Document Type

Article

Publication Date

2-2024

Abstract

Administrative law is under attack, with the Supreme Court reviving, expanding, and creating doctrines that limit the authority and autonomy wielded by regulatory agencies. This anti-administrative turn is particularly alarming for financial regulation, which already faces enormous challenges stemming from the dynamism of modern finance, its growing complexity, and fundamental contestability. Yet that does not mean that defending the current regime is the optimal response. The complexity and dynamism of modern finance also undercut the efficacy of established administrative procedures. And the panoply of financial regulators with unclear and overlapping jurisdictional bounds only adds to the challenge. Both these procedural and structural challenges put greater pressure on Congress to act, but partisanship and other challenges are making such action more challenging than ever.

This Article tackles the question of how to enhance the willingness and capacity of even a reluctant Congress to engage in the legislation and oversight that the current judiciary is demanding. It argues that having Congress pre-commit to convening congressional commissions every ten years to survey the changing landscape, identify emerging threats, and propose reforms when appropriate could go a long way in enhancing Congress’s capacity to act and serve as a prompt to such action. Like administrative agencies, commissions can be used to harness the specialized insights of experts on a range of technocratic policy issues. They can also incorporate more diverse and independent perspectives on these issues, connect them to broader questions about the role of finance in society, and help galvanize the public and political will needed to bring about regulatory reform. Moreover, unlike administrative agencies, commissions can provide ex ante guidance that informs the political process, enabling a different and complementary way to combine public participation, expert analysis, and congressional oversight. Looking to the historical use of commissions in finance and other domains as a guide, the Article shows how institutionalizing decennial commissions can help enhance both the quality and legitimacy of financial regulation. Commissions are no magic bullet, but they could constitute a useful, if modest, step in efforts to enhance the institutional design of Congress within the constitutionally prescribed parameters.

Disciplines

Administrative Law | Banking and Finance Law | Law

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