As the Obama administration’s first term draws to a close, the Federal Communications Commission and Congress are squaring off for a predictable tussle. The topic, as usual, is “agency reform.”
Three years into a presidential term, especially under a divided government, the topic is almost always agency reform. If Act 1 of a new chairmanship begins with ritualistic pledges (often sincerely felt) to work across differences, Act 2 is composed of fierce and bruising policy disagreements (the aftereffects of which are even more deeply felt).
And now, with an upcoming election and major personnel changes looming, comes Act 3: a meta-debate over how the agency makes decisions. It is more or less the policy equivalent of a divorce proceeding — the final hashing-out of grievances before starting afresh.
Four years ago, Republicans controlled the FCC and Democrats the Congress. Act 3 began with the House Energy and Commerce Committee announcing its intention, at the end of 2007, to investigate “an apparent breakdown in an open and transparent regulatory process” at the FCC. It ended, a year later, with a final investigative report whose 12-word title efficiently sums up the major findings: “Deception and Distrust: The Federal Communications Commission under Chairman Kevin J. Martin.”
Now, the Republican-controlled committee is going one better. Earlier this month, Communications and Technology Subcommittee Chairman Greg Walden, R-Ore., along with Sen. Dean Heller, R-Nev., introduced a process-reform bill that would amend the underlying law that authorizes the FCC. It is scheduled for markup on Wednesday.
The effort is clearly rooted in substantive objections to recent FCC decisions, most notably network neutrality, the Comcast merger conditions, and a belief that the agency is in general too quick to regulate.
But, significantly, the bill avoids substantive issues and instead sets out strict procedural requirements the FCC must meet before it creates any new rules, as well as tighter standards for merger conditions.
The problem is that lack of procedure is not what is wrong with the FCC. Indeed, the agency already has far more baroque procedural requirements than any comparable private decision-making entity — or the Congress itself, for that matter (which shifts from fact-gathering to enacting actual laws at the pace it sees fit).
The basis for existing practices is the Administrative Procedure Act, to which the FCC, like almost all federal agencies, is already subject.
Layering new procedural requirements on top of existing ones would effectively halt the creation of nearly any contentious new FCC rules — in other words, achieve a result more or less like what Texas Gov. Rick Perry had in mind for the Commerce and Education departments.
This is not to deny that good procedures are critical to creating good policy. But no formal procedural rules, no matter how strictly enforced, can prevent bad decision-makers from making bad decisions.
So why are agencies and their congressional overseers so locked into discussing process rather than substance? One candid explanation comes from an exchange that Rep. John Dingell, D-Mich., had with the Republican chair of the FCC in 2007 during an especially contentious hearing. Dingell, a famous process hawk, explained:
“I always am interested in the substance, but I am very, very interested in the procedure because my old daddy taught me a little lesson way back when I was young. He said, son, if you let me write the procedure and you write the substance, I will overcome you every time.” [https://house.resource.org/110/org.c-span.202772-1.pdf]
Lurking in the background here is an acknowledgment of the uneasy, complicated relationship between expert agencies like the FCC and the Congress that oversees them.
On one hand, agencies are created because they are uniquely capable of developing expertise in complex, specialized areas like technology, science, and economic analysis — much more than the Congress that creates them and the judges who grade their homework.
Against this background, legislators of both parties must be careful about too much second-guessing on the basis of substance (though it happens). It would be a bit like a patient refusing to take medicine on the theory that it tastes bad.
On the other hand, Congress is also deeply suspicious of the agencies it has created, especially when they are staffed with political leadership of the opposite party. (Courts are, too.)
And Congress is right to be suspicious — bureaucracies can take on a life of their own, and not in a good way. The FCC is certainly no exception.
So the typical compromise is for legislators to wait until enough substantive decisions they don’t like have been made. And then they will attack the process, often proposing procedural changes that are substance by other means.
Act 3 rarely ends up in actual, binding policy changes — and this latest exercise is not likely to prove an exception.
But soon we will have a new cast of players, who will begin the oversight relationship anew. Undoubtedly, they will begin the process with high hopes of cooperation on substance. They should bear in mind that 2015 — and the potential for yet another process-focused Act 3 — is just a few short years away.
NOTE: Bruce Gottlieb is general counsel of National Journal‘s parent company, Atlantic Media. Until last summer, he was chief counsel and senior policy adviser to the current chairman of the FCC, Julius Genachowski, and before that, he was an adviser to Commissioner Michael Copps.