THE PERILS of the Federal Trade Commission continue. It runs out of money today but, apparently, Congress is going to provide enough sometime next week to keep the commission in business through April. During that time, pressumably, the House and Senate will at last decide what to do about its rambunctious behavior.
No one on the Hill, or so it seems, wants to kill the FTC. Even some of those who tried hard to cripple it are now backing away from the support they once gave to special-interest limitations on its power. But a new threat in an old form -- the legislative veto -- has reared its ugly head in a way that may make the FTC its first victim among the independent regulatory agencies.
The deal said to be in the works is that the House will drop all or most of the restrictions it voted to put on the FTC if the Senate will go along with a strong version of the legislative veto. That may be tempting, even to the FTC's strongest supporters, because it would permit the commission to survive, almost intact, the most serious assault on a regulatory agency in years. But it is, nevertheless, a bad idea.
Any legislative veto of the kind being contemplated on the Hill raises serious constitutional and practical problems. In its worst form -- an arrangement under which a committee of either house could veto by majority vote any new FTC rule -- the commission would become nothing more than an extension of the committees' staffs. Even in the best possible form -- a veto to be exercised by majority vote of both houses -- this device would undermine the independence of an agency that was created in part precisely because its independence was needed. Of course, the legislative veto will have such effects only if it is constitutional. Probably it violates the doctrine of separation of powers.
There is a large measure of sham in the agitation in Congress for creation of a legislative veto -- eight bills containing some form of it became law last year. Congress has always had a "veto" over all the rules and regulations issued by any regulatory agency. It can reject any rule, promulagted by the FTC or anyone else, any time it can muster the votes to pass a "law." Laws do not require the president's signature to become effective, but Congress even has power to override that requirement if it wants to. What proponents of the legislative veto are really seeking is an easy way to do a job the Constitution makes difficult.
The proper form of the legislative veto is the kind that the Senate attached to the FTC bill earlier this year. It provides that new rules do not go into effect until Congress has had time to consider passing a law to override them. That approaches the problem of overregulation squarely and avoids the evils of shortcuts. It is the only rider on the FTC bill that should survive. All the others, spawned by inerests as diverse as funeral directors and cereal manufacturers, deserve a quiet burial.