mr. Chairman, these affidavits, these declarations of statement that they did actually submit those comments. Chairman Green. Without objection, it is so ordered. Mr. Naylor. That is fair, Congressman, but let me just try to restate what I think is-- Mr. Loudermilk. Hang on a second. I just want to make sure that we did that. There are a couple of areas I want to get into. We will get to that if I have time. Something Mr. Naylor said a little while ago, Mr. Balla, that is a little concerning, is he made the comment that the OCC is making a rulemaking process decision based off of fraudulent comments that they have received regarding the Community Reinvestment Act, but I heard you answer a question a little while ago that indicated that we don't have evidence of--and then some others have commented on this, that there has been no evidence that rulemaking decisions, or that these campaigns or false comments have actually resulted in the decision in rulemaking. My question is, do we have evidence that the OCC and the FDIC have been receiving fraudulent comments during the Community Reinvestment Act process? Mr. Balla. I can't answer that question. I don't have any knowledge about that particular case. I just want to reiterate the general point that I was making, in that even after decades of research on the topic, ``do public comments matter,'' the answer is still quite muddled. And so, this has nothing to do with the nature of the comment, whether they are mass-comment campaigns, fake-comment campaigns; it is going back to pre- rulemaking. Now, I don't want to argue that we need to be paralyzed in our ability to make a causal inference between the submission of a comment and the decision of an agency, but I do want to suggest that identifying that particular connection is quite tough-- Mr. Loudermilk. Right, right. I understand that. Mr. Balla. --in a case study context or a large end context. Mr. Loudermilk. And I remember something Ms. Noveck said. Basically, if a comment supports the direction that you are wanting to go, you are going to accept it. And I think that is just human nature. But Mr. Naylor, your comment, if I didn't misunderstand it, you indicated that the OCC is using these false statements to make decisions on the CRA. Was that correct? Mr. Naylor. If Comptroller Otting had any credential to be Comptroller, it was the consummation of a merger between OneWest and CIT, and that merger was built in no small part on astroturf, on fake comments. And so the person who is now fabricating, dismantling the CRA, is somebody whose career has 2 feet into a very serious problem. Let me just point out one thing about Chair Clayton's comments. Had he said, ``I have seven letters, one comes from the brother-in-law of a lobbyist, one comes from the uncle of a lobbyist, one comes from the in-laws of a lobbyist,'' that is far different than a marine veteran, a retired schoolteacher, and a police officer. Thank you. Mr. Loudermilk. Okay. Even though they may be the same people? Mr. Naylor. Same person, but a corporate lobbyist's brother is a little different atmospherics than a retired police officer. Mr. Loudermilk. Okay. Honestly, I do find occasionally that lobbyists also tend to be experts in certain careers and fields, and they often do have opinions. I'm not defending them. But Mr. Balla, as you said, these campaigns are nothing new, correct? Mr. Balla. That is correct. They were-- Mr. Loudermilk. They have been going on-- Mr. Balla. --postcard campaigns in the old days. Mr. Loudermilk. Exactly. I am running out of time. Mr. Bagdoyan, quickly, I was on the Science, Space, and Technology Committee when we were investigating when the EPA actually was using social media to go out and generate false comments on the Waters of the United States rulemaking. You investigated that, did the report on that, is that correct? Mr. Bagdoyan. That was a legal opinion, Mr. Loudermilk. I was not involved with the work, but I am familiar with it, yes. Chairman Green. The gentleman's time has expired. Mr. Loudermilk. Thank you, Mr. Chairman. Chairman Green. The Chair now recognizes the gentlewoman from Michigan, Ms. Tlaib, for 5 minutes. Ms. Tlaib. Thank you so much. I don't know if Mr. Naylor or someone else can help me out. Do you think brothers-in-law of lobbyists are experts? Mr. Naylor. They can be experts, but as long as you say brother-in-law of lobbyist, then that helps establish that we are not dealing with average, randomly selected Americans. Ms. Gonzalez-Brito. And can I just give an example? In the OneWest merger, Mr. Otting solicited support from Wall Street vendors, lawyers, and business contacts who had financial interest in the bank when he asked for support of the merger. And so, in that case, there was a clear conflict of interest in those he was asking for support. So, I am not sure I would call those experts in the community needs of the bank that he was asking for support. Ms. Tlaib. No, I agree. And conflict of interest is something that can really poison various institutions and policymaking, I agree. Mr. Naylor, help me out here. If there is a bully in my son's class, and his teacher makes a rule against bullying, like, you can't bully, it would be wrong if the bullying was continuing, and this particular bully, he was literally bullying 12 people in the class; would it be wrong if that bully paid those 12 kids that he was bullying to tell the teacher that they loved getting bullied? Mr. Naylor. It has been a while. I think that would be wrong, but actually, public-- Ms. Tlaib. No, it is pretty common sense. Mr. Naylor. --policy on that is