Independent Agencies and the Unitary Executive Debate: An Empirical Critique

Abstract:     
The unitary executive theory - that the Constitution gives the President complete control over the executive branch - questions the constitutionality of independent agencies. The debate surrounding this theory involves competing policy arguments. Unitarians tend to see independent agencies as partisan tools of congressional aggrandizement which sap executive energy and diminish democratic accountability. Non-unitarians see independence as enabling professionalized bureaucratic decision-making or furthering deliberative democratic goals.

We test these claims using the results from a unique, comprehensive database of Federal Communications Commission (FCC) voting. We find neither lock-step partisanship or vise-like Chair (or proxy presidential) control. Decision making at the FCC occurs largely by consensus with unanimous orders constituting over 91% of the 8252 in our database. When predicting the likelihood to dissent, however, commissioner's individual tendency to dissent (as measured by examining conditional probabilities derived from logistic regressions) has a greater effect than party affiliation. We interpret this finding as showing that commissioners pursue individual agendas, not the President's or Congress's as an institution. The unitarians, therefore, underestimate the extent to which independent agencies frustrate democratic accountability.

Most significant, micro-institutional features determine agency outcomes and mediate any congressional or executive influence. In particular, the way commissioners are chosen and the organizational structures in which they operate strongly affect partisanship, i.e., party-line voting. The FCC produced more partisan outcomes when, in the late 1990s, the commissioner nomination and confirmation process became more partisan. When the FCC changed in 1982 from a seven to five-commissioner body, there was a decrease in commissioners' tendency to dissent

Keywords: Empirical Legal Studies, Administrative Law, Federal Communications Commission, Unitary Executive

Working Paper Series