Independent Commissions:
Their History, Utilization and Effectiveness
by
Steve Schwalbe
Auburn University
Independent commissions give private citizens an opportunity to assist
government with significant problems without being beholden to the government
or the current administration.1
Dr. David Linowes, four-time chairman of recent federal commissions
Even before the end of the Cold War in 1991, the United States had begun to draw down
its military forces. However, the infrastructure supporting the reduced military was not cut back
correspondingly. Between 1977 and 1988, no military bases were closed, primarily due to the
restrictions placed on the Department of Defense (DoD) by Congress. Because of the economic
impact and political sensitivities of closing a military base at the local level, members of
Congress were understandably upset with DoD decisions to close bases without prior
consultation. One remedy available to resolve problems between branches of government like
this is to establish an independent commission. In this case, Congress authorized four base
realignment and closure (BRAC) commissions between 1988 and 1995, resulting in the closing
of over 130 bases.2
So, what are independent commissions? My intent in this paper is to discuss the various
aspects of federal independent commissions, from their origins in the late 1880s to what they
have become, including how successful they have been and may be in the future. University of
Wisconsin Professor Thomas Wolanin discovered, as I did, that there really is not much research
and writing, as would be expected, on this very important subject. “Despite their common
occurrence and the great public interest shown in many of their reports, there is only a very
scanty popular and social science literature discussing independent presidential advisory
commissions as political institutions.”3 When Dr. Samuel Patterson conducted a peer review of
one of my sources for this paper this year, he confirmed this position stating, “Congressional
1
David Linowes, Creating Public Policy: The Chairman’s Memoirs of Four Presidential Commissions (Westport:
Praeger, 1998), p. 1.
2
David Sorenson, Shutting Down the Cold War (NYC: St. Martin’s Press, 1998), p. 232.
3
Wolanin, Presidential Advisory Commissions, p. 5.
scholars will, needless to say, welcome this introduction to a neglected topic.”4 Despite the
paucity of publication, I found over a half dozen comprehensive books and close to a dozen
current publications on independent commissions.
DEFINITION
Independent commissions prepare public reports at least annually for both branches of
government. As such, Congress claims that commissions are independent agencies not under
either the executive or legislative branches. However, although the U.S. Constitution does not
discuss commissions or their establishment anywhere, they are approved by Congress; hence, are
not independent of the U.S. Government.5 According to Dr. Colton Campbell, independent
commissions are “formal groups established by statute or decree for the general purpose of
obtaining advice, developing common sense recommendations on complex policy issues, and
finding broadly acceptable solutions to contentious problems.” Normally these issues deal with
major social crises, policy issues, and studies of a complex, technical nature.6
HISTORY
With the advent of the railroad in the U.S. in the late 1800s, numerous states established
commissions to effectively supervise them. State legislators felt that commissions could more
easily accumulate the expert knowledge needed to regulate the railroads than they could.
However, when the Supreme Court in 1886 struck down an Illinois statute on railroad commerce
involving neighboring states, Congress was obligated to become involved. It adopted the state
approach and established the Interstate Commerce Commission (ICC) in 1887. Congress did not
4
Samuel Patterson, Book Review of Colton Campbell’s Discharging Congress: Government by Commission, in
Perspectives on Political Science, Vol. 31, Issue 4, (Fall 2000), pg. 3.
5
United States Congress. Our American Government. (Washington D.C.: US Government Printing Office, 2000),
pp. 52-53.
6
Colton Campbell, “Creating an Angel: Congressional Delegation to Ad Hoc Commissions,” Congress & the
Presidency, Vol. 25, No. 2, (Autumn 1998), pp. 161-62.
2
authorize the ICC to fix railroad rates, but it did authorize it to issue orders regarding the rates set
by the railroads and to enforce its orders in court. Since no one challenged the authority of the
ICC, Congress established many more {independent} regulatory commissions in the early 1900s,
to include the Federal Trade Commission, the Federal Power Commission, the Federal
Communications Commission, and the Securities and Exchange Commission.7
TYPES
There are primarily three types of commissions, based on the nature of their creation and
function: presidential, congressional, and regulatory.
Presidential
The most common type today is the presidential commission, created at the request of the
President. University of Illinois Professor David Linowes stated that nine out of every ten
commissions are presidential.8 Wolanin claimed that President Theodore Roosevelt was the
“father” of presidential commissions as he was the first to employ groups of non-governmental
experts to examine problems of public policy. He defined presidential independent commissions
(also known as advisory commissions) as a corporate group of members, appointed by the
President on an ad hoc basis, to advise the President in a public report. They are created by a
congressional act with at least one member from the private sector. He stated that between 1945
and 1968 only about three presidential commissions a year on average were appointed.9
Wolanin also found that the active nature of presidents directly correlated with how often
commissions were created. The more “active” presidents (i.e., active regarding new policies)
7
Fisher, Louis. The Politics of Shared Power. College Station: Texas A&M University
Press, 1998), pp. 146-147.
8
Linowes, Creating Public Policy, p. 8.
9
Wolanin, Presidential Advisory Commissions, pp. 5, 7, 31.
3
had a tendency to establish independent commissions more readily than inactive ones.10
Linowes noted from his experience that commissions appointed by the President carry more
prestige than any other type. Congress normally grants commissions the power to subpoena
witnesses to testify at public hearings, which is where the majority of the data collection is
done.11
Congressional
All independent commissions are authorized by congressional legislation, but not all are
considered congressional commissions. Congressional commissions are established by Congress
to make policy recommendations. Their composition is similar to any other independent
commission. Campbell conducted over 50 interviews with congressional offices that had
recommended establishing independent commissions in the mid-1990s, and discovered that
expertise to comprehend complex and technical policy problems was the most common
explanation for independent commission formation. The second most cited reason was to pare
down Congress’s workload. Resource, time, and expertise limitations caused members of
Congress to delegate its authority to an independent commission. Campbell concluded that,
“Congress cannot possibly legislate in all governmental situations.”12 Hence, congressional
commissions serve as a form of subcontracting for particular and immediate needs. The bottom
line is they provide inexpensive labor and quality information in a short time span.
