American Habits: Ballot box versus bureaucrats

Democracy has sprung a leak. While the American public’s eyes are trained on political pageantry, our pockets are being picked. Pundits scream about political candidates as if they alone can destroy or save democracy as we know it. Beneath this high drama, however, is a quieter but more insidious threat to democracy than any one election.

That threat is the unrelenting growth of the administrative state. Administrative agencies have become lawmakers in their own right, often adopting rules governing much of American life outside the influence of Congress and often even the president. In 2023, federal agencies published 2803 final rules in the Federal Register (the official journal containing government agency rules). Congress, meanwhile, passed 27 bills that year, less than 1/100 the number of federal rules. And that does not even touch the many informal guidance documents and agency adjudications through which agencies also govern the American public.

These agency rules are not just housekeeping measures that clear up small details. Many regulate American life in ways that impact the economy and affect everyday Americans. Take, for instance, the Federal Trade Commission’s recent ban on non-compete agreements adopted in April. Non-compete clauses are common in job contracts, in which an employee agrees not to work for their employer’s local competitors for a certain period, typically in exchange for specialized training. Whether the substance of the rule is good or bad, it flouts the democratic process.

If the non-compete agreement ban went through Congress, it would have to survive the traditional gauntlet — two houses filled with hundreds of lawmakers elected by and answerable to their constituents. It would have to survive a potential filibuster and presidential veto. In fact, a proposed bill banning non-competes did attempt this gauntlet in 2021 but failed.

Despite democracy’s voice on the matter, three unelected bureaucrats decided the American public was wrong. The FTC only needs a majority vote of a five-member board made up of people with no electorate to answer to. There are no vetoes, no filibusters, and none of the handshakes and hard work that go into making legislation — just three people insulated from public influence. Worse yet, the FTC is a so-called independent agency, meaning the president and Congress lack direct control over its activities. As one of the dissenting FTC commissioners put it, “The difficulty of legislating in Congress is a feature of the Constitution’s design, not a fault. The administrative state cannot legislate because Congress declines to do so.”

The typical excuse for this constitutional workaround is that Congress cannot expect to address every little detail so agencies can fill in gaps in the law. But the non-compete ban does more than insert mortar between the bricks of legislation — it builds a whole new wall. The Federal Trade Commission Act, on which the FTC relies as authority for its non-compete ban, forbids “unfair methods of competition.” Congress shares some blame for adopting a statute that leaves the major details to an agency, but there is no question that a ban on non-competes is not just filling gaps in the statutory text. It’s making law in its own right. With federal agency rulemaking available, Congress’s failure to adopt the non-compete ban is just a nicety. If the democratic process fails to achieve what the administration wants, they can just do it themselves.

Federal agency rules do not just undermine our votes at the polling place. They also restrict our ability to vote with our feet. Under our federal system, we are conducting 50 democratic experiments, with each state taking a different approach to a wide range of policy issues. If we do not like how our state is conducting its affairs, we can vote with our feet and head to a state with a different approach.

In the case of non-competes, most states allow them and a few have banned them. Now, the FTC has shut down this ongoing experiment. Thus, no vote with pen nor with feet can impact this issue. Of course, any federal law takes some matters out of states’ hands. But members of Congress — beholden to state constituents — are far less likely than five FTC commissioners to federalize an issue that traditionally belongs to the states.

This threat to democracy is not hiding in the shadows. It is parading in broad daylight while the American public’s attention is glued to the kabuki theater galumphing through our social media feeds. The threat of agency lawmaking may not be as enthralling as Stormy Daniels’s steamy trial testimony, but it is a far graver concern for democracy than the identity of the person who will sit in the Oval Office for the next four years.

We should care about voting in the right people. But we also need to make sure that the people we vote in are the people who are actually in charge.

This op-ed originally ran in American Habits on June 10, 2024