Senate Republicans Flip-Flop on the White House and Independent Agencies

Yesterday, the Republican members of the Senate Homeland Security and Government Affairs Committee (HSGAC)—the Senate committee with primary oversight jurisdiction over the regulatory system—published a report detailing their shock and dismay over a Wall Street Journal story alleging that the White House "may have inappropriately influenced" the Federal Communications Commission's (FCC) so-called "net neutrality" rule. In releasing the report, Committee Chairman Senator Ron Johnson (R-WI) could barely contain his contempt: "It is concerning that an independent agency like the FCC could be so unduly influenced by the White House, particularly on an issue that touches the lives of so many Americans and has such a significant impact on a critical sector of the United States economy."

Among other things, the Senate HSGAC report complains about what it describes as secret communications between White House staff and FCC staff about how the rule should be designed. The report further concludes that White House influence may have undermined the effective functioning of the Administrative Procedure Act's notice-and-comment procedures for soliciting meaningful public feedback on the regulatory proposal.

Those who follow the U.S. regulatory system know that White House interference in agency regulatory decision-making is a common and undesirable feature of the rulemaking process. In 2011, CPR published a report detailing the extent of such interference and the troubling policy implications it raises. The CPR report explains how White House interference in rulemaking shields from public view how critical decisions about a rule's substance were made and defeats meaningful public participation.

But, as the Senate HSGAC report points out, this practice is especially troublesome when applied to a distinct subset of regulatory agencies known as "independent regulatory agencies." In contrast to "executive branch agencies," which include the Environmental Protection Agency (EPA) and the various agencies that comprise the cabinet departments, Congress specifically designed independent agencies to be insulated from White House control. Congress employed several institutional design features meant to shield these agencies from the kind of "undue influence" decried by Senator Johnson, including limiting the president's ability to remove agency heads and providing agency leadership with staggered, defined terms in office that extended beyond the presidential election cycle. Independent agencies that benefit from these institutional designs include not only the FCC, but the Nuclear Regulatory Commission, the Security and Exchange Commission, and the Consumer Product Safety Commission.

As a group of CPR Member Scholars explained in a 2015 letter to members of the U.S. Senate, these unique design features reflect Congress's recognition that the independent agencies' "respective missions were far too important to be left vulnerable to political and corporate interference." The CPR Member Scholars go on to note:

Independent regulatory agencies oversee some of the most important and complex aspects of the U.S. economy, including guarding against banking abuses and protecting consumers against unsafe products. By designing independent regulatory agencies to be insulated from undue political pressure, Congress also sought to ensure that these agencies would be able to use their unique expertise on policy matters to develop the best solutions to the social problems that Congress meant for them to address.

For their part, presidents appear to have recognized this distinction between executive branch regulatory agencies and independent regulatory agencies by specifically exempting latter from a series of executive orders that authorize intrusive White House supervision of agency regulatory decision-making. These executive orders include Executive Order 12866 and Executive Order 13563, the orders that are the source of the White House Office of Information and Regulatory Affairs Administrators' claim to the mantle of "regulatory czar."

 The righteous indignation expressed in the Senate Republicans' HSGAC report comes with a massive side order of irony, though. For the past several years, these same Senators have endorsed and are actively working to enact a bill that would—you guessed it—institutionalize the exact same kind of White House interference in independent agency regulatory decision-making that they now find so inimical to their delicate sensibilities. The current version, S. 1607 or the Independent Agency Regulatory Analysis Act, would send a strong signal to future presidents to be less squeamish about extending White House supervision to independent agencies by explicitly authorizing them to issue an executive order that imposes a system of centralized regulatory review similar to that imposed by Executive Order 12866 and 13563. (Fun fact: The CPR Member Scholar letter referenced above was written in response to this ill-advised bill.)

In October of 2015, the Senate HSGAC approved the Independent Agencies Regulatory Analysis Act largely along party lines. The path forward for the bill remains unclear at this point, but it is rumored to have been included in a package of antiregulatory legislation that is being championed by a so-called Regulatory Reform Working Group. Fortunately, more recent rumors hold that any momentum behind the legislation has all but fizzled.

It's not clear how the committee's majority leadership squares these apparently contradictory views on the issue of White House interference with independent agencies' regulatory decision-making. The only constant is that on both occasions their stances on procedural niceties, while mutually inconsistent, also happen to align perfectly with their preferred substantive outcomes—namely, their vehement opposition to strong regulatory safeguards that might be too inconvenient to the bottom lines of their corporate benefactors. And in this latest instance, there's the political bonus of getting to rail against President Obama, even though, to be brutally candid, the President and the White House have every right to express their views on an FCC regulation, just like everybody else.

The real lesson to be learned (or re-learned) is that these Senate HSGAC Republicans' pious appeals to process concerns is often little more than convenient cover for promoting their anti-safeguard agenda.