Everything but the Agency

Philip J. Weiser, Institutional Design, FCC Reform, and the Hidden Side of the Administrative State, 61 Admin. L. Rev. 675 (2009), available at BePress and SSRN.

Every so often, an article captures a persistent problem in a particular field.  Phil Weiser has done just that.  “In studying the modern administrative state,” Weiser writes, “legal scholars have failed to do their part in examining the questions related to institutional competence and institutional structure that determine whether administrative regulation can be effective.” Weiser, supra, at 676. He focuses on the institutional failings at the Federal Communication Commission (FCC).  The situation at the FCC is serious, leading Larry Lessig to recommend that Congress abolish the agency. See id. at 677 (citing Lawrence Lessig, Rebooting the FCC, Newsweek.com, Dec. 23, 2008).

Weiser describes the main failing of the FCC as a tendency “toward ad hoc judgments and away from any principled framework for evaluating alternative courses of action.” See id. at 681. The agency has neither articulated general standards for key issues such as spectrum allocation nor engaged in proactive, strategic planning.  To make matters worse, the agency also lacks a capacity for independent research and analysis and relies “’almost exclusively upon information and analysis supplied by’ the parties that appear before it.” See id. at 681-82 (quoting Nicholas Johnson, Towers of Babel: The Chaos in Radio Spectrum Utilization and Allocation, 34 Law & Contemp. Probs. 505, 530 (1969)). As a result, the FCC is easily captured—not so much in the sense that the regulated interests populate its ranks or drive its decisions but in the sense that it is beholden to its own institutional limitations.  In Weiser’s words, the agency suffers from “a failure to approach issues strategically, to develop independent solutions, and anticipate issues ahead of particular crises.” See id. at 684. Weiser’s solution is not to abolish the agency but to repair its institutional processes.  He has a number of concrete suggestions, among them encouraging strategic agenda setting, better use of notice-and-comment rulemaking, upgraded data collection and dissemination, and increased public participation in decisionmaking. 

Weiser’s larger point is that legal scholars have too little focused on how the structure of agencies affects their decisionmaking.  He might have added that legal scholars rarely study the structure of independent agencies at all beyond noting, often in footnotes, how independent agencies fall outside well-defined theories of judicial review or presidential control.  Political scientists, however, have long been interested in the structure of independent agencies, at least when explaining why Congress creates them.  And the Supreme Court will have the chance this Term to consider the constitutionality of one unique independent agency, the Public Company Accounting Oversight Board.  Free Enter. Fund v. Public Co. Accounting Oversight Bd., 537 F.3d 667 (D.C. Cir. 2008), cert. granted, 129 S. Ct. 2378 (2009). No doubt a wave of legal scholarship will follow; it has already begun to build in anticipation of the decision.  But I wonder whether the decision or the ensuing debate will really consider how the structure of the PCAOB affects its decisionmaking.  Or will the legal treatment focus, as it typically has, only on how the structure of the PCAOB affects presidential control of that decisionmaking? 

Yet the two are related.  Without knowing how the structure works more generally to affect the decisionmaking of the PCAOB or any other agency—without a baseline—the constitutional decision is something of a sideshow for those interested in questions of how well an agency works to accomplish its statutory goals.  The Court held that the independent counsel was constitutional, See Morrison v. Olson, 487 U.S. 654, 685-93 (1988), but the institutional design of that office was its ultimate political downfall (suggesting, for some, that the Court was wrong in holding that the independent was constitutional).  Don’t get me wrong.  The Court should consider the constitutionality of agency design, just as legal scholars should consider the validity of judicial review.  But more of us should accept Weiser’s general invitation, offered by others previously, to consider the practical operation of agency decisionmaking.  This is not a topic of interest only to political scientists.  Without such an examination, legal scholars might reasonably ask along with Lessig why agencies, particularly ones with structures as complicated as the FCC, should continue to exist at all.  The bottom line is that agencies ought to work effectively in the areas that they regulate.  Such workability is a basic premise of their legitimacy—and might well influence the rules of judicial review and the theories of political accountability that have been the subject of legal scholarship. 

Studying agency processes is difficult because the window into those processes is often less open to view than judicial opinions or even presidential practices.  Weiser’s title reflects that reality.  By referring to “the hidden side of the administrative state,” he means that phrase to signify the set of institutional questions that administrative law scholars have largely overlooked.  But the study is not impossible.  Weiser’s article itself serves as a testament.  He documents some institutional failings largely from agency materials, public speeches, congressional hearings, and media accounts.  Based on this evidence, he diagnoses important shortcomings and offers important recommendations.  He does not claim that his analysis of the FCC is complete, but it provides much more insight than we had before.  

As to the FCC, Weiser’s article is well worth reading.  Congress has taken a recent interest in reform at the FCC, and institutional changes of the sort that Weiser supports could be in the mix.  The FCC is a socially and economically significant agency.  We should not give up on it—yet. 

As to his broader point, Weiser’s article is also well worth reading.  It is a reminder to legal scholars (perhaps a wakeup call) that we lack important information about the workings of the regulatory state.  We have looked at the institutions that review and control agencies more than the agencies themselves.  Articles like Weiser’s will help us to improve the functioning of agencies and therefore serve practical as well as normative values.  In addition, such articles will help us with our standing project of evaluating rules of judicial review and developing theories of political control.