Ernst on the New Deal FCC

My latest, "The Shallow State: The Federal Communications Commission and the New Deal,"  University of Pennsylvania Journal of Law & Public Affairs 4 (May 2019): 403-458, is now available from SSRN and Penn Law's online repository:

Eugene Octave Sykes (LC)

American lawyers and law professors commonly turn to the New Deal for insights into the law and politics of today’s administrative state.  Usually, they have looked to agencies created in the 1930s that became the foundation of the postwar political order.  Some have celebrated these agencies; others have deplored them as the core of an elitist, antidemocratic Deep State.  This article takes a different tack by studying the Federal Communications Commission and its predecessor the Federal Radio Commission, an agency created before the New Deal.  For most of Franklin D. Roosevelt’s first two presidential terms, the FCC languished within the “Shallow State,” bossed about by patronage-seeking politicians, network lobbyists, and the radio bar.  When Roosevelt finally let a network of lawyers in his administration try to clean up the agency, their success or failure turned on whether it could hire the kind of young, smart, hard-working lawyers who had at other agencies proven themselves to be the “shock troops of the New Deal.”  Only after James Lawrence Fly, formerly general counsel of the Tennessee Valley Authority, became chairman and hired lawyers like himself did the FCC set sail.  It cleaned up its licensing of radio stations and addressed monopoly power in the industry without becoming the tool of an authoritarian president or exceeding its legislative and political mandates.

I’m quite grateful to Amanda L. LeSavage, the Editor-in-Chief for Volume 4 of the Journal of Law & Public Affairs, and other members of her staff who worked on what I know was a challenging piece.