The agenda-setting phase of the regulatory process is critically important. In a time of constrained agency budgets and mounting policy challenges, an agency may send an important signal to market participants simply by placing an issue onto its agenda. Agency agenda-setting can also frame subsequent policy debates.
Agenda-setting is a difficult topic to study partly because the public cannot systematically observe items omitted from the agenda. Recent work has made progress in the rulemaking context, finding that Congress, interest groups, and agency staff all shape the rulemaking agenda; the White House and courts play a lesser role. An excellent workshop put on by the Penn Program on Regulationrecently explored regulatory agenda-setting and a report summarizing the discussion will soon be available.
Last week, the Treasury Department engaged in what I call “agency-to-agency” agenda-setting. Treasury issued a broad request for information and comment on a difficult emerging issue: regulation of online marketplace lenders such as Lending Club and Prosper. The request raises many difficult issues, including whether such online marketplaces should be required to retain risk in their loans.
I use the term “agency-to-agency” agenda-setting because Treasury’s effort appears largely geared at prompting other regulatory agencies. Treasury itself lacks significant statutory authority to issue rules but notes that other agencies including the FTC and the CFPB may have such authority. So while Treasury is unlikely to be issuing rules, its request for comment has attracted significant media attention and will push other agencies to address the space. Treasury has previously used this strategy on other issues, leveraging its role presiding over the Financial Stability Oversight Council.
This strategy, which strikes me as fairly common in the financial regulatory world, merits attention in future study of agency agenda-setting.