The 2022 Election Results Place the Senate and the Administrative State at the Forefront of Policy Making
With all the results finalized, the 2022 election has divided America’s federal legislative branch. The Republicans will narrowly control the House of Representatives, and the Democrats will grow their slim control of the Senate. The loss of the House of Representatives means that landmark legislation on the scale of the American Rescue Plan Act or the Infrastructure Investment and Jobs Act is - barring another nationwide calamity like the COVID-19 Pandemic - almost certainly dead on arrival. But all is not lost concerning President Biden’s and the Democratic caucus’s political agenda. Control of the Senate, as opposed to the House, is critical to advancing alternative legislative pathways - one of the most important of which is appointments to federal administrative agencies.
It is no secret that the often-titled fourth branch of government is a vast cradle of legislative power. Entire sectors of the economy can be restructured through a simple notice and comment period and the agreement of a simple majority of the appointed commissioners. Notable events such as the enactment and subsequent repeal of net neutrality, the Federal Communications Commission policy that prohibited internet service providers and other telecommunications companies from throttling internet speeds and engaging in price discrimination against different kinds of users, have even become culturally ingrained in American society, receiving immense national attention.
The delegation of so much power to agencies is no mistake. Congress has expressly delegated expansive authority and given significant independence to many federal agencies in large part to ensure that regulations are responsive to the public’s needs and that experts can enact new well-crafted regulations while also being separated from the traditional political channels to ensure undue political pressures do not interfere with the enactment of just and reasonable regulations.
Many federal agencies possess exceptionally broad power. Under the Packers and Stockyards Act, the United States Department of Agriculture can regulate “every unjust, unreasonable, or discriminatory regulation or practice” in the livestock industry. The Federal Energy Regulatory Commission, using the powers granted to it by the Federal Power Act, can regulate all unfair or discriminatory practices affecting electrical transmission. The Federal Communications Commission, under the Communications Act of 1934, is granted powers to proscribe conduct in the telecommunications sectors as the “public convenience and necessity may require.” The Federal Trade Commission can broadly regulate “unfair methods of competition” as well as “unfair or deceptive acts or practices.”
These agencies and others can initiate litigation inhibiting unfair corporate conduct that harms workers, small businesses, and the public. Some federal agencies can even initiate broad market-wide rules proscribing the targeted conduct altogether - without the need for intervention by Congress. Moreover, many agency leaders are protected from being removed at will from their position by the President and can only be removed for “inefficiency, neglect of duty, or malfeasance in office,” giving them exceptional insulation from the traditional political process and the immense social pressures that come with it.
Like the process of appointing federal judges, the Senate can unilaterally appoint leaders to these powerful administrative agencies without the House's input. The leaders of these agencies then have significant discretion (often using a judicial doctrine known as Chevron Deference that requires reviewing courts to defer to an agency’s reasonable interpretations of a statute the agency enforces) to operate the agency and use their congressionally delegated power to regulate the economy.
To assist agency leaders, in February 2022, I authored an extensive paper published by the Open Markets Institute, where I am currently employed, detailing the legislative powers delegated to ten administrative agencies as well as multiple recommendations for the kinds of regulations those agencies should enact that would facilitate an antimonopoly policy agenda and significantly tame corporate power in the United States.
In the face of a divided Congress, the administrative state is more important than ever to enact a robust legislative agenda - and, as I describe in my paper, it is more than capable of doing so. The Senate should move swiftly to appoint agency leaders, like confirming Gigi Sohn to the FCC, as quickly as possible. Agency leaders should also waste no time vigorously enforcing their congressional mandates as well as proposing and enacting sweeping regulations to regulate unfair corporate practices. There is now simply no excuse for lethargic behavior. The public deserves and expects action.
Thanks for reading.
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