The Shallow State: The Federal Communications Commission and the New Deal

University of Pennsylvania Journal of Law & Public Affairs, Vol. 4, No. 3, Pp. 403-458 (2019)

57 Pages Posted: 30 May 2019

See all articles by Daniel R. Ernst

Daniel R. Ernst

Georgetown University Law Center

Date Written: May 8, 2019

Abstract

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, 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.

Keywords: Legal history, Communications, Law and Politics, Administrative Law, Legal Profession

Suggested Citation

Ernst, Daniel R., The Shallow State: The Federal Communications Commission and the New Deal (May 8, 2019). University of Pennsylvania Journal of Law & Public Affairs, Vol. 4, No. 3, Pp. 403-458 (2019). Available at SSRN: https://ssrn.com/abstract=3385044

Daniel R. Ernst (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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