The thing about Notice and Commentary is that they don’t have to actually do anything except pay lip service to genuine concerns raised anyway. Also, looking at comment-stuffing patterns, it actually have for the past 10+ years inadvertently created a situation where the mass of copypasta support amplified the genuine questions since the APA does require said lip service to be paid, and it’s hard to pay lip service to copypasta.

It’s unlikely that most of the stuffing is done by corporate America, because there’s a ton of anti-corporate but pro-state comments that ends up getting sent in for, say, the DEA (especially on matters that also involve the FDA), or DHS, or the even more in the weeds aspects ranging from the FAA to Treasury subagencies. They are far more about reinforcing what the agency wants to do already. I can’t prove that because I can’t even get a response to FOIA requests I’ve sent in and only ICE has been as mum on FOIA requests (although ICE actively trolls public interest firms so I guess they take it one step further, your tax dollars at work). The net neutrality instance (and other instances of comment-stuffing that was revealed when the government sees an advantage for doing so) are known because the gatekeepers wanted those particular cases to be noted, but it is widespread as hell and also, since there’s no requirement to use one’s real legal name – especially when interest groups can comment as a group if they so wish – not to mention that there are a bevy of people with my name in the country, the need to use actual identities from some db leak is extraneous and frankly, more indicative of the operatives not knowing how the system works more than anything else. That would hardly be surprising since the first Trump admin didn’t seem to have a single lawyer who had the president’s ear and understood the mechanisms of admin law. It’s also curious why such stuffing efforts don’t occur on a greater scale on the state level since most states have a similar system. Boyd Gaming tried to ask for a handout and continue the Nevada ban on iGaming over the pandemic and failed because 5 Nevadans, none of whom knew each other, objected in writing to the Gaming Commission. Boyd even made the ludicrous claim that Nevada didn’t have the datacenter capacity to run a geofenced in-state gaming system and with a fairly significant chunk of taxpayer change at stake a company that size would not make completely idiotic claims that can be refuted by Googling. In fact, Google literally was building and finishing their Henderson DC during the whole process and so it’s literally the top of results when searched. Boyd is publicly traded and operate close to 30 properties, they can afford lawyers who can make better arguments than five randos. And it would take a very small sockpuppet operation to create the appearance of support, and instead they were out about $200 million both from not receiving an additional state bailout and the acquisition of an iGaming company.

But of course on the federal level for the most part rulemaking is not arising out of lobbying directly but instead most of it arises out of agencies fulfilling the procedural requirements of the APA. Those commenting should do so to force the agency to engage with genuine concerns and since they don’t have to consider the persuasiveness of the comments, their answers can be surprisingly revealing. Getting the DEA to admit that their enforcement and scheduling actions are done without considering patient well being because they only care about potential for abuse (not even actual abuse, so much of scheduling is based on moral panic and an attempt to create problems to justify its raison d’etre) didn’t take an API key since under both the Obama and the first Trump admins I couldn’t even get an api key somehow. I have one now – during the Biden admin – but it’s also way easier nowadays to stuff the comments without using the API. Residential/mobile proxies are cheaper than ever, and if someone can’t figure out how to automate a browser or 100 to navigate the site, they should hire the sneaker bot kids. But this really means that if the tactic actually worked, then someone like me can pay next to nothing and stuff regulations.gov, no api required. Selenium has been around long enough that it’s incredibly simple to pose as a real browser once you do a run-through, or the likes of OctoBrowser, ixBrowser, Linken Sphere if you want to go halfsies on the automation. But since agencies are effectively shielded from direct political pressure anyway and can simply wave away legitimate concerns as they have always done. Many routinely ignore black letter reporting requirements and have effectively gone rogue (the DEA makes a profit and keeps it to augment its budget, and that profit comes from profits made when laundering cartel money, for over 20 years. They’ve stopped reporting to congress regularly in 2012 and remains the case when the IG was still able to audit), so why should they be afraid of the unwashed masses trying to ring the alarm on the recklessness of agency action? The most dangerous regulations are the ones that directly affect the liberty and property interests of the average person. Immediate harm surely outweighs potential future harm, and if you really give a damn you should already have a template ready for submission. The agencies seems to take such minute indicators of effort more seriously for some reason, although not seriously enough to change their plans most of the time.