Regulatory
As mentioned earlier, regulatory commissions were the first created, and, generally, have
the longest tenures. The vast majority of the commissions until the latter half of the twentieth
century were regulatory. As these commissions wielded substantial power beyond reporting
10
Ibid., p. 142.
Linowes, Creating Public Policy, p. 10.
12
Campbell, “Creating an Angel,” p. 7.
11
4
recommendations, they were susceptible to financial and political corruption. University of
North Carolina Professor Wilson Doyle wrote in 1939 that regulatory commissions can be
granted judicial, administrative and even policy-making powers by Congress.13
University of Kentucky Professor William Berry researched the validity of “capture
theory” regarding regulatory commissions in the early 1980s. The theory posits that once a
commission is created, the public is satisfied that its interests are being taken care of by
professional experts; hence, the public tends to lose interest in the issue. The media are also
similarly affected, as other issues without resolution surface that are more newsworthy. In
contrast, the “regulated” groups maintain a strong interest because their interests are at stake.
The constant interaction between the regulatory commission and the regulated groups, without
interference from the public or media, naturally causes the commission to become co-opted or
“captured” by the groups, possibly even corrupted. Berry discovered that several studies found
regulatory commissions were not being captured; i.e., not dominated by the industries they
regulated.14 He concluded that, “intervention in the regulatory process by representatives of
consumers and the public exists and does not affect the nature of regulated outcomes.”15
Congressional research specialist Dr. Louis Fisher noted that regulatory commissions are
subject to the control of Congress, the President, and the courts. To counter regulated industry
attempts to co-opt commissioners, or their being unduly influenced by the President,
commissioner “independence” is secured by staggering their terms relative to the President,
13
Wilson Doyle, Independent Commissions in the Federal Government (Chapel Hill: University of North Carolina
Press, 1939), p. 4.
14
William Berry, “An Alternative to the Capture Theory of Regulation,” American Journal of Political Science,
Vol. 28, Issue 3, (August1984), p. 525.
15
Ibid., p. 553.
5
limiting the power of the President to remove any of the members, and balancing the number of
commissioners representing political parties or interest groups.16
FIFTH BRANCH
Many analysts characterize commissions as an unofficial, separate branch of government,
much like the news media. Campbell referred to commissions as the “fifth arm of government,”
after the media, the often-referred-to fourth arm.17 However, the media and independent
commissions have as many similarities as differences. They are similar in that neither is
mentioned in the Constitution. Both conduct oversight functions. Both serve to educate and
inform the public. Both allow elites to participate in shaping government policy.
On the other hand, the media and independent commissions are dissimilar in many ways.
Where the news media responds to market forces, and hence will likely operate in perpetuity,
independent commissions respond to a federal requirement to resolve a difficult problem.
Therefore, they exist for a relatively short period of time, expiring once a final report is
published and disseminated. Where the media’s primary functions are reporting and analyzing
the news, a commission’s primary responsibilities can range from developing a recommended
solution to a difficult problem to regulating an entire department of the executive branch. The
media receives its funding primarily from advertisers, where commissions receive their funding
from Congress, the President, or from private sources. The news media deal with issues foreign
and domestic, while independent commissions generally focus on domestic issues.
PURPOSE
Commissions serve numerous purposes in the U.S. Government. Campbell cited three
primary reasons for the establishment of federal independent commissions. First, they are
16
17
Fisher, The Politics of Shared Power, p. 153.
Campbell, “Creating an Angel,” p. 1.
6
established to provide expertise the Congress does not have among its own elected officials or
their staffs. Next, he noted that the second most frequently cited reason by members of Congress
for establishing a commission was to reduce the workload in Congress. Finally, they are formed
to provide a convenient scapegoat to deflect the wrath of the electorate; i.e., “blame
avoidance.”18 Fisher found three advantages of regulatory commissions. First, commission
members bring essential expert insights to a commission because the regulated industries are
normally “complex and highly technical.” Second, appointing commissioners for extended
terms of full-time work allows commissioners to become very familiar with the technical aspects
of an industry, through periodic contacts that Congress would not be able to accomplish. As a
result of their tenure, varied membership, and shared responsibility, commissioners would be
resistant to external pressures. Finally, regulatory commissions provide policy continuity
essential to the stability of a regulated industry.19
What the taxpayers are primarily looking for from independent commissions are nonpartisan solutions to current problems. A good example of establishing a commission to find
non-partisan solutions is Congress regulating its own ethical behavior. University of Florida
Professor Beth Rosenson researched this issue and concluded that authorizing an ethics
commission may be “based on the fear of electoral retaliation if legislators do not take aggressive
action to regulate their own ethics.”20
Campbell noted that commissions perform several other functions besides providing
recommendations to the President and Congress. The most common reason provided by analysts
is that members of Congress generally want to avoid making difficult decisions that may
18
Campbell, “Creating an Angel,” p. 2.
Fisher, The Politics of Shared Power, p. 150.
20
Beth Rosenson, “Against Their Apparent Self-Interest: The Authorization of Independent State Legislative Ethics
Commissions,” State Politics and PolicyQuarterly, Vol. 3, No.1, (Spring 2003), pp.45.
