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Introduction
I served President Ronald Reagan in three capacities: first as executive director of his Task Force on Regulatory Relief and concurrently as administrator for information and regulatory affairs at the Office of Management and Budget (OMB); next as chairman of the Federal Trade Commission (FTC); and, finally, as director of OMB. I wrote this book to offer future historians and the present-day public a firsthand account of what was accomplished during my tenure as FTC chairman, from October 1981 to October 1985. I do so with full recognition that present perceptions—both mine and the critics—form at best an incomplete basis for the verdict of history.
Fifty years from now historians will judge the president’s economic policies and those of his executives and administrators by the four criteria he set forth in February 1981: budget restraint, tax reductions, regulatory reform, and monetary stability—a most ambitious agenda. I write this as one who is extremely proud to have participated in each of these programs. I am proud of the truly remarkable results: record peacetime expansion; more than 17 million new jobs created after 1980; and dramatic reductions in inflation, unemployment, and interest rates.
I am especially proud of the increased competition and consumer choice Americans enjoy as a result of the president’s regulatory reforms and of having played a role in the reform of an agency whose mission is to promote those ends. The FTC, the nation’s second-oldest independent regulatory agency, was established by Congress in 1914 after extensive debate over the proper mandate for the agency. Some advocated the creation of a powerful watchdog able to regulate business practices in minute detail—controlling security issues, setting maximum prices for products of “dominant” firms, and setting hours and wages of labor. President Woodrow Wilson, however, fearing that special interests would capture the agency’s regulators, argued that reliance on open, competitive markets was far superior to pervasive regulation.1 In the end Congress endorsed Wilson’s vision: the commission would investigate, publicize, and remedy market failures that restrained competition and damaged consumers; but it would not engage in comprehensive oversight of business activities.2
After the election in November 1980, President-elect Reagan asked me to head his transition team on the FTC. In reviewing its recent activities, we found that the agency had strayed far beyond the vision of Wilson and in many respects had come to embrace the interventionist, paternalistic approach that Congress had rejected in 1914. It had engaged in repeated efforts to extend the scope and reach of the nation’s antitrust laws beyond any reasonable interpretations of its mandate—losing more than 55 percent of such cases on appeal. The commission expanded its regulatory powers over consumer protection so far that the Washington Post conferred on it the title “national nanny.” Congress became so angry that at one point it closed the agency and President Carter had to intervene to restore its financial support. Ronald Reagan made reform of the FTC and other regulatory agencies a pillar of his 1980 campaign.
Those of us who thought running the FTC the Reagan way would be a bed of roses were quickly disabused of that notion. We soon found ourselves caught between zealots of the left, who saw every sign of retrenchment as further evidence of Reagan’s disaffection for consumers, and zealots of the right, who were so enraged by FTC excesses that they wanted to close the place down.
Between those two extremes the team that took over the FTC in October 1981 set out to rehabilitate the agency by returning to the principles enunciated by President Wilson and embraced by Congress in 1914. We would not regulate business practices in minute detail but would focus our priorities on those business practices most likely to create monopoly power, raise prices substantially, or defraud consumers or otherwise violate their rights under the FTC Act. We also saw a compelling need for clarification of the meaning of “unfair and deceptive” business practices in the commission’s enabling statute. And we found ourselves thrust into a well-organized, massive effort to emasculate the agency’s power to regulate business practices in the increasingly important service sector of the economy.
Clarification of our enabling statute was needed for two reasons. The commission’s charter reads: “unfair methods of competition and unfair or deceptive acts or practices . . . are unlawful.” But what does “unfair” mean? What does “deceptive” mean? No one knew for sure, but everyone agreed that such vague language had allowed the commission to exercise wide latitude in drawing its own conclusions. The lack of specificity in the statute left businesses with little guidance concerning what was lawful and what was not. They often found themselves in a sort of Skinner box, where the commission could ring bells and mete out punishments when someone took a wrong turn and, just to make it interesting, change the maze every now and then. Little wonder that the agency had been called the second most powerful legislative body in America.
