The third time will apparently be the charm for the Federal Communications Commission’s “net neutrality” regulations. Having been shot down twice by the courts in earlier attempts to regulate broadband, members of the commission—enterprising bureaucrats that they are—found new legal authority for their power grab.
However one feels about the new rules, it is inarguable that this is not how the Founding Fathers designed our government to operate. “All legislative powers herein granted shall be vested in a Congress of the United States,” reads Article I of the Constitution. To prevent its misuse, the awesome power to make laws was split between two chambers. By design, governance requires the diverse representatives of the governed to find consensus.
The first Congress had more than 90 voting members; the current one has 535. The FCC, by contrast, has 5 members, only 3 of whom agreed on the net neutrality rules. That was enough to promulgate 300 pages of regulations that have the effect of law.
The FCC’s action is all the more galling because Congress has been actively debating broadband legislation. Sen. John Thune (R-S.D.) and Rep. Fred Upton (R-Mich.) circulated a draft bill in January.
Of course, the FCC’s action was not a rare instance of unaccountable government. Today’s executive agencies make law as a matter of course, and generate a ton of it. At agencies’ current pace of about 4,000 regulations issued annually, a new federal rule is created roughly every two hours. Lay the 170,000 pages of the Code of Federal Regulations end to end and it would leave a trail of impenetrable text 29.5 miles long.
When one considers Congress enacts perhaps 50 meaningful statutes per year, it becomes plain that the first branch no longer is our nation’s primary lawmaking body. America has morphed into the expert-led state imagined by John Stuart Mill in his 1861 treatise Considerations on Representative Government. Civil servants devise policy and the legislature serves mostly as a pressure valve for vox populi.
Instead of the function of governing, for which it is radically unfit, the proper office of a representative assembly is to watch and control the government; to throw the light of publicity on its acts; to compel a full exposition and justification of all of them which any one considers questionable; to [censure] them if found condemnable, and, if the men who compose the government abuse their trust, or fulfill it in a manner which conflicts with the deliberate sense of the nation, to expel them from office, and either expressly or virtually appoint their successors. This is surely ample power, and security enough for the liberty of the nation.
Mill’s conception is eerily prescient, but rather different from the government the American Framers intended. In our constitutional system, agencies are created to execute the laws made by Congress. Toward this end, they are obliged to issue rules clarifying how a law should operate in practice. These rules should not expand the scope of the law as written or establish new powers beyond those explicated in the statute.
Emblematic of the modern administrative state was the Environmental Protection Agency’s “tailoring rule,” which targeted greenhouse gas emissions before it was struck down a year ago by the U.S. Supreme Court for attempting to “bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization.” Alas, that case was far from an anomaly. According to Sam Batkins of the American Action Forum, courts have invalidated more than a dozen regulations in recent years, issued by agencies ranging from the Department of Health and Human Services to the Securities and Exchange Commission. Undoubtedly, the FCC’s net neutrality rules likewise will be challenged in court, contributing to significant economic uncertainty for the broadband industry, major content providers, and the peerage market that connects the two.
Congress at long last may be wearying of regulatory overreach. A spate of regulatory reform bills has been introduced recently.
- Sen. Pat Roberts (R-Kan.) proposes that agencies be limited to issuing regulations whose benefits justify their costs and are drafted to “impose the least burden on society.”
- Sen. Mark Kirk (R-Ill.) has legislation that would slow the ceaseless growth of the Code of Federal Regulations by imposing seven-year expiration dates (“sunsets”) on some regulations.