19
7
adversely affect their chances for reelection. As he noted, “Incentives to avoid blame lead
members of Congress to adopt a distinctive set of political strategies, such as ‘passing the buck’
or ‘deflection’….”21 Another technique legislators use to avoid incurring the wrath of the voters
is to schedule any controversial independent commissions for after the next election. Establishing a commission to research the issue and come up with recommendations after a preset period
of time is an effective way to do that. The most clear-cut example demonstrating this technique
is the timing of the BRAC commissions in the 1990s — all three made their base closure
recommendations in non-election years (1991, 1993, and 1995). Even the next BRAC
commission, established by the National Defense Authorization Act for Fiscal Year 2002, is not
required to submit its base closure recommendations until 2005.
Congress certainly is not the most efficient organization in the U.S.; hence, there are
times when an independent commission is the more efficient and effective way to go. Lawmakers are almost always short on time and information, which makes the option of delegating
authority to a commission very appealing. Oftentimes, the expertise and necessary information
is very costly for Congress to acquire. Commissions are generally the most inexpensive way for
Congress to solve complex problems. From 1993-1997, Campbell found that 92 congressional
offices introduced legislation that included proposals to establish ad hoc commissions.22
There are numerous other reasons for establishing independent commissions. They are
created as a symbolic response to a crisis or to satisfy the electorate at home. They have served
as trial balloons to test the political waters, or to make political gains with the voters. They can
21
22
Campbell, “Creating an Angel,” pp. 3-4.
Ibid., p. 5.
8
be created to gain public or political consensus. Often, when Congress has exhausted all its other
options, a commission serves as an option of last resort.23
Commissions are a relatively impartial way to help resolve problems between the
executive and legislative branches of government, especially during periods of congressional
gridlock. Wolanin also noted that commissions are “particularly useful for problems and in
circumstances marked by federal executive branch incapacity.” Federal bureaucracies suffer
from many of the same shortcomings attributed to Congress when considering commissions.
They often lack the expertise, information, and time to conduct the research and make
recommendations to resolve internal problems. They can be afflicted by groupthink, not being
able to think outside the box, or by not being able to see the big picture. Commissions offer a
non-partisan, neutral option to address bureaucratic policy problems.24 Defense Secretary
Donald Rumsfeld has decided to implement the recommendations of the congressionallychartered Commission on Space, which he chaired prior to being appointed Secretary of
Defense!25
One of the more important functions of independent commissions is educating and
persuading. Due to the high visibility of most appointed commissioners, a policy issue will
automatically tend to gain public attention. According to Wolanin, the prestige and visibility of
commissions give them the capability to focus attention on a problem, and to see that thinking
about it permeates more rapidly. A recent example of a high-visibility commission chair
appointment was Henry Kissinger, selected to chair the commission to look into the perceived
intelligence failure regarding the September 11, 2001 terrorist attack on the U.S. .26 Wolanin
23
Campbell, “Creating an Angel,” pp. 6-7.
Wolanin, Presidential Advisory Commissions, pp. 44-45.
25
David Rapp, “Task-Forcing the Issues,” CQ Weekly, Vol. 59, Issue 19, (12 May 2001), p.2.
26
Dr. Kissinger resigned his appointment before the intelligence commission ever met.
24
9
cited four educational impacts of commissions: 1) educating the general public; 2) educating
government officials; 3) serving as intellectual milestones; and, 4) educating the commission
members themselves. Regarding education of the general public, he stated that, “Commissions
have helped to place broad new issues on the national agenda, to elevate them to a level of
legitimate and pressing matters about which government should take affirmative action.”
Regarding educating government officials, he noted that, “The educational impact of
commissions within government…make it safer for congressmen and federal executives to
openly discuss or advocate a proposal that has been sanctioned by such an ‘august group’.”
Commission reports have often been so influential that they serve as milestones in affected
fields. Such reports have become source material for analysts, commentators, and even students,
particularly when commission reports are widely published and disseminated. Finally, by
serving on a commission, members also learn much about the issue, and about the process of
analyzing a problem and coming up with viable recommendations. Commissioners also learn
from one another.27
CHARACTERISTICS
Membership
All independent commissions share a number of common characteristics from
membership appointment to budgeting to reporting. The most important characteristic for any
commission is its membership. Arguably, the most important member of any commission is the
chairman. Traditionally, this person has been selected by the organization creating the
commission, formally nominated by the President, and then approved by the Senate. This
process satisfies the check-and-balance requirement regarding independent commissions. The
remaining members can either be selected by the chairman and approved by the President and
27
Wolanin, “Creating an Angel,” pp. 146, 148, 149-51.
10
Congress, or politically mandated in the commission legislation. The President has been given
the authority over time to nominate all the members of presidential advisory commissions, and
has often done so to his advantage.28 The number of members varies by the type of commission.
Normally, presidential and congressional commissions have fewer than ten members. However,
regulatory commissions may have many more than ten due to the complexity and scope of the
industry being overseen. Having fewer members allows commissions to focus their energies
more effectively, enhances prospects for group identity and esprit de corps, and improves
internal communication.29
To determine whether or not Presidents exerted undue pressure on regulatory
commissions, University of New Orleans Professor Jeffrey Cohen conducted a study of the
presidential nominees to the Interstate Commerce Commission from 1955 through 1974. He
alleged that the frequent turnover among regulatory commissioners offered the President ample
opportunity to influence membership in his favor. Cohen discovered, on the contrary, that the
White House often pays little attention to regulatory commission appointments; that
commissions became the “dumping grounds” for political supporters unable to get elected.
Presidents, normally, do not want to expend “silver bullets” on getting commissioners approved
by Congress; hence, they want their nominations to “sail through” the confirmation process.
And, those wanting to become commissioners usually view commissions as spring boards to
more lucrative jobs in the industry being regulated.30 Of course, this does not normally apply to
independent commissions because they are established to resolve functional instead of
organizational issues. Cohen’s research led him to the conclusion that, “presidential influence is
not a given on all independent commissions. Because of the haphazard nature of the
28
Fisher, The Politics of Shared Power, p. 155.