At the same time the new team was well aware of an organized effort to chip away at the commission’s authority to regulate business practices in the growing service sector. The American Medical Association and other professional organizations were trying to persuade Congress to eliminate FTC jurisdiction over the “learned professions,” such as physicians, dentists, lawyers, engineers, and accountants. Our response was simply that the commission’s laws and rules should make sense and should be carefully articulated but should apply to everyone, with no exceptions. Thus, while we urged Congress to clarify our basic statute in accordance with original congressional intent, we also urged it to reject initiatives seeking special exceptions to the reach of the commission’s power and authority.
This volume presents a condensation, reorganization, and updating of speeches, articles, congressional testimony, adjudicative decisions, and other statements I prepared while chairman of the FTC. The selections explain why we took certain steps to reorder priorities and change our modus operandi. Most important, they provide evidence of our commitment to articulate, as well as to enforce, rational and coherent rules for business behavior. On grounds of equity as well as efficiency, business activities should be governed by rules, not by unbridled discretion exercised by fallible and sometimes unpredictable individuals.
Chapter 1 sets forth the Reagan team’s philosophy of consumer protection and antitrust. It provides our interpretation of the founders’ vision. It explains our skepticism about detailed regulation and offers our rationale for when intervention is justified and why we view competition as the best protector of consumers and the surest prescription for maximizing economic growth and individual liberty.
Chapter 2 sets out the reforms we adopted related to the agency’s consumer protection mission. I address three areas: clarification of the legal definition of “unfair,” clarification of the legal definition of “deceptive,” and revision of the commission’s requirement for advertising substantiation. These concepts were extremely vague, and the commission’s incoherent enforcement policies had proved disruptive to the nation’s businesses and thus had imposed costs on consumers. Not surprisingly, the regulation of advertising was an exceedingly controversial area during my administration. Although unconstrained incentives usually ensure good performance in the market for information, occasional market failures justify governmental intervention. The commission’s major technique for dealing with these instances is to require that advertisers be able to substantiate the objective claims they make. But whether such claims must always be substantiated before the claims are made, what kind of substantiating evidence should be required, and which claims require substantiation were all at issue, as was the commission’s application of these principles in particular situations.
The FTC shares with the Department of Justice the enforcement of the nation’s antitrust laws. Chapter 3 explains how, in parallel with the Reagan Department of Justice, the Reagan FTC reordered its antitrust priorities according to whether economic analysis suggested that intervention would make markets more rather than less competitive. This approach, which marked a departure from the commission’s policies of the 1970s, was part of an evolutionary process already under way in the nation’s courts and, to a lesser extent, in the commission itself. The process had its genesis in the writings of antitrust scholars in the 1960s. I also present our views regarding the proper extent of the commission’s regulatory and antitrust oversight of the business activities of the professions.
The issues of industrial “competitiveness” and trade policy were among the most important topics in Washington during the 1988 campaign. Like most professional economists, I believe government policies do affect industrial progress and should be designed with that in mind. But I also believe that some of the more seductive proposals for industrial competitiveness, or industrial policy as it was called in the early 1980s, run counter to the commission’s mandate to protect consumers and promote a competitive marketplace—as would a return to the protectionist trade policies of decades past. In keeping with the vision of Woodrow Wilson, a courageous advocate of decentralized competitive markets and an opponent of protectionism, the Miller FTC devoted considerable time to testifying before Congress and otherwise publicizing the pitfalls inherent in such policies. Chapter 4 provides a synthesis of my speeches, statements, and testimony on these timely and immensely important issues.
Chapter 5 addresses the issue of the overall fairness of our reforms. It relates to our emphasis on benefit-cost analysis and to our view of the legal process and of the proper relations of the commission with Congress. Finally, chapter 6 summarizes what I think we accomplished and how durable those reforms will prove to be. In addition, I offer some thoughts on likely future directions for the commission.
Notes
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