The Comment Period Is the Lobby

Almost everything a modern government does to a citizen is done through a regulation rather than a statute, and almost every regulation passes through a procedure designed to let the public object first.

The provision that requires it is short. Publish the proposal, take comments, consider them, explain the final rule. As a design for accountable administration it is elegant.

As a description of what happens it is close to fiction, and the reason is not that anyone circumvents the procedure. The procedure runs exactly as written.

The problem is who shows up. A comment period is an open invitation, and an open invitation is answered by whoever was already paying attention.

The docket system is genuinely public. Anyone may file, at no cost, without a lawyer, and the agency must consider what is filed.

What it cannot do is make anyone aware that the proceeding exists. A rule that will reshape an industry is announced in a publication that industry reads daily and nobody else reads at all.

The daily register is the notice, and it is a notice in the legal sense rather than the practical one. Publication satisfies the requirement whether or not it reaches a single affected person.

The asymmetry compounds through the substance of what gets filed. A comment that changes a rule is not a statement of opposition. It is a technical objection with data behind it.

Producing that costs money. It requires someone who can read the proposal, identify the analytical weakness, commission the study that demonstrates it, and write it up before the deadline.

A trade association has that person on staff. The people the rule is meant to protect, as a rule, do not, and a comment saying only that a rule seems like a good idea carries no analytical weight for the agency to consider.

So the record the agency must respond to is built disproportionately by the regulated, and the agency is then obliged to take that record seriously, because failing to respond to a substantive comment is how a rule gets vacated.

That obligation is the mechanism. A well-resourced commenter does not need to persuade the agency. They need only to place enough substantive material in the record that ignoring it becomes legally risky.

The codified result shows what emerges. Rules are longer, more qualified and more exception-laden than their proposals, and each exception can be traced to a comment somebody was paid to write.

None of this is corruption and none of it requires anyone to act in bad faith. Every participant is doing exactly what the procedure invites them to do.

It is a structural consequence of building participation around a deadline and a docket rather than around any mechanism for finding the people a rule will actually affect.

The obvious response, extending comment periods, does not help. A longer window is more useful to the party with a standing capacity to file than to the party who never learned the proceeding was open.

Nor does simplifying the filing interface, which lowers a barrier that was never the binding one. The binding constraint is analytical capacity, not the form.

What would change the balance is an agency obligation to solicit actively rather than to publish passively: to identify who a rule affects and go to them, in the way a census enumerator goes to a household rather than waiting for a form.

That is expensive and slow and would be criticised as agencies putting a thumb on their own scale. The criticism has force.

The alternative on offer is the present arrangement, in which the scale is already weighted and the weight is invisible because it was placed there by a procedure that looks perfectly neutral on the page.

A public comment period with no public in it is not a failure of the rule. It is the rule working as designed, and the design assumed an attentive citizenry that the notice mechanism does nothing to create.

Which leaves the same small set of organisations reading the register each morning, writing the comments, shaping the record, and being answered — not because the door was closed to anyone else, but because nobody else knew it was open.