Wolanin, Presidential Advisory Commissions, p. 32.
30
Cohen, “Presidential Control,” P. 69.
29
11
appointment process, the lack of presidential attention, and the initiative of prospective
nominees, the linkage between the President and the commissions may be indirect at best….”31
Term Limits
Where the term limits for presidential or congressional independent commissions are
relatively short (normally less than two years), the term limits on regulatory commissions tend to
be much longer to provide continuity and stability to the oversight, as well as maintain
independence from outside influence. Regarding independent commissions, Wolanin noted:
The average commission lasts 11.6 months. Roughly half this time is available
for data gathering and research; the rest is occupied by initial organization and
staff recruitment, analysis of the research and data by the staff and the
commission members, decision-making on findings and recommendations, and
writing the report. Six months for the average commission is hardly enough
time….32
President Reagan asked Linowes to chair a commission to study federal coal leasing that was to
have a life of only six months, including recruiting commissioners and hiring staff.33 Linowes
noted that for one of the four commissions he chaired, the commission held 34 days of hearings,
interviewing 350 witnesses representing 249 companies and federal agencies.34 Given
Wolanin’s previous observation, this arbitrary time limitation raises questions about whether so
few commissioners could deal with such complex issues effectively in such a short time span.
The term limitation for independent commissions is normally defined in the enacting
legislation. Non-regulatory commissions terminate with the submission of their final report.
According to Wolanin, the time limit is not rigidly enforced, but, “it does represent White House
expectations and is a strongly felt constraint on commission members and staff.” He also noted
31
Ibid.
Wolanin, Presidential Advisory Commissions, p. 100.
33
Linowes, Creating Public Policy, p. 99.
34
Ibid., p. 48. The commission issue was privacy in America.
32
12
that the temporary nature of commissions means that they are free of historical baggage and are
not required to accomplish the routine actions of permanent organizations.35
Commission Staff
Staffs are often the key to a successful commission. Normally, the full-time professional
staff members of commissions are lawyers and mid-level substantive experts on loan from the
federal government (though staffers have been recruited from universities, industry, and think
tanks). To lend credibility and legitimacy to a commission, staff members will generally be
recruited who are senior experts with well-known reputations inside and outside their fields of
expertise. Staff members are deliberately selected from various sources and with equal
opportunity guidelines in mind to prevent any accusations of bias towards any organization,
group, or position.36
People find out about commission staff openings through word of mouth, requests sent to
federal agencies, or advertisements in publications such as the Federal Register.37 Those
candidates with previous commission experience or with ties to important constituencies the
commission needs to deal with are usually selected as staff members. The process of recruiting
staff relies a great deal on personal relationships and previous working experiences of the
commissioners with prospective staff members. Wolanin, however, does not feel most staff
members’ training and professional experience facilitate research, analysis, and report
recommendations under severe time limitations. Sometimes social scientists are engaged by
commissions as consultants or as staff, but are usually not available due to short notices or not
motivated to assist a federal commission because the payoff is much lower (unlike for lawyers
and government experts). In fact, recruiting the best and brightest people as staff members is a
35
Wolanin, Presidential Advisory Commissions, p. 32.
Wolanin, Presidential Advisory Commissions, p. 108.
37
Linowes, Creating Public Policy, pp. 68-69.
36
13
major problem for most commissions because of the short notice, the reluctance of any
organization to give up its best workers even for a short period, and scheduling conflicts.38
Fisher pointed out that senior staffers from Congress are good candidates to become
commissioners or staffers since they oftentimes are instrumental in creating the commissions in
the first place, and, hence, have the desired background knowledge.39
Funding
The funding of commissions is primarily a function of what kind of commission it is.
The President can draw from two sources of funding for presidential independent commissions:
the Presidential Emergency Fund (since 1942) and the Special Projects Fund (since 1955). Both
of these funds are authorized by Congress. According to Wolanin:
For over a hundred years the President and the Congress have waged an
occasionally hot guerrilla war on the appropriations frontier over the ability of the
President to fund ad hoc advisory bodies. In the final analysis, the President has
come out on top because of the inability of Congress to match the inventiveness
of the White House in evading Congressional restrictions, and because of the
inability or unwillingness of the Congress to cut too deeply into the flexibility…of
executive power….40
Commissions, by tradition, have been established using three kinds of instruments: congressional
statutes, executive orders, and presidential announcements. The instrument used to establish a
commission usually determines its funding source. Commissions created by executive order are
often funded from one of the two aforementioned presidential funds. Those commissions created
by official announcement (the most common method) are more likely to be funded through
agency or voluntary contributions from non-governmental sources. There are no restrictions or
obligations if a private source, such as a foundation, funds an independent commission. The
most common form of private support to commissions comes from interest groups doing
38
Wolanin, Presidential Advisory Commissions, pp. 101, 110.
Fisher, The Politics of Shared Power, p. 157.
40
Wolanin, p. 62.
39
14
research without compensation. Finally, in the case of commissions created by statute, which are
infrequent, Congress normally provides the funding as part of the legislation establishing the
commission. Although the President can spend money from his two accounts as he pleases,
Congress clearly retains the power to either cut the amounts available, attach further restrictions,
or eliminate the funds altogether. According to the Independent Offices Appropriations Act of
1946, if a government organization funds a commission, it is then entitled to have at least one
member on the commission. Congress has passed laws allowing executive agencies, including
the White House, to hire temporary experts and consultants and pay their expenses.41
Each of the two branches has budgetary oversight authority over the other regarding
commissions. The Budget and Accounting Act of 1921, along with its modification by the
Reorganization Act of 1939, provides for the executive branch, specifically the Bureau of the
Budget (now OMB), to review and revise budget estimates submitted by all departments,
including their independent commissions.42 Congress passed the Federal Advisory Committee
Act in 1972 in an attempt to control the use of presidential independent commissions by issuing
guidelines to the executive branch covering the creation, administration, tasking of, and
responses to commissions. According to Wolanin, “Attempts to control the use of advisory
bodies through requiring congressional authorization for their creation or funding have yielded to
more indirect, and perhaps more effective, accountability through full and systematic disclosure
about them.” The bottom line is that while Congress has been unwilling to limit the President’s
authority to create or fund advisory commissions, it does have the ability to cut off the two
41
42
Wolanin, Presidential Advisory Commissions, pp. 63-69.