not well-developed, I guess I would have to say. Ms. Tlaib. Yes. I understand the Public Citizens Chamber Watch investigated the 2015 case by contacting each of the 12 small business owners to see if their opposition to the rule was, at minimum, misleading and so forth. Is that correct? Mr. Naylor. Yes. Ms. Tlaib. It was revealed that more than a fourth of the small business owners were actually lobbyists for the brokerage. And I am sorry if I--I was chairing another committee, so I apologize if this is repetitive. But it is good because truth matters, right? Mr. Naylor, can you describe in detail what else the investigation revealed? Mr. Naylor. Well, context, and thank you for the question, Congresswoman. This was an Obama-era rule that said brokers aren't supposed to rip off their customers. They are supposed to advise stuff that is in their best interest and not something that is going to fatten their own pocketbooks, which should be good for everybody, including small business. In lobbying against this, the Chamber supposedly found several dozen businesses that said they would lose their trusted adviser, which I found a little surprising. So I called them all and found, as you say, that some of them were, in fact, Wall Street brokers themselves. Others didn't answer the phone. One woman said that the ability to use her trusted adviser had allowed her to grow her business employment over the last decade, and I asked her how many employees she had, and she had grown it by one. So, in other words, these were pawns, as we discussed with Congresswoman Porter. The law was going to help them, but the Chamber of Commerce, serving Wall Street interests, was going to sacrifice these pawns to make a misrepresentation, in my opinion, to this committee and the Labor Committee to fight the fiduciary rule so that Wall Street could save $17 billion a year in inflated commissions that they were then charging. Ms. Tlaib. In my district, we don't call it a con. We actually call it cheating. It is cheating. Mr. Bagdoyan, based on your role as Director of Forensic Audits and Investigative Services at GAO, what have you learned regarding the ability of a well-funded corporate industry to misappropriate the identity of ordinary Americans and create an illusion, or what I call misleading, lying, a widespread support for pro-industry positions not only during the notice- and-comment period of the rulemaking process but while lobbying Members of Congress? Mr. Bagdoyan. Well, a lot of organizations send in these mass mailings. I don't have any evidence to the extent that that happens and by whom. That is not something that we have focused on. Our work has focused on the policy and practice of identity information. So, that is what our analysis-- Ms. Tlaib. You should probably get into looking at this. What can we do to help you look into something like this? Because we don't want industry to hijack the public process that is for ordinary Americans to be engaged in. I just left another committee hearing about the Trump Administration repealing and changing the mercury standards, basically what has been working to reduce 80 percent of mercury output, and now they are saying, no, no, no, we are going to go and fix it, and now it is open to people commenting. I want moms and regular folks to be able to say: Don't do this. What can we do to help support you taking a deeper dive into this, so that again, this process is really transparent? Mr. Bagdoyan. Sure, yes, I take your point, and what I can offer, like I have explained to other members of the subcommittee, is that we have ongoing data analytics work that is focusing on identity characteristics of comments. And we are also surveying commenters to see whether the comments they submitted were indeed by them, rather than someone else posing as them, and our plan is to actually engage into some deeper dives into those responses that we do receive. Chairman Green. The gentlelady's time has expired. I will ask you to put your comments in the record, please. Mr. Bagdoyan. Yes, sir, thank you. Chairman Green. Thank you. At this time, the Chair will yield himself 5 minutes. Mr. Balla has indicated that there is a question, in terms of evidence of adverse effect emanating from mass-information campaigns. Maybe not in those exact words. I would yield time to you, Ms. Gonzalez-Brito. Can you give us some indication as to whether or not this was evidenced in the case that you cited? Ms. Gonzalez-Brito. In the case of the OneWest-CIT merger, we had a bank that was foreclosing on, in some cases, we are hearing up to 100,000 families across the country, that had one of the worst reinvestment records in the State of California and had a CRA plan that was approved by its regulator that was one of the worst in its State. And none of this was addressed in the merger order by both of its regulators, and when it was approved, the merger was approved, the fake comments that were, that the bank's regulator had notice of before the approval, as I mentioned earlier, was not dealt with or investigated before the merger approval order. So, here we have a public comment process in which hundreds of organizations and community members commented on, and there was evidence of fake public comments. None of that was investigated. Fake Yahoo email addresses were generated, and we still don't know who was responsible. And the CEO of that bank is now running the CRA rulemaking that is happening now. So, not only is there an adverse impact on the merger that was approved, but now we have a CRA rulemaking by the OCC, where we don't know if they have a