Blacklining Editorial Privileges

Abstract

This essay attempts to unravel the mysteries of “editorial privileges” – a process whereby Commission staff is granted permission to continue editing Commission Orders subsequent to their adoption, such that the text of the Order voted on by the Commission is not necessarily the same as that ultimately published in the Federal Register or otherwise released to the public. It considers the practice’s history, its purpose, its current practice, and, most important, its legal meaning. While mystery surrounds editorial privileges, there is little mystery as to my conclusions about them: the Commission must take immediate action to reform its use of this process – and ideally should abandon it entirely.

As currently practiced, editorial privileges conceivably open a large number of Commission Orders to judicial challenge on both procedural and substantive grounds. To the extent the practice is worth saving, a simple procedural change in how items are voted on at open meetings could save the practice: instead of voting to approve items on which staff would request editorial privileges, commissioners should vote to place those items on circulation. This would effectively preserve the practice as currently used in a procedurally-defensible way.

But “editorial privileges” are not a thing worth saving. The practice is an unwarranted deviation from standard administrative practice, and in its current form is overtly used by the current Commission and other recent Commissions to subvert basic principles of administrative law.