Fisher, The Politics of Shared Power, p. 162.
15
unrestricted presidential funds and to modify the other legislation through which commissions
have been funded.43
Legality
Since independent commissions are not specifically authorized by the Constitution, their
continued establishment stems primarily from tradition. Congress began the tradition, following
the states with regulatory commissions in the late 1800s and early 1900s. Presidents began
employing commissions shortly after Congress did. Wolanin explained that the technical
authority of the President and Congress to use independent commissions stems from the right of
the legislative and executive branches to inform themselves for legislative and execution
purposes through various kinds of investigation.44 Yale University Professor Douglas Arnold
cited two Supreme Court decisions, in 1947 and in 1954, regarding the legality of regulatory
commissions to regulate natural gas sales. In both cases, the court determined that regulatory
commissions were indeed authorized to regulate on behalf of Congress.45
CHALLENGES
Credibility
The two most important characteristics of any commission are its credibility and
independence. If a commission does not have credibility for whatever reason, then its
recommendations will be ignored (hence, being a waste of time and resources). There are
numerous ways for a commission to lose its credibility, starting with its members and staff. If
the commissioners or staff are perceived to be biased towards one political party, or close to the
President, or connected to an issue through private dealings, then the commission’s credibility
may be lost. Sorenson observed that commissioners must have no stake in the issues dealt with,
43
Wolanin, Presidential Advisory Commissions, p. 71.
Wolanin, Presidential Advisory Commissions, pp. 64-65.
45
Douglas Arnold, The Logic of Congressional Action (New Haven: Yale University Press, 1990), p. 246.
44
16
and that if commissions, overall, are perceived as politically nonaligned, their chances of success
are higher.46 As a chairman of several commissions, Linowes knew the importance of a
commission's credibility and told the others members about it right up front. “Even if the
commission’s recommendations were made in good faith, without the perceived credibility
bolstered by independence and thoroughness, no one would give our findings the kind of
attention essential for action.”47 The way to gain credibility is to have commissioners who are
experts regarding the issue, are well known and respected in their fields, and are perceived as
non-partisan, independent thinkers.
Independence
One essential key to achieving credibility is to maintain independence from the branches
of government. To do this, commissioners are technically appointed by the President and
approved by the Senate to prevent the President from stacking a commission in favor of his
preferred outcome. Wolanin noted that the most important presidential authority to exert control
over commissions is the appointment of their members. Candidate members are screened by the
White House to attempt to produce a group likely to favor the direction of presidential policy.48
Linowes, on the other hand, noted that he was often given the authorization by the President to
select commission members he could work with as chairman, and to submit them to the White
House for approval.49 Cohen conducted a study of presidential influence on the ICC over a 20year period. He found that even though a President’s appointees vote together with high
frequency, they also tend to vote with appointees of other Presidents at a similar rate. He found
no party blocs or stable bloc patterns over the years on the ICC. He concluded his research
46
Sorenson, Shutting Down the Cold War, p. 37.
Linowes, Creating Public Policy, p. 138.
48
Wolanin, Presidential Advisory Commissions, p. 75.
49
Linowes, Creating Public Policy, pp. 68-69, 99, 134.
47
17
stating, “Analysis indicates that voting patterns on the ICC do not relate to presidential
appointment.”50 Finally, in the early days of commissions, the President successfully removed
commissioners that were not abiding by his wishes, which adversely affected commission
independence. In the early 1930s, the Supreme Court ruled that the President could no longer
remove a commissioner without cause (e.g., dereliction of duty).51
Final Report
Once an independent commission has concluded its hearings and data analysis, the
members negotiate the recommendations before writing the final report. Once the report is
written, it is disseminated. Linowes submitted his commission reports directly to the President
and Congress, and even though the commissions were terminated, he still followed-up with
congressional testimony and media appearances to discuss the report recommendations. He
noted that it did not matter who the President was or who was in his cabinet, his four commission
reports were always well received and garnered the personal support of the President. His key to
success in this regard was to make recommendations that were easily implemented, incremental,
defendable, and realistic.52 Another key to a successful report is to achieve commission
unanimity in the findings and recommendations. Wolanin noted that a commission reaches
consensus either by natural coalescence, bargaining, or reciprocity, so that, “the overwhelming
majority of commission recommendations are the expression of a unanimous consensus among
commission members.”53 All the recommendations in all four of Linowes’s commission reports
were agreed upon unanimously. Commissioners pursue this unanimity to ensure maximum
impact of the report, and to increase the probability that the recommendations would actually be
50
Cohen, “Presidential Control,” pp. 65-66.
Doyle, Independent Commissions, pp. 28-29.
52
Linowes, Creating Public Policy, pp. 48-49, 190.
53
Wolanin, Presidential Advisory Commissions, p. 119.
51
18
implemented as policy. However, one must remember that an independent commission’s
recommendations are not binding; the recommendations can be ignored, except in the case of
regulatory commissions where the recommendations can be enforced in federal court.
