Net Neutrality Regulation, Accountability & Democracy

Proponents of Net neutrality regulation continue their full-court press to get the Federal Communications Commission (FCC) and its chairman, Julius Genachowski, to unilaterally push through a new industrial policy regime for the Internet. The latest word, according to Politico, is that the agency is pushing back its scheduled December open meeting from Dec. 15 to Dec. 21 to give the agency more time to plot its next move.  There’s no word yet what the agency’s regulatory blueprint will look like, so it’s impossible to critique the agency’s plan at this point.  I’ve made the case against Net neutrality regulation here before, however, and I’m sure those same concerns and critiques will apply to whatever the agency ends up adopting.

What’s most concerning about the way this process is playing out currently is just how anti-democratic it is.  I understand the zeal of the pro-regulatory forces on this issue, but there is simply no good excuse for advocating that 3 unelected officials at an independent regulatory agency rush through a vote to regulate a such a massive and important sector of the American economy.

It used to be the case that a broad and non-partisan coalition of academics and organizations supported the non-delegation principle, which, generally speaking, refers to the notion that only democratically elected officials should be in a position to pass laws and make the really important decisions about the future course of our polity and its economy.  Of course, when it comes to the economy, I’d prefer most of those decisions be left to marketplace experimentation.  However, to the extent regulation is deemed necessary and that regulation governs such a massively important portion of the American economy, that determination should definitely be made by elected leaders in Congress and not delegated to bureaucrats who would ram through regulations with 3 votes and sketchy plan for reordering that sector.

On this point, I strongly recommend the work of David Schoenbrod, a professor at New York Law School and the author of Power Without Responsibility: How Congress Abuses the People Through Delegation. Here’s a great overview of his work in which he addresses the arguments against the anti-delegation principle.  In sum, there really aren’t any good arguments against it.  “The genius of our Constitution was that the people would get to decide how much government they want,” Schoenbrod notes. If critics believe that “the people’s welfare would be advanced by giving up some of that decisional power, let the people so decide through the constitutional amendment process,” he argues.  “Instead, the insiders have done that for them” and that undercuts accountability, transparency, and true democracy.

That’s a principle that many people of different political persuasions have long supported.  Regrettably, however, when it comes to Net neutrality regulation, it’s increasingly clear that the ends justify the means for proponents.  To hell with democracy and accountability, they say. We want regulation and we want it now!  That’s obviously the rallying cry of radical pro-regulatory organizations like Free Press and Public Knowledge.  What’s more surprising, however, is how even more mainstream advocates of Net neutrality regulation seem willing go down that path.  That’s a real shame because I know some of them have fought against unaccountable exercises of power by the FCC in other contexts. Yet, in this case, it appears that they are turning a blind eye to the dangers of delegating so much authority to a regulatory agency that, quite frankly, has a fairly miserable history of (mis)managing its own affairs and the markets it oversees.

The recent elections had a impact on all this, obviously.  With presumably less of an appetite in Congress now for expansive regulation of the Internet economy, advocates of Net neutrality mandates want the FCC to do all the dirty work here.  Regardless of the merits of the arguments for or against such regulation, it’s simply not good for our democracy when we shift all those really important decisions to bureaucracies, which are less accountable to the people and where reforms take longer to push through when things go bad.

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