The President is held responsible for the wise and efficient management of the Executive Branch of the Government. The people look to him for leadership. And yet we whittle away the effective control essential to that leadership by parcelling out a dozen or more irresponsible agencies important powers or policy and administration.220 More specifically, in that view, independence potentially impairs the aggressiveness and effectiveness of the President's regulatory program, and obstructs coordination of national policy on those matters.221 Over the years others have echoed the same sentiments. President Truman's budget bureau, after a study of the operations of the commissions, concluded that independence was a major source of weakness and ineffectiveness.222 In the 1950s Marver Bernstein viewed efficient coordination of policy in an independent setting as improbable: In an age which throws upon the President an unmanageable burden of political leadership and administrative management, the survival of islands of administrative independence, however qualified, only serves to increase the difficulties of integration.223 On the eve of the Kennedy Administration, James Landis in less stringent terms raised the same questions of accountability and coordination in his report to the President-elect.224 And as recently as 1970, the Ash Council reported to President Nixon that multi-member commissions precluded effective regulatory action: The overseeing of economic regulation by responsible public officials, necessary to assure effective discharge of agency responsibilities, cannot exist if the decisionmakers are immune from public concerns as expressed through their elected representatives. . . commissioners [have] a degree of independence that may serve to protect them from improper influence but was not intended to allow them to become unresponsive.225 What is needed, according to a leading member of the bar, is "continuous political monitoring of all government regulation to ensure its responsiveness to the changing economic and social needs that the political process reflects." 226 Independence of course precludes that monitoring by the Executive Branch. Independence, it has also been argued, weakens the agencies, by removing them from the benefits of Presidential support and making them more vulnerable to domination by the regulated industries. Marver Bernstein viewed the private sector as the major beneficiary of the independent form: 220 President's Committee on Administrative Management, op cit. at fn. 35. p. 346. Robert E. Cushman. The Problem of the Independent Regulatory Commissions, con. tained in ibid., pp. 364–65. In Marver H. Bernstein, Regulating Business by Independent Commission, p. 144 (1935). Ibid., p. 147. James M. Landis, Report on the Regulatory Agencies to the President-Elect, contained in Separation of Powers and the Independent Agencies, op cit at fn. 35, pp. 13361341, 1380-1389. Ash Council Report, op cit at fn. 25. p. 40. 228 Lloyd N. Cutler and David R. Johnson, "Regulation and the Political Process," S4 Yale L.J. 1395, 1397 (June 1975). Maintenance of the myth of commission independence represents a conscious effort by regulated groups to confine regulatory authority to an agency that is somewhat more susceptible than an executive department to influence, persuasion, and, eventually, capture and control.227 Originally independence from partisan control was considered to be a guarantee of strong regulatory policy; has the reverse occurred? In a 1950 study the Budget Bureau concluded that it had: The absence of public support for regulatory policies places a premium on the ability of the commissions to live with the industries and trades subject to regulations. These factors help to explain the tendency of the commissions to become timid in defending the public interest and developing regulatory programs.228 According to opponents of independence, there are other negative impacts of isolation from the President: the more these agencies are removed from the budget process, the less Administration support. they receive on this important matter. The result may be commissions that are budgetarily weak; which again works to the advantage of those private interests that have no enthusiasm for vigorous regulatory activities.229 In short the theory goes that independence from the President means that the agencies' lack a champion-a void that, at no small cost, is filled by the regulated industries. But shouldn't that be the responsibility of Congress, which after all created these agencies and vested them with quasi-judicial and quasi-legislative powers? And aren't the agencies guided by statutory terms that outline their regulatory mission? Opponents of the independent form have considered and rejected those propositions. A 1937 study concluded, "Congress, by its very nature, is incapable either of doing administrative work or of holding accountable in any effective way the many officers or agencies engaged in administration." 