Congress
Congressional oversight of regulatory commissions has been variable at best. Neither
chamber seems to have the time, energy, or resources to deal with commission oversight. North
Carolina State Professor Andrew Taylor hypothesized that the Senate should be more interested
in controlling commissions than the House because: 1) they can afford to do so because of their
longer terms of office; 2) the Constitution provides the Senate with the formal responsibility for
oversight; and, 3) they should be more willing than House members because of their larger
constituencies, and, consequently, broader responsibilities.54 He conducted his research on the
Federal Trade Commission (FTC) between 1975 and 1998, and found that, “for the most part,
little quantitative or qualitative difference in House and Senate oversight of the [FTC].”55 His
rationale for the House being as involved in FTC oversight as the Senate is based on: 1) the
House trying to compensate for its institutional disadvantages, such as a considerable
information deficiency; 2) the size of the House allowing some of its members to specialize more
than Senators, and, 3) the polarization between branches and the growing partisanship within
Congress itself making the House majority less willing to defer FTC oversight to the Senate.56
Despite congressional effort to oversee the work of the regulatory commissions, Congress
and commissions may have both been misled at times over the years. Boise State University
Professor Charlotte Twight wrote an article claiming the FBI and the Federal Communications
54
Taylor, Andrew J., “Congress as Principal: Exploring Bicameral Differences in Agent Oversight,” Congress & the
Presidency, Vol. 28, No. 2, (Autumn 2001), p.142.
55
Ibid., p. 153.
56
Ibid., p. 154.
19
Commission (FCC) misled Congress regarding invasion of personal privacy through mandatory
telecommunication carrier reporting. She alleged that the FBI defended before Congress in 1994
the Communications Assistance for Law Enforcement Act (CALEA), requiring telecommunication carriers, including traditional and electronic telephone and wire carriers, to install and
maintain equipment that would enable law enforcement officials to receive information about a
private individual’s communications. She documented the fact that Congress employed some
unorthodox legislative procedures when it suspended the rules in order to pass CALEA.
Moreover, Congress did not question any of the committee members, and neither chamber
recorded the names of the members present or how they voted. She even claimed that FBI
Director Louis Freeh, “repeatedly misled Congress about the FBI’s interpretation of CALEA and
the intentions regarding its use.”57
The FCC’s role in this issue was as final arbiter over the implementation of CALEA.
The FBI testified before the FCC with its “true” intentions regarding CALEA, and the FCC still
decided in its favor on most of the contested issues in August 1999. Twight was very disappointed that the FCC was “rolled” by the FBI because it had the expertise Congress was
lacking to make the “right” call regarding telecommunication personal privacy issues. Of
course, civil rights groups challenged the FCC’s ruling in favor of the FBI’s interpretation of
CALEA, and the U.S. Court of Appeals (D.C.) in August 2000 held that the FCC was correct in
deeming cell phone location to be “call-identifying information,” which was not an invasion of
privacy, and in fact even praised the FCC.58 This may be a case where Congress and the FCC
made the right call, even though many civil rights groups disagree.
57
58
Twight, Charlotte, “Conning Congress,” Independent Review, Vol. 6, Issue 2, (Fall 2001), p. 5, 10.
Ibid., p. 14.
20
CASE STUDY
To demonstrate the complexities of independent commissions in the 21st century, I
selected the Base Realignment and Closure (BRAC) congressional independent commission as a
case study. Closing military bases is a highly political issue that has caused the Department of
Defense (DoD) considerable anguish in sustaining a bloated infrastructure that stifles its ability
to acquire new weapon systems. This case study clearly shows how difficult it is to keep
political influences out of an independent commission’s decision-making process — which is
one of the primary motivations for establishing an independent commission in the first place.
Base Realignment and Closure (BRAC) Commissions
In the Quadrennial Defense Review published by DoD in May 1997, Secretary of
Defense William Cohen called for more BRAC independent commissions. “Since the first base
closure round, force structure has come down by 33%. ... During the same period, we will have
reduced domestic infrastructure by 21%. ... We must shed more weight.”59 DoD estimated that
the almost 100 base closures would produce a net savings of about $14 billion by the end of
FY2001, and an estimated savings thereafter of about $5.7 billion each year.60 Congress has
been reluctant to authorize BRAC commissions primarily because of the lost income generated
by military bases for states and districts and the grass-roots electoral opposition from
communities likely to be economically damaged.61
However, Air War College Professor Dave Sorenson found counter-intuitive results when
researching congressmen, representing electorates where bases were closed, who were not
reelected during the election following the base closure. “The 1991-1995 base-closure years
59
Lockwood, David E. “Military Base Closures: Time for Another Round?,” CRS Report: RL30051, (March 7,
2001), p. 2.
60
Lockwood, “Military Base Closures,” p. 1.
61
Lockwood, “Military Base Closures,” p. 1.
21
reflected…no evidence that base closure was responsible for even a single congressional or
senatorial defeat in the election years following each round.”62
Congress asked the General Accounting Office (GAO) to look into DoD’s cost savings
estimates regarding these base closures, believing them to be exaggerated. On 5 April 2002, the
GAO sent its findings to the House of Representatives, stating that, “On the basis of our analysis
of defense budget documentation for fiscal year 2002, the Department of Defense has accrued an
estimated $16.7 billion in savings through fiscal year 2001, an increase over prior estimates. The
Department also expects to gain an estimated $6.6 billion in annual recurring savings thereafter.”
Studies by other federal agencies, to include the Congressional Budget Office and the DoD
Inspector General, have also shown that “BRAC savings are real and substantial.” However,
these cost savings do not account for federal government expenditure of $1.5 billion to assist
communities affected by the closure process, or $3.5 billion in environmental clean-up costs on
the military bases. The GAO visited many of the communities directly affected by major
military base closures and found that all of them were recovering very well, “although not
without difficulty and challenges.”63
To de-politicize the military base closure process, Congress established the BRAC
commission in 1988 as a “special commission” for the Secretary of Defense to report
simultaneously to both the House and Senate Armed Services Committees. The Secretary of
Defense was also authorized to select the commissioners and the selection criteria. The 1988
BRAC Commission conducted its hearings and deliberations in secrecy, and in fact never even
bothered to visit all the bases it selected for closure. The result was an infuriated Congress,
which submitted revised BRAC legislation in 1990. The Base Closure and Realignment Act of
62
Sorenson, Shutting Down the Cold War, p. 213.
