- The Washington Times - Thursday, November 2, 2006

Suppose the United States Supreme Court was divided 4-4 in every major constitutional case because the ninth justice was recused from participating. The law would soon resemble a petrified forest and undermine the reason for an odd number of justices: to avert chronic stalemates. A comparable paralyzing issue for independent agencies is highlighted by a current 2-2 deadlock at the Federal Communications Commission (FCC) over a major telecommunications merger, about which more anon.

Independent agencies with an odd number of members are a commonplace on the federal regulatory scene, for example, the Securities and Exchange Commission, the Federal Energy Regulatory Commission, the Federal Trade Commission, the Consumer Product Safety Commission, the Surface Transportation Board, and the FCC. Their charter statutes characteristically prescribe that not more than a bare majority be of the same political party. In practical effect, the prescription regularly splits independent agencies by votes of 3-2 or 2-1 along a Republican-Democrat fault line.

Congress purposely created an odd number of independent agency commissioners to avoid policy stalemates. In contrast, Congress hoped for a paralytic Federal Election Commission. It thus created a six-member agency equally divided between Republicans and Democrats. Congress got what it wished for at the FEC in spades.

Congress also understood that agency commissioners would be routinely selected from the industries or special interest groups that they would be regulating. That had been a longstanding political practice since the establishment of the Interstate Commerce Commission in 1887. But the typical background of an agency commissioner frequently raises actual or apparent conflict of interest questions that might require recusal. A uniform application of recusal rules within and among agencies was needed, in part to insure against recurrent agency stalemates that could be occasioned by idiosyncratic recusal standards. Accordingly, each federal agency features a comprehensive conflict-of-interest code typically enforced by their respective general counsels and informed by the Office of Government Ethics. But this substantively and procedurally impeccable recusal scheme has been out of joint at the FCC over the AT&T-BellSouth; merger. The precedent could create troubles for all independent agencies.

The acquisition was approved by the Department of Justice without conditions after a prolonged review. It was similarly scrutinized and endorsed by Congress and numerous state public utility commissions. Nonetheless, a final decision by the FCC is needed to permit the merger to move forward, boosting the telecommunications industry into the 21st century and unleashing consumer-friendly innovations. But one commissioner’s recusal has left the FCC with a 2-2 deadlock. Sen. John Cornyn, Texas Republican, House Telecommunications Subcommittee Chairman Fred Upton, Michigan Republican, and Rep. Pete Sessions, Texas Republican, have all voiced chagrin over the commission’s protracted inability to decide.

All of this seems mystifying. As a former FCC general counsel, associate deputy attorney general and constitutional scholar, I can avow that the law is clear. Federal law governs recusals by federal officers. State laws are preempted. No state can dictate the terms or conditions of a federal officer in executing a federal authority. Further, federal law entrusts to the general counsel of the FCC responsibility for determining recusal matters as the “designated agency ethics official.” The FCC commissioner who has recused himself in the AT&T-BellSouth; merger proceeding, Robert McDowell, agrees. During his confirmation hearing, the commissioner testified that he would follow the advice of the FCC’s general counsel on recusal matters. In reliance on that representation, senators voted in favor of confirmation. The customary and proper procedure is for the FCC to engage the general counsel to issue an opinion regarding recusals in the AT&T-BellSouth; merger or otherwise. There was never any deviation from that process when I was general counsel.

Precedent is also informative. On Sept. 18, 2000, the then FCC chairman, William E. Kennard, un-recused himself from participating in the Personal Attack and Political Editorial Rule Proceeding to break a continued deadlock on an issue of major public policy concern. A decisive factor for Chairman Kennard was the inability to assign the duty to vote as the chairman to another. Mr. McDowell’s authority to vote likewise cannot be delegated or transferred. And proceedings like the AT&T-BellSouth; merger are of equal or greater importance to the telecommunications industry as were the personal attack and political editorializing rules to the broadcasting industry.

Independent agency commissioners are saddled with a legal responsibility to participate in proceedings that involve the faithful execution of federal laws and the Constitution, especially when their votes are urgent to prevent deadlocks over major public policy issues. The only exception is when the advice of the agency’s general counsel in the interpretation of federal law advises that a commissioner’s recusal is required. Playing spectator while being paid with federal dollars and permitting frustration of the public interest in agency accountability is not an option.

Bruce Fein served as FCC general counsel and associate deputy attorney general under President Ronald Reagan. He is a constitutional lawyer and international consultant with The Lichfield Group, and a consultant with AT&T.

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