Working the Agency That's Enacting the LawApril 8, 2010 - by Donny Shaw
People generally think of Members of Congress as influencing policy through committee work, floor debates, public advocacy, and other stuff that might be on C-SPAN or proudly announced in a press release from their office. But, I’m sitting here reading through the Federal Trade Commission’s rule to ban deceptive marketing of “free” credit reports, as required by Congress in the 2009 credit card reform bill, and it’s a great example of the type of work that lawmakers do to influence policy that, while technically disclosed to the public, flies way beneath the radar of anything anyone is paying attention to.
In the initial rule proposal, the FTC was going to require all private websites that claimed to offer “free credit reports” to have separate landing pages that take up the full screen, provide a disclaimer that they are not the official site for getting free annual reports as provided by federal law, contain no other graphics, and link to the real site — www.AnnualCreditReport.com. But the FTC ended up cutting the landing page requirement from the final rule they promulgated, citing opposition from Rep. John Boozman [R, AR-3] and prominent Blue Dog Rep. Mike Ross [D, AR-4] and business interests.
Businesses and industry groups, as well Representatives Boozman and Ross, opposed the separate landing page. These commenters raised one or more arguments, including that requiring a separate landing page: (1) exceeds the FTC’s statutory authority; (2) impermissibly restricts truthful commercial speech, thereby implicating First Amendment concerns; (3) departs from longstanding FTC policy on ‘‘prominent’’ disclosures in close proximity to the relevant advertised claim; and (4) would confuse consumers or may discourage them from seeking their file disclosure.
If you dig deep enough in the FTC’s website, you can actually find Ross and Boozman’s comment re: the landing page. Here’s a link to it (.pdf). They argued that people who are trying to find their credit score would be confused by the landing page and may even think it was a phishing site. “Consumers should not be discouraged from visiting sites that offer products and services that contribute to financial literacy and help them better understand the credit history,” they argued. And ultimately their argument prevailed.
This is a pretty substantial change in policy that seems to have happened at the behest of members of Congress, but outside of the realm of what we typical think of as the work of Congress. If all public comments from members of Congress on proposed federal rules were put into a centralized public database, we would love to post it on OpenCongress along side all the info about their actions we are already displaying — what bills they are submitting, how they are voting, who’s funding their campaigns, what’s being said about the online, etc. Since comments on rules are part of how members of Congress wield their influence to affect policies that affect the rest of us, the rules are part of the information the public should have access to when they are deciding who they want to represent them at the federal level.