The Case for Agency Authority

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One of the first lessons I learned as an advocate at Public Knowledge? “Regulation” and “rulemaking authority” are dirty words in too many parts of Capitol Hill. This is perhaps unsurprising to people who have worked on tech and telecom policy longer than I have. Or, for that matter, to people who work on environmental policy or any number of other issues. Nonetheless, this is my case for why I am pro-agency rulemaking authority, and you should be too.

  1. Agencies Are Nimbler Than Congress

You know when the Communications Act (aka the law at the center of the net neutrality debate) was last meaningfully updated? 1996. For those keeping score, that was when early adopters were still using dial-up internet. It would be four more years before broadband internet reached four percent penetration. The last time the Act was updated prior to 1996? 1934, the year it originally passed

When was the last time the Electronic Communications Privacy Act was updated? Well, it passed in 1986 – before the advent of the World Wide Web – and has not been meaningfully updated since.

When was the last time your iPhone was updated? Or Facebook released a new feature? Gmail is rolling out its latest update right now. If you’ll excuse the metaphor, the tech industry comes up with new innovations and updates its products and practices at gigabit speeds. Congress is still using dial-up. Or maybe the Pony Express. And, last time we checked, no one is throttling Congress. The legislative process was simply designed to be slow.

By contrast, agencies with rulemaking authority can move nimbly, responding to changing circumstances and technology in closer to real time.

  1. Agencies Have Relevant Expertise

Members of Congress and their staffs are the ultimate generalists. It’s not weird for a House staffer to cover small business, agriculture, criminal justice, education, and urban policy or, for that matter, criminal justice, civil rights, infrastructure, transportation, defense, veterans’ affairs, AND other issues. On the Senate side, portfolios can be smaller, but even there, they might include, for example, transportation, homeland security, labor, and trade issues. And, of course, the members themselves are the ultimate ultimate generalists with every member covering, well, every issue under the sun.

By contrast, people who work at agencies tend to build deeper, specialized knowledge on the issues within their agency’s mandate. For example, folks who gravitate toward the Federal Communications Commission probably know a whole lot and care a whole lot about, well, communications. Similarly, if you’re working at the Department of Education, you’re more likely to have deep knowledge of and passion for education.

This is, of course, not a perfect science: Former Federal Trade Commission (FTC) Commissioners have complained that the FTC, which has a huge mandate, covering all of consumer protection and competition, needs to be better resourced and better staffed in order to keep up with its copious mandate. Still, aside from a few members of Congress with a particular passion for consumer protection and competition, the FTC is likely to be staffed with more relevant experts than Congress is.

Who do you want setting the minute details of policy? Technical experts with deep understandings of the specific issues they are regulating or generalists who have some knowledge of a wide variety of issues, many of which are entirely irrelevant to the issue at hand?

  1. Opportunities for Public Participation

Okay, I hear you thinking, but our members of Congress are elected and (at least in theory) represent us; who elected those agency bureaucrats?

First, it’s not like agencies are completely freelancing. In order for an agency to do anything at all, Congress needs to delegate authority to the agency.

Moreover, whenever an agency wants to promulgate a rule, it must first put forward the rule for public comment. And that’s not all. Unlike your member of Congress, who can file your comment in a folder never to be consulted again, the agency actually has to take the public comments into account and respond to them in the final rule.

While that doesn’t always mean the agency will reach the right result – see Federal Communications Commission Chairman Pai ignoring the millions of comments favoring the 2015 net neutrality rules – but where agencies ignore comments, they make themselves vulnerable to suit for making decisions that are unsupported by the evidence and/or arbitrary and capricious. You can’t sue your member of Congress for failing to follow your advice, and you can’t compel your member of Congress to respond to your comments.

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So how does this work in real life? Say Congress wanted those pesky privacy policies that no one reads to actually be concise, comprehensible, and consumer-friendly to the point where consumers might actually understand what companies are doing with their personal information. Congress could, in theory, spell out every single requirement for a privacy policy. Or, they could tell the FTC, which again, has expertise in consumer protection, to figure out what makes the most sense. As described above, the advantages of this second approach are that the agency has the relevant expertise and that the agency can nimbly – and with public input – update its rules as company practices change. On the flip side, can you imagine members of Congress, some of whom don’t understand very much about the internet works – much less individual companies’ practices – deciding, by committee, what precisely consumers should be notified of? Assuming they could reach an agreement, the law would be out-of-date the next time Facebook, Apple, or Google releases a new feature. It’s time to clean up rulemaking’s bad rap and recognize its utility for responding to today’s cutting-edge problems.


Image credit: Boston Public Library

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