Independent Agencies and the Unitary Executive Debate: An Empirical Critique

43 Pages Posted: 4 Mar 2008 Last revised: 31 Mar 2008

See all articles by Keith S. Brown

Keith S. Brown

CNA Corporation

Adam Candeub

Michigan State University - College of Law

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

Suggested Citation

Brown, Keith S. and Candeub, Adam, Independent Agencies and the Unitary Executive Debate: An Empirical Critique. MSU Legal Studies Research Paper No. 06-04, Available at SSRN: https://ssrn.com/abstract=1100125 or http://dx.doi.org/10.2139/ssrn.1100125

Keith S. Brown

CNA Corporation ( email )

Washington, DC
United States

Adam Candeub (Contact Author)

Michigan State University - College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

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