Independence, the president and the FCC

Independent regulatory agencies are strange creatures. They are part of the government, yet not immediately accountable to elected officials. Whenever an independent agency makes an unpopular decision, opponents complain about “unelected officials” making important public policy decisions, just as they do when courts reach decisions they don’t like.

But one reason Congress and other legislatures around the world create independent agencies is to insulate their decision-making processes from short-term political pressures.

The recent dust-up between President Obama and Federal Communications Commission (FCC) Chairman Tom Wheeler demonstrates, however, that being called an independent agency does not necessarily make it so. Recently, even as the president acknowledged the FCC’s independence, he stated that “the FCC should reclassify consumer broadband service under Title II of the Telecommunications Act.”

{mosads}The president’s statement puts the chairman in an awkward position. He not only faces additional pressure to reach a particular policy outcome, which may or may not be the commission’s preferred outcome, but also may feel he has to demonstrate that the FCC is truly independent.

This interaction highlights a problem inherent to independent agencies.

On the one hand, independence is especially important when confronting issues that have become politicized and tempers run hot — precisely the times it is difficult for politicians to sit on the sidelines.

On the other hand, especially when making controversial decisions, we don’t necessarily want agencies to be completely removed from society’s preferences, expressed through our elected officials, or to be unaccountable for decisions. That’s why Congress has oversight authority over the FCC and affected parties can challenge FCC decisions in court.

It isn’t obvious that independent agencies necessarily make better decisions or are more effective than agencies that are part of the executive branch. For example, the Federal Trade Commission (FTC), which is an independent agency, and the Department of Justice (DOJ), which is part of the executive branch, both have antitrust enforcement authority. But few would argue that the FTC is inherently better than the DOJ because of its independence, or vice-versa.

Still, while no one believes the FCC is completely apolitical, it is an independent agency.

If the president and Congress feel the agency no longer adequately reflects their preferences, they should change its status to make it more politically accountable. In the meantime, the president should respect the commission’s independence and be happy that Chairman Wheeler agreed to put his comments into the public record, even though the comment period has expired.

Wallsten is vice president for research and senior fellow at the Technology Policy Institute.