system in place to ensure that fraud is not taking place in that rulemaking. There are a lot of questions that need to be answered, an investigation that needs to take place, and we want to make sure that the public rulemaking process is--that there is integrity in that process. Chairman Green. Mr. Naylor, I am looking at your testimony, and you have indicated that, with reference to the affair that Bloomberg uncovered, that the 60 Plus group was funded by an entity. Would you care to express what you have given to me as your written statement? Mr. Naylor. Well, 60 Plus is a group that is known to the public generally as a sometime Koch-funded group that fights for the right, fights against regulation, fights for that which gets in the Koch business' way. The false front in front of the effort to gut shareholder resolutions, we believe begins and is generally overseen by the U.S. Chamber of Commerce. The false fronts have included something called the Main Street Investors Coalition. It's not very difficult to uncover because its own website, before it took it down in shame, said it was funded by the National Association of Manufacturers. Why are these guys upset? Because the one thing about capitalism and apparently the CEOs don't like is people showing up at the annual meeting and saying they would like the CEO and the board to do things a little differently. They have been arguing against shareholder suffrage for a long time. And to do that, they need to make it look like actual shareholders want this, are tired of this, and so they created these false fronts, including the efforts done through 60 Plus. Chairman Green. Quickly permit me to ask some questions that would necessitate raising a hand. Is there a significant risk of misinformation masquerading as legitimate public input? If you believe such is the case, kindly extend a hand into the air. All but one, I believe. Mr. Bagdoyan. Yes, Mr. Chairman. I am not in the position to comment on that. I just don't have the evidence right now. But we are working on it. Chairman Green. Okay. I greatly appreciate it. Are we adequately policing the comment process? If you believe that we are adequately policing, would you kindly extend a hand into the air? Mr. Balla. And can these problems that have been called to our attention today be remedied with technology? If you think so, kindly extend a hand into the air? We have two, Ms. Noveck and Mr. Balla. Let the record reflect such. Friends, I greatly appreciate your testifying. The ranking member has asked for a privilege. He would like to have an additional 1 minute, and I will accord the privilege, without objection. And I will have a minute as well. Mr. Barr. Okay, I appreciate the gentleman. Let me just clear up one thing. From what I understand, we don't have any evidence whatsoever that, in the CRA rulemaking process, there is any evidence of any fraudulent comments being submitted. I raised this issue with Comptroller Otting when he was here last week, and he testified that there was no evidence of any fraudulent comments submitted in the CRA process, and I want to make that clear for the record. In terms of false fronts, there may be, in various agencies, false comments over the course of this, but I think, with the example from the EPA in 2015, you have this on all sides, fraudulent comments. It is not just on one particular side. You have it everywhere. And the final point is, in many cases, the industry representatives should have a right to comment, and some of the witnesses seem to be suggesting that someone who has an interest in the rule-- Chairman Green. The gentleman's time has expired. Mr. Barr. --doesn't have a right to comment on it, and that makes no sense whatsoever. Chairman Green. The gentleman's time has expired. Mr. Barr. I yield back. Chairman Green. Thank you. The Chair now yields himself 1 minute, and I would note with a degree of interest that you would mention Mr. Otting, because I did ask him questions when he was here, and he vehemently denied any involvement or engagement by his business and his associates. But I think, Ms. Gonzalez-Brito, you have given us information to the contrary. Is it unusual for people who have been involved in activities that are adverse to their best interest to deny involvement? Is it unusual? If you believe that it is unusual for persons to deny involvement in activities that are adverse to their best interest, would you kindly raise a hand? Let the record reflect that no one has raised a hand. With this, I yield back the balance of my time. Without objection, on behalf of Professor Noveck, I would like to offer for the hearing record a report that she has authored entitled, ``Crowdlaw for Congress: Strategies for 21st Century Lawmaking.'' I thank the witnesses for their testimony, and for devoting the time and resources to travel here and share their expertise with this subcommittee. Your testimony today has helped to advance the important work of this subcommittee and of the U.S. Congress. The Chair notes that some Members may have additional questions for this panel, which they may wish to submit in writing. Without objection, the hearing record will remain open for 5 legislative days for Members to submit written questions to these witnesses and to place their responses in the record. Also, without objection, Members will have 5 legislative days to submit extraneous materials to the Chair for inclusion in the record. This hearing is now adjourned. [Whereupon, at 4:11 p.m., the hearing was adjourned.] A P P E N D I X February 6, 2020 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]