230 The Ash Council also thought the answer did not lie with Congress: Congressional statements of policy are understandably general, leaving to commissions the task of making specific policy to implement those [statutory] objectives. One result is that the commissions, in the course of time, have developed policies affecting the economy without sufficient guidance or check by Congress.231 Thus, since the President is by law prohibited from coordinating these bodies and Congress is by nature incapable of supplying the guidance they need, the independent commissions are as a result held accountable to no one. To again quote President Roosevelt's study group, these agencies therefore function not very effectively as "miniature independent governments", a "headless 'fourth branch' of the government.” 232 27 Bernstein, op cit., p. 146, 157. 228 Quoted in ibid., p. 144. 229 See Roger Noll, Reforming Regulation: An Evaluation of Ash Council Proposals, pp. 6-7 (1972). 230 Cushman, op cit at fn. 221, p. 362. 231 Ash Council Report, op cit., p. 15. 232 President's Committee on Administrative Management, op. cit., pp. 345-346. ง Those who favor abandonment of the independent form conclude there is but one answer. And that is, greater integration of these agencies into the executive branch. In no other way, it is thought, will there be clear lines of accountability and effective coordination of national policies on regulation. 2. Appraisal of the Arguments Against Independence The foregoing arguments against the independent form are, at first blush, considerable. But does a far too close association with the regulated industries, or a lack of systematic Congressional oversight, necessarily suggest abandonment of the independent form? We think not. The private sector carefully monitors the work of these commissions, very simply because it has so much at stake. Would not the same resources and energy be expended, regardless of where these agencies were located? And what is there-in fact, not supposition-to suggest that executive departments or agencies are any less independent from the sustained efforts of those interests? We wonder whether, in that regard, there are any significant differences between an independent commission and a Presidential regulatory agency, such as OSHA or NHTSA. Every regulatory body, wherever it is located, will be subject to pressure from the regulated industries. To be sure, changing the status of the commissions will not address the problems of Congressional oversight. Indeed opponents of independence bypass that issue altogether, dismissing it in favor of closer executive branch oversight. In our opinion the answers to both problems lie outside the question of independence: we have proposed a series of recommendations to improve Congressional oversight and increase the agencies' responsiveness to the public interest.233 We are convinced that the remedies will be more likely found in that direct approach to those problems. Congress can be faulted for its lack of interest in these quasi-legislative agencies. But the executive branch has also failed to effectively utilize the powers it has to properly influence these commissions. That fact is most apparent in the power of appointment, often considered to be the major executive opportunity to affect the course of regulatory policy. Have Presidents used this power wisely to place able appointees with vigorous regulatory objectives on these bodies? We answered that question in volume I of this study: Generally speaking, Presidents have not displayed much continued interest in the [regulatory] appointments process: often the process has been set up with little or no thought, and then relegated to middle-level status in the White House; criteria, either on a specific selection or even of a general nature, are rarely enunciated; and Presidents have frequently not insisted upon the most able appointees.234 That disinterest, which has marked so many regulatory appointments for such a long time,235 surely constitutes one of the major disabilities of the independent commission. In other regards, the degree of interest displayed by Presidents in the regulatory agencies does not appear to be high. In the scheme of 23 See Committee Study, vol. II and vol. III. 24 Commitee Study, vol. I, p. 145. See ibid., pp. 6-11. things, it is understandable that the President and his top advisors have more pressing concerns to occupy their time. As Judge Friendly has pointed out: 236 The spectacle of a chief executive, burdened to the limit of endurance with decisions on which the very existence of mankind may depend, personally taking on the added task of determining to what extent newspapers should be allowed to own television stations or whether railroads should be allowed to reduce rates only to or somewhat below the truck level, is pure mirage.2 In point of fact, Presidential concern over such matters, when it exists at all, is delegated to often middle-level White House assistants. And the relatively hum-drum issues that mark day-to-day regulation rarely capture the attention of top advisors to the President. In addition to the press of other business, it is also probably true that there is very little political gain for Presidents from properly-functioning regulatory agencies. In short Presidential interest, as former SEC Chairman William L. Cary has observed, is mostly likely to be focused on the commissions when there is trouble, when something goes wrong: "In general. . . it can be said that the White House is interested and involved in a regulatory agency only if there has been a scandal or wide newspaper publicity about the industry it regulates." 