Far From Fair, Farther From Efficient: The FTC and the Hyper-Formalization of Informal Rulemaking

Partially concerned with the proliferation of the “New Deal” agencies, Congress saw theAPAas a “compromise measure.” That is, Congress designed it to afford “uniformity and fairness in administrative procedures without at the same time unduly interfering with the efficient and economical operation of government.” Scholars and jurists from across the political spectrum have recognized that the notice-and-comment process allows for relative flexibility that can help “foster better government” by setting policy prospectively and expeditiously, thereby striking a reasonable balance between fairness and efficiency. In contrast to adjudicative measures, informal rulemaking can offer holistic treatment to market disorders—with considerable public input—without having to rely on “whack-a-mole” triage that is less publicly accountable and, in some ways, more inequitable for regulated entities. For the FTC and other stakeholders, these benefits remain elusive. Despite the D.C. Circuit upholding the FTC’s authority to create substantive rules in 1973, Congress passed the Magnusson-Moss Warranty, Federal Trade Commission Improvement Act (Mag-Moss), which sanctioned the FTC’s power of substantive rulemaking. But in doing so, Congress established a “hybrid” rulemaking system in an effort to provide more “due process” safeguards than § 553 of theAPA, but less than would be in the adjudicatory context. Congress augmented the procedural “safeguards” over the next two decades; most significantly in 1980 and 1994. Consequently, if the FTC now wishes to promulgate, substantively amend, or repeal binding trade rules proscribing certain “unfair or deceptive acts or practices,” it must identify the practice as “prevalent” before adhering to an eighteen-step, trial-like process that jettisons all the advantages of informal rulemaking in exchange for exceedingly expensive glacial deliberation. Indeed, it is a process that can take up to over a decade merely to amend a rule. To put this in perspective, when granted authority to promulgate new rules under § 553, the FTC’s promulgation can often take only a few months, even when providing opportunity for public input beyond notice-and-comment. Whatever may have been the true motives of Congress in passing Mag-Moss, it cited the FTC’s difficulties in protecting the consuming public, over-reliance on adjudicative measures like cease-and-desist orders, and a lack of public understanding regarding agency intention. Almost four decades later, those good intentions have helped entrench, if not exacerbate, the very problems Congress sought to ameliorate. Finding the Mag-Moss process to be prohibitively profligate, the FTC has refrained from proactively initiating rulemaking proceedings, instead favoring enforcement actions and non-binding guidelines. In the last two decades, Congress has at times granted the FTC—largely as a result of FTC lobbying efforts—the power to promulgate rules through notice-and-comment procedure, but only on a temporary ad hoc basis. Scholars have partially addressed this issue through what is known as the “ossification” thesis: cumbersome procedures, “hard look” judicial review, and probing executive oversight have notably diminished the pace and volume of rulemaking. Some of the ossification scholars’ prescriptive proposals have discussed guidance documents as “de-ossifying” methods, while their diagnostic analyses tend to focus more on the judiciary’s role in regulatory ossification. However, some evidence suggests that agencies such as the FTC cannot adequately address the pernicious practices of some market actors through adjudication and voluntary guidance documents alone. Nor does the FTC’s remedy lie in the softening of judicial review. Therefore, this Article exclusively focuses on the effects of congressionally-imposed strictures, and uses the case of the FTC to argue that in the context of administrative rulemaking, efficiency should not be sacrificed at the altar of formality