United States General Accounting Office. Military Base Closures, Report to the Honorable Vic Snyder, House of
Representatives, GAO-02-433 (Washington, D.C.: Government Printing Office, April 2002), pp. 2, 4, 8.
63
22
1990 established three BRAC commissions, each required to send their recommendations
directly to the President (not the Secretary of Defense), who, upon approval of the list of
recommended realignments and closures, forwarded the list to Congress for its up-or-down
approval. The President (again, not the Secretary of Defense) was given the authority to select
the commissioners with the advice and consent of the Senate. However, the Secretary of
Defense still had the authority to set the selection criteria. The three BRAC commissions of the
1990s reached a high level of institutionalization due to overlapping membership, a common
methodology, and a corporate memory of lessons learned.64
Unfortunately, according to many analysts, the BRAC independent commissions were
anything but non-partisan. Sorenson noted that members of Congress tried to influence BRAC
commissioners and staff to accept their base preferences with few changes, to influence the
selection of BRAC members, and to sway the outcome. During Congressional hearings on
BRAC 1991, Colorado Democratic Representative Patricia Schroeder noted that, “of the 21
major bases slated to be closed, 19 were in districts represented by Democrats, and that 99
percent of the civilian job losses from those closures were in Democratic districts.” Both
Congress and the President interfered with the BRAC process in the 1990s. New Jersey
legislators managed to prevent key bases from being closed in their state by changing the
selection criteria at the last minute to prevent any challenges. President Clinton politicized the
process by delaying the closure of Air Force logistics centers in California and Texas until after
the presidential elections in 1996.65
The 1990 legislation attempted to institutionalize the process by tying the selection
criteria to military requirements. As such, the 1990 legislation required the Secretary of Defense
64
65
Sorenson, Shutting Down the Cold War, p. 36.
Sorenson, Shutting Down the Cold War, pp. 39, 46.
23
to specify the criteria reflecting “military value” with reference to force structure and threat
estimates. Of course, the Secretary of Defense delegated the responsibility to each of the
services to set their own criteria and then conduct the evaluation of their bases. The service
Secretaries, however, felt that each service should be reduced at similar rates over the three
BRACs. The Air Force had the most bases (with 405), followed by the Navy (with 253), and
then the Army (with 210). Although the Air Force lost the fewest bases overall, it lost the most
bases in 1991 (14), while the Navy lost the most in 1993 (17), followed by the Army in 1995
(10) — as prearranged by the service Secretaries. Hence, Sorenson’s bottom line, that political
and service biases significantly influenced the BRAC commissions, is supported by the evidence.
Despite that, 97 major military bases were still closed between 1988 and 1995, which is still
better than none during the period from 1977 to 1988.66
Commissions are not a panacea for achieving innovation in federal policy. …
Neither are commissions a sham; they have made important independent
contributions in substantive proposals, facilitated consensus building, and helped
to persuade other political actors to agree with their proposals.67
Dr. Thomas Wolanin, University of Wisconsin
PERFORMANCE RECORD
Overall, I believe the track record of independent and regulatory commissions since the
late 1880s has been good. If they had not met the general expectations of the President or
Congress over the years, then neither branch of government would continue to spend valuable
resources establishing them. However, that does not mean that all the commissions established
were successful. Wolanin analyzed 99 commissions between 1945-1974 and discovered:
[A]bout two-thirds of the commissions have received at least some substantial
implementation for their recommendations, about seven in ten some strong public
66
67
Ibid., pp. 35, 48, 49, 206, 208.
Thomas Wolanin, Presidential Advisory Commissions. (Madison: University of Wisconsin Press, 1975), p. 142.
24
support from the President, and about eight in ten some kind of favorable
response from the President. Commission reports are not routinely ignored or
buried by Presidents. Their recommendations are very often a substantial element
in proposed or actually accomplished changes in federal policy.68
That does not mean that partisan politics have not undermined the best intentions of
independent commissions. As discussed earlier, Sorenson found significant partisan politics
regarding the BRAC independent commissions, and yet, they managed to accomplish the goal of
closing close to 100 military bases, thereby saving DoD several billions of dollars. On the other
hand, partisan politics has managed to cause commission recommendations to not get implemented, resulting in perceived commission failure. For example, any time an issue involves
Congress itself, like ethics, term limits, or salaries, the preferred method for Congress is to
establish an independent commission, then have dissatisfied members discredit the recommendations for individual political gain. Regarding congressional pay raises, the Constitution
only indicated that members of Congress should receive compensation for their services. Hence,
Congress periodically voted itself a pay raise. However, this was always a painful process,
considering the constituents back home did not earn half of what members of Congress wanted
to pay themselves with taxpayers’ money. In 1967, Congress established a mechanism utilizing
independent commissions to determine what its federal salaries should be at fair market value
every four years. The “quadrennial” commission recommendations would go to the President for
his approval before being sent back to Congress for final approval. Since Congress was still
reluctant to vote directly on its own pay raise, it established a “legislative veto” within the
legislation.69 If no Congressman objected to the President’s recommendations (which was
usually the independent commission’s recommendations), then, after a short period of time (in
68
69
Wolanin, Presidential Advisory Commissions, p. 139.
Part of the 1967 Federal Salaries Act.
25
this case, 30 days), they would automatically become law — without a direct vote by either
chamber of Congress.
