tive procedures, formulation of policy within and between agencies; and the relationship of the commissions to the President and Congress. Landis placed special emphasis on the inadequacy of institutional efforts to coordinate regulatory policies. The Report recites examples of the absence or breakdown of policy coordination both within agencies and between agencies in a particular regulatory field. It states: A prime criticism of the regulatory agencies is their failure to develop broad policies in the areas subject to their jurisdiction... A series of... hiatuses in various regulatory fields can be mentioned, arising out of the inability to fashion viable patterns through the process of adjudication. If there is a lack of policy formulation within agencies, there is an almost complete barenness of such formulation for those matters with which groups of agencies are concerned. The few interagency committees that have been set up have accomplished too little in conducting their separate approaches to a common problem. The inability to effect inter-agency coordination has been responsible for the lack of any policy as to the nature of the competition that should exist as between forms of transportation and also between the carriers themselves. Military transportation, as presently conducted, competes heavily with commercial transportation, and there are patent abuses that attach to the government as a mass shipper, but it still insists on going its own way regardless of the effects its policies may have upon other carriers.32 Various alternative means to improve coordination were suggested by Landis, but he concluded that the type of coordination he desired would have to be hierarchically imposed and ultimately involve the President. The Bureau of the Budget (now OMB) was specifically ruled out as coordinative unit. Consolidation of these agencies into Executive departments, as recommended by the Brownlow Committee, might "eventually be the right answer," but the problem was "too pressing to await the initation of what would be a mammoth project of consolidation in the fields of transportation, communications, and energy...." 33 The solution, according to Landis, was to develop and coordinate policy at a high staff level, in this case within the Executive Office of the President. The report was published at a time when much academic and media support could be found for increasing the size, functions, and power of the Executive Office as an institution. The Report specifically proposed, among other things, that four new Offices be established within the Executive Office of the President, as follows: (1) An Office for the Coordination and Development of Transportation Policy to develop and implement a national transportation policy. This should be accomplished by Reorganization Plan transferring to this Office all the responsibilities now vested in the Undersecretary of Commerce for Transportation. (2) An Office for the Coordination and Development of Communications Policy and simultaneously by executive order trans 22 Ibid. pp. 24. 25. 33 Ibid. p. 84. fer to this Office all powers relating to telecommunications now vested in the Office of Civil and Defense Mobilization. (3) An Office for the Coordination and Development of Energy Policy with authority to propose to the President plans for the development of energy resources of this nation. (4) An Office for the Oversight of Regulatory Agencies which will assist the President in discharging his responsibility of assuring the efficient execution of those laws that these agencies administer.34 The Landis Report, while innovative in terms of its proposals for new units within the Executive Office, was similar to earlier studies in its avoidance of the subject of regulatory policy administered by Executive Branch agencies and concentrated, instead, on the independent regulatory commissions and their alleged structural deficiences. Marver Bernstein observed: "Perhaps because of his desire or instructions to avoid any proposal requiring legislation, Landis did not relate problems of regulatory agencies to the character of the legislative mandates, and the lack of effective sanctions for securing compliance with regulations." 35 The President subsequently submitted to Congress seven proposals on reorganizing the regulatory commissions. All of the reorganization plans had the same basic aim of speeding up and streamlining agency procedures. The first four plans-those for the Securities and Exchange Commission, the Federal Communications Commission, the Civil Aeronautics Board, the Federal Trade Commission-contained three basically identical steps to accomplish this. They authorized the board or commission to delegate some of its functions to certain members or employees; they empowered the chairman to assign the delegated functions; and they made review of certain lower-level decisions discretionary. The plan for the National Labor Relations Board was the same as the first four but omitted the chairman's power of assignment; the plan for the Federal Home Loan Bank Board only restored some hiring and firing powers formerly held by the chairman; in the seventh plan, the Federal Maritime Board was abolished and its functions delegated to other agencies. Congress rejected four of the seven Reorganization plans submitted. The rejections were essentially the result. of particular Congressional committees coming to the defense of "their" commissions. The rejections were construed, however, as a rebuff to the President.36 This defeat apparently cooled whatever ardor the President might have felt for reorganizing the regulatory agencies. A common thread running through the Brownlow, Landis and Ash studies of regulatory organization discussed above is the need to impose some degree of political (i.e., Congressional and Presidential) influence on at least the policy-related activities of the regulatory bodies. It is commonly agreed that many of the tasks assigned by Congress to regulatory agencies are political in nature, involving critical 34 Ibid. pp. 85-96. 35 Bernstein, Marver, Independent Regulatory Agencies: A Perspective on Their Reform, p. 19. Seidman, Politics, Position and Power: The Dynamics of Federal Organization. Oxford University Press. 1975. p. 55. choices of selecting among conflicting interests. Agencies must often decide which economic and social goals to pursue and at what economic and social costs. These are unquestionably political decisions. At the same time, of course, agencies make decisions such as in ratemaking and in choosing between applicants for a particular license which should be insulated from political influence. But even some of these decisions are fringed with political overtones. For example, should the CAB authorize a route between cities exceeding a certain population size is a political choice; the choice of which particular route, or which carrier should operate that route, is closer to adjudication. However, instead of having a broad perspective on the political aspect of issues they decide, most agencies are concerned solely with their particular industry and with a narrower perspective. Their decisions are inevitably based on the facts and issues presented to them rather than on any concern for national goals or policy. Coordination mechanisms such as interagency committees are designed to settle jurisdictional conflicts and avoid obvious overlaps or duplication, but they are not intended to nor do they deal with the problem of relating the work of a particular agency to over-all national policy. The Brownlow Committee, Dean Landis and the Ash Council all recognized these problems and recommended various proposals to give the Executive greater influence in regulatory agency decisionmaking. In our view, none of these reports sufficiently recognized the importance of maintaining independence for regulatory decisionmaking. However, they did point to the single deficiency which continues to persist the inability of the political arms of government to influence policy-related activities of the regulatory bodies. We deal with these issues in this volume's chapter on independence and in our recommendations. One of our recommendations attempts to resolve the dilemma of maintaining independence at the same time that some measure of political initiative is provided to the Executive to institute proceedings before regulatory bodies. It is our view that the appropriate way to gain political control of regulatory agencies is certainly not to impose a provision of doubtful constitutionality such as the legislative veto. If agencies are acting in ways believed by Congress to deviate from Congressional intent then Congress should either amend the laws under which agencies operate to insure that they understand Congressional intent or Congress should narrow delegations of authority and engage in more thorough oversight. One of our recommendations is that Congress review and consolidate the disparate laws under which some agencies operate. We also recommend that in order to improve congressional oversight that Congress should draft its statutes for regulatory agencies as narrowly as possible. Since one problem encountered in certain substantive areas is the absence of clear legislative policy goals, we also recommend that statutes incorporating national goals or policy be enacted for areas such as transportation, energy and banking. Whether or not a given organizational structure for regulatory administration should be favored over all others will depend, in large part, on what political values are to be promoted. Regulation is not an end in itself. It is a means toward some other end, and the test of any regulatory structure is whether it is attaining the goals and pur poses which gave rise to its creation. When it can no longer meet this. test, the structure, and possibly even the underlying regulation is in need of change. The bulk of the Committee report which follows consists of case studies of regulatory fields where more than one agency has administrative responsibility. In some instances, we find that reorganization is needed; in others we believe that increased coordination and clarification of statutory mandates will suffice to improve performance. In Part I we discuss some of the cross-cutting issues raised in this brief introduction-independence; promotion and regulation; coordination and planning for national policy goals. Finally, we suggest some recommendations to improve regulatory organization. |