Regulatory Enforcement in a Politically Polarized Environment

Regulators enforce the law, according to what is allowed in the legal text, but much of the time regulations allow a wide latitude of discretion. In these instances, regulatory enforcement is often governed by shared norms of enforcement, as well as what regulators believe to be the most significant problems in business and society. These norms might revolve around typical uses, targets and processes of the law, thereby producing a fairly predictable mode of enforcement. But what effect does political polarisation have on regulatory enforcement norms? Political polarisation has the effect of weakening bipartisanship, as well as policy initiatives which are associated with bipartisanship. This has the potential to destroy norms of shared understanding of regulatory enforcement. In the U.S. states, state attorneys general (state AGs) are responsible for enforcing consumer protection laws, often known as unfair and deceptive advertising practices (UDAP) laws. While there is variation, these laws generally offer AGs (who are elected in 43 states) wide discretion to decide how to enforce consumer protection laws and other state laws. In this paper, we rely on political polarisation and regulatory enforcement literatures to theorise on what constitutes norm erosion within state enforcement and what are the potential impacts. We rely on a series of case studies to illustrate this evolution in regulatory enforcement in the U.S. This paper has the potential to help us understand the precise effects of polarisation on different elements of policymaking, as well as the impacts of that policymaking on different audiences.