237 Therefore it is something short of accurate to characterize independence as a barrier to a continuing Presidential interest in the commissions. Much of what there is has not been competently used by either legislative or executive branch to coordinate the independent agencies. There is truth in Professor Cary's assertion that the independent commissions are really "stepchildren whose custody is contested by both the Congress and the Executive, but without very much affection from either one." 238 The dispute over structure, over where these agencies fit in the federal scheme, is really a diversion from a much more difficult issue: again to cite Cary, the real problem is the development of coherent national policies on regulation itself.239 In that quandary, neither legislative nor executive branches have shown much sustained interest. At present the greatest degree of systematic attention the agencies receive from Congress and the President occurs in the budget process. The budget is the single oversight mechanism the agencies can expect on a regular basis from either Congress or the White House. The Office of Management and Budget does deliberately and carefully review agency funding requests, and the same is true of the appropriation committees of Congress.240 We do not propose to dilute that responsibility in any sense; rather our interest is simply in assuring that the Congress has access to the initial estimates prepared by the commissions. OMB and Congressional review is expected to remain as searching as it is at present. In addition there is nothing, to our knowledge, which prevents the President from taking a greater interest either in the independent commission or broad regulatory policy. President Kennedy, in his 236 Henry J. Friendly. The Federal Administrative Agencies: The Need for Better Definition of Standards, D. 154 (1962). Cary, op cit. fn. 86, p. 8. 238 Ibid., p. 4. 20 Ibid., p. 136. 240 See Committee Study, vol. II. pp. 18-43. regulatory message to Congress in 1961, asserted an affirmative duty to oversee the proper functioning of federal agencies, whether independent or otherwise: *** the President's responsibilities require him to know and evaluate how efficiently these agencies dispatch their business, including any lack of prompt decision of the thousands of cases they are called upon to decide, any failure to evolve policy in areas where they have been charged by the Congress to do so, or any other difficulties that militate against the performance of their statutory duties.241 In a more coherent fashion than in the past, Congress could also display greater interest. Since such efforts have not been systematically made in the past, who can say that the commissions would turn a deaf ear? What are the problems, in specific terms, that justify abandonment of the independent commission? Much of the response to that question has come in sweeping generalizations. Assertions regarding the extent of conflict between the commissions and the executive branch are often phrased in vague terms. Indeed the study which formed the basis of the Brownlow Committee report in 1937 conceded that the problem was something short of critical: The President and the commissions have had their disagreements, but they are not chronically at loggerheads, and the commission can probably be counted upon to cooperate with the President most of the time. The important fact is, however, that they do not need to cooperate unless they wish, and the President cannot therefore, depend on that cooperation.242 In other words, potentially the commissions could be obstinate and obstructive. Of course the independent commissions will have disagreements with the White House and Congress; is that not true of the Department of Agriculture, or the Environmental Protection Agency? But it is upon that kind of slender reed that Congress is asked to reverse its long-standing inclination toward the independent form. On the grounds that the case had not been proved, the Administrative Conference in 1971 resisted the recommendation of the Ash Council that the independent form be abandoned. According to the Council, whatever deficiencies may exist "cannot be attributed solely or primarily to faulty structure", and the view that greater Executive integration "would solve regulatory problems is simplistic, unsupported by empirical data, and overlooks other plausible explanations of regulatory ills. . " 243 In point of fact the argument against independence, as a Hoover Commission task force observed in 1949, frequently is "based mainly on theoretical or doctrinal grounds and not on actual failures of coordination or conflicts among agencies." 244 Coordination is not of course a commandment, and instead is required only when it is justified. Coordination is necessary only to the extent that there are direct 241 "Regulatory Agencies- Message from the President of the United States", Congressional Record, April 13, 1961, p. 5357. 242 Cushman, op. cit. at fn. 221. p. 363. 243 2 Recommendations and Reports of the Administrative Conference of the United States, p. 28 (1971). 244 Hoover Commission, Task Force Report on the Independent Commission, p. 26 (1949). |