Tuesday, May 27, 2008

Reforming the Sunshine Act

There are many things, large and small, that should be done to reform the FCC in an institutional sense. They range, on the one hand, from major substantive changes to the Communications Act that would require the agency to rely more heavily on a competition-based standard rather than the indeterminate public interest standard, to various process-oriented reforms that the Commission could accomplish on its own.

At last week's Cable Show in New Orleans, amidst all the discussion of substantive issues like net neutrality, leased access, and whatnot, FCC Commissioner Copps again talked about the negative impact of the Sunshine Act on the Commission's decisionmaking process and the agency's sense of collegiality. He reminded the audience that he and then-FCC Chairman Michael Powell had sent then-Senate Commerce Committee Chairman Ted Stevens a letter in February 2005 urging that the Sunshine Act be amended to allow the commissioners to deliberate together outside of public meetings.

When Commissioner Copps renewed his plea at last week's Cable Show, he suggested that, rather than amending the Sunshine Act on a permanent basis and for all agencies, Congress might authorize changes in the Act on a trial basis. The notion of changing any jot or tittle of the Sunshine Act is not popular among the press, even though its failings have long been obvious to many others, including academics of all stripes who have studied the issue extensively. Commissioner Copps deserves credit for continuing to raise the issue.

In 1995, I chaired a special committee of the Administrative Conference of the United States ("ACUS") that recommended, after taking testimony from many agency witnesses and interested members of the public, that Congress authorize a pilot program which would allow agency members to meet in private provided the agency requires that such meetings be memorialized by a detailed summary of the meeting to be made public no later than five working days after the meeting. The ACUS report and a brief law review article I published introducing the report are here.

The ACUS report laid out all the familiar reasons why administrative law scholars and many close observers of agency behavior have urged that the open meeting law be modified, and I will not repeat the report here. This excerpt captures a good part of the argument:

"[A]s a practical matter, it is at least arguable that the Sunshine Act produces an effect contrary to one of Congress’s principal purposes for its enactment: creating multi-member agencies to obtain the benefit of collegial decisionmaking from persons who bring to the decisionmaking process different philosophical perspectives. experiences, and expertise. Unable to deliberate together in private, agency members resort to communicating with each other in writing, through staff, or in one-on-one meetings with other members (assuming the agency has more than three members so that even one-on-one meetings are allowable). Obviously, these indirect means of communication are not conducive to fostering collegiality in the same sense that it is fostered when all agency members are able to engage in a simultaneous collective discussion."

A principal impetus for initiating the ACUS study back in 1995 was that all five FCC commissioners signed a letter asking that the study be performed because they were concerned the Sunshine Act adversely impacted the quality of agency decisionmaking. I understand that it is difficult to get Congress to modify the Sunshine Act. But if all five FCC commissioners once again signed on to a joint letter asking Congress to authorize a trial for a limited period for only the FCC, Congress might well be receptive to such a pilot program. The trial could be limited to rulemakings and require that any closed door meetings be memorialized in a summary of the meeting to be placed in the public record.

I hope Commissioner Copps will draft such a joint letter, take this idea to his colleagues, and secure agreement from all. No one disputes the notion that the FCC ought to function in a way that fosters collegial decisionmaking, consistent with holding agency members accountable for their actions. To that end, the agency's members ought to act collectively to urge Congress to authorize a limited trial to determine if modifying the Sunshine Act will indeed promote such collegiality and improve agency decisionmaking, while still maintaining public confidence in the integrity of the Commission’s processes.