Unfortunately, two things happened to kill this unique mechanism to periodically raise
congressional salaries. First, in 1977, Congress passed the Bartlett amendment that required a
roll-call vote on the President’s salary recommendation. This set Congress back to where it was
before 1967 when members could not escape directly voting for their own pay raises.70 Second,
in 1983, the Supreme Court, in its Chadha v. United States ruling, declared that legislative vetoes
were unconstitutional. The quadrennial commission subsequently became moribund. Finally,
the best examples of where commissions can go astray are found among regulatory commissions.
Harvard Graduate School Professor Tom McGraw in 1975 published a study on regulatory
commissions in which he uncovered numerous inefficiencies costing the American taxpayers
billions of dollars. Regarding the ICC, he found that, “Its policies of minimum rate regulation,
its reluctance to allow market forces to select optimal modes for particular freights, its custodial
preservation of obsolete services, were ill serving the industries concerned and making a
mockery of the ‘public interest’.”71 By the 1970s, the cost of the ICC’s inefficiencies in surface
freight transport was estimated to be between four and ten billion dollars every year. McGraw
found a similar situation with the regulatory commissions overseeing the airline industry and
even the natural gas industry. “By the 1970s, the policies had injured the entire [U.S.] economy,
as the [natural gas] energy problem became acute and one important fuel source lay poorly
developed because of regulatory constraint.”72 He concluded that regulatory commissions often
came into existence with broad popular support, but, once established, readily responded to
70
Hartman, Robert W. and Weber, Arnold R. The Rewards of Public Service (Washington DC: The Brookings
Institution, 1980), pp. 87-88.
71
McCraw, Thomas K., “Regulation in America,” Business History Review, Vol. 49, Issue 2, (Summer 1975),
p.172.
72
Ibid., pp. 172-73.
26
pressure from organized interest groups. He also concluded that regulatory commissions, like
any other organization, promoted policies that would ensure their institutional survival and
growth. “[C]ommissions’ highest loyalties sometimes went neither to the ‘public interest’ nor to
the regulated industry, but to regulation itself. Regulation was their business, and they did not
intend to close up shop.”73
CONCLUSION
The bottom line is that the advantages of independent commissions clearly outweigh the
disadvantages. They offer Congress the opportunity to regulate industries that span across
multiple states, avoid the revenge of aggrieved voters, and solve complex problems efficiently
and cost-effectively. For the President, they also provide sound solutions to resolve disputes
between the executive and legislative branches of government, or insightful recommendations to
technical problems. For the public, they provide perceived non-partisan recommendations to
difficult problems or crises. In any case, there are no viable alternatives available for either the
executive or legislative branch to utilize when a complex problem or regulatory requirement
arises. Independent and regulatory commissions will likely continue to be an integral part of the
legislative and policy-making process in the United States Government, whether or not they are
successful most of the time.
73
Ibid., pp. 180-82.
27
SELECTED BIBLIOGRAPHY
Books
Arnold, R. Douglas. The Logic of Congressional Action. New Haven: Yale University
Press, 1990.
Doyle, Wilson K. Independent Commissions in the Federal Government. Chapel Hill:
University of North Carolina Press, 1939.
Fisher, Louis. The Politics of Shared Power. College Station: Texas A&M University
Press, 1998.
Hartman, Robert W. and Weber, Arnold R. The Rewards of Public Service. Washington
DC: The Brookings Institution, 1980.
Linowes, David F. Creating Public Policy: The Chairman’s Memoirs of Four
Presidential Commissions. Westport: Praeger, 1998.
Sorenson, David S. Shutting Down the Cold War. NYC: St Martin’s Press, 1998.
Wolanin, Thomas R. Presidential Advisory Commissions. Madison: University of
Wisconsin Press, 1975.
Government Publications
United States Congress. Our American Government. Washington D.C.: US Government
Printing Office, 2000.
United States General Accounting Office. Military Base Closures, Report to the
Honorable Vic Snyder, House of Representatives, GAO-02-433. Washington D.C.:
Government Printing Office, April 2002.
Lockwood, David E. “Military Base Closures: Time for Another Round?,” CRS Report :
RL30051, (March 7, 2001).
Journals
Berry, William D., “An Alternative to the Capture Theory of Regulation,” American
Journal of Political Science, Vol. 28, Issue 3, (August1984), pp. 524-58.
Campbell, Colton, “Creating an Angel: Congressional Delegation to Ad Hoc
Commissions,” Congress & the Presidency, Vol. 25, No. 2, (Autumn 1998), pp. 161-82
28
Cohen, Jeffrey E., “Presidential Control of Independent Regulatory Commissions
Through Appointment,” Administration & Society, Vol. 17, No. 1, (May 1985), pp. 6169.
Hellwig, Timothy T., “Interdependence, Government Constraints, and Economic
Voting,” The Journal of Politics, Vol.63, No. 4, (November 2001), pp.1141-1162.
McCraw, Thomas K., “Regulation in America,” Business History Review, Vol. 49, Issue
2, (Summer 1975), p.159, 25 pgs.
Patterson, Samuel C., Book Review of Colton Campbell’s Discharging Congress:
Government by Commission, Perspectives on Political Science, Vol. 31, Issue 4, (Fall
2002), pg. 4.
Rapp, David, “Task-Forcing the Issues,” CQ Weekly, Vol. 59, Issue 19, (12 May 2001).
Rosenson, Beth A., “Against Their Apparent Self-Interest: The Authorization of
Independent State Legislative Ethics Commissions,” State Politics and Policy
Quarterly, Vol. 3, No.1, (Spring 2003), pp.42-65.
Taylor, Andrew J., “Congress as Principal: Exploring Bicameral Differences in Agent
Oversight,” Congress & the Presidency, Vol. 28, No. 2, (Autumn 2001), pp.141-59.
Twight, Charlotte, “Conning Congress,” Independent Review, Vol. 6, Issue 2, (Fall
2001).
29