How Congress lost control of the regulators

[Commentary] The dangers to the US economy -- if not its democracy -- of the growing trend of regulatory bargains are profound. Advanced economies are "advanced" largely because of the rule of law. Yet, in a new paper by the Phoenix Center for Advanced Legal and Economic Policy Studies, "Eroding the Rule of Law: Regulation as Cooperative Bargaining at the FCC," the authors conclude that regulation in the US is "mov[ing] away from the rule of law and due process" so that deals may be cut to satisfy the whims and caprices of bureaucrats. To illustrate this growing and troubling phenomenon, the Phoenix Center uses the Federal Communications Commission (FCC) as a case study (although the analysis can easily be applied to other regulatory agencies as well). At the center of the analysis is the identification of a growing phenomenon that the Phoenix Center labels as "issue bundling."

As the Phoenix Center explains, issue bundling occurs when the regulator and the regulated make a deal to combine a variety of unrelated issues in exchange for regulatory relief. Unfortunately, given the complexity of the problem, quick solutions to regulatory issue bundling are not immediately available. However, we can at least take some small comfort by the fact that the phenomenon is now identified. Hopefully, Congress will take note and give regulatory issue bundling the attention it deserves when conducting its oversight role.

[Spiwak is the President of the Phoenix Center for Advanced Legal & Economic Public Policy Studies]