Controlling the power of the FTC

A 1981 study of the agency edited by Kenneth Clarkson and Timothy Muris (then FTC BCP Director and future Chairman), concluded that the FTC was largely uncontrolled by other branches of government. Clarkson argued that Congress had only a limited ability to oversee it, and that oversight and ad hoc monitoring rarely influenced the agency.[1]  The executive branch has several levers to rein in the Commission, including choice in appointment, scrutiny focused on major efforts of the agency, and Office of Management and Budget trimming of the FTC’s budget.[2] However, since President Franklin Roosevelt’s failed attempt to remove a Commissioner, the executive has largely not intervened in FTC activities. The FTC has several autonomy-preserving features (commissioner tenure, for-cause removal, multi-member composition, litigation and adjudication authority) that make it more independent from the executive than other agencies. Muris argued that, since the 1930s, the courts have deferred to the FTC on policy matters, especially when it uses Section 5 as the basis for action: “The courts place almost no restraint upon what commercial practices the FTC can proscribe…”[3]

On the other hand, Charles Mitchell, in his study of interactions between Congress and the FTC from 1970-1983,[4] found that Congress substantially influenced the agency, but only with sustained effort: “In many different matters, Congress was able to change an FTC policy only after years of effort.” Mitchell continues, between 1970-1977 Congress passed several laws, transforming it from “a lethargic commission into an aggressive antitrust and consumer agency.” Mitchell emphasizes the appropriations committees as primary sources of oversight and interference.

[1] Kenneth W. Clarkson, Legislative Constraints, in The Federal Trade Commission Since 1970: Economic Regulation and Bureaucratic Behavior (Kenneth W. Clarkson and Timothy J. Muris, eds., 1981).

[2] Kenneth W. Clarkson, Executive Constraints, in The Federal Trade Commission Since 1970: Economic Regulation and Bureaucratic Behavior (Kenneth W. Clarkson and Timothy J. Muris, eds., 1981).

[3] Timothy J. Muris, Judicial Constraints, in The Federal Trade Commission Since 1970: Economic Regulation and Bureaucratic Behavior (Kenneth W. Clarkson and Timothy J. Muris, eds., 1981).

[4] Charles Louis Mitchell, Federal Trade Commission Policy Making and Congress 1970–1983 (1984) (Ph.D. dissertation, University of Tennessee).

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