On the environment, the opportunity to throw some real institutionalist punches and ram climate legislation through the Senate passed us by in June, when the House passed the bill and the health care debate hadn’t taken over everyone’s attention spans. Being individualists, the Obama-ites failed to think about the institutional structure of the Senate and the fact that it doesn’t take on more than one big bill at a time, as well as about the institutions of other governments who would not, despite their general admiration for Obama, be duped into taking a handshake from him in December instead of real policy commitments to reduce emissions.

That said, there are occasional fleeting moments where it seems that Obama has grown savvy to these problems with his radical individualism. That’s why, as I reported in Fortune today, he’s using the institutions he still has power over (the executive agencies) to regulate individual industries in lieu of getting a comprehensive bill. In some ways, discretionary regulation beats Congressional oversight–career bureaucrats tend to be less beholden to lobbyists. On the other hand, discretionary regulation tends to be less economically efficient in the policies it produces, because industries are considered piecemeal and without proper attention to the way they interact in the macroeconomy. Furthermore, discretionary regulation is, well, discretionary, and doesn’t have any value once power changes hands. Congressional policies, on the other hand, are very hard to undo once they’re in place. Still, is this better than nothing? Hell, yeah.

“The issue here,” says Cleland, “is whether, if the consumer knew of the relationship between the advertisers and the blogger, would it affect the credibility of the blogger’s statements?” If so, the new guidelines would permit the FTC to demand that the blogger disclose the connection, with failure to comply resulting in fines as high as $11,000.

…

The problem, critics contend, is the lack of clarity in the FTC Guides on what will constitute a violation. Beyond direct payments from companies to reviewers in exchange for specific coverage, the guidelines seem to extend to consumer and personal websites where advertising content and editorial content overlap.

One thing that came up in my reporting that I didn’t get a chance to address in the piece is the question of whether blogs are a publishing medium where conflicts of interest are a form of commercial corruption, or just equivalent to individual speech, in which case the government can’t regulate them at all. In this case, the FTC is treating blogs as a publishing medium, at the expense of the many individuals who use the platform simply to carry on personal conversations.

Meanwhile, the FCC seems to be approaching the internet as a form of speech and therefore pushing net neutrality on the grounds that all speech must be treated equal. That approach takes away all the specific protections that commercial content is premised upon (like intellectual property rights), even as that publishing is about to move online.

Meanwhile, Congress, which oversees both agencies, is trying to draw a line in the middle of the blogosphere between those who use blogs as a publishing form–and get special rights but also stricter rules as a result–and those who are just speaking. The Congressional shield bill may be doomed now that it’s lost White House support, but I think in principle, some way of distinguishing commercial from non-commercial content online is going to be necessary.

What frustrates me most, however, is how easy it is for the two agencies to put into law two conflicting definitions of the same space–the net–without anyone raising questions about the inherent contradictions between their approaches. It’s a clear case where some regulatory consolidation is needed.