Congress's Commissioners

69 Pages Posted: 11 Mar 2019 Last revised: 20 Feb 2020

See all articles by Brian D. Feinstein

Brian D. Feinstein

University of Pennsylvania, The Wharton School

M. Todd Henderson

University of Chicago - Law School

Date Written: 2020

Abstract

The expression “personnel is policy” has become a truism in Washington. Yet our understanding of how the political branches use appointments to project influence into the administrative state is incomplete. This Article leverages data on almost one-thousand commissioners on eleven major independent regulatory commissions to chart, for the first time, Congress’s growing practice of placing former legislative-branch personnel onto these entities. We then theorize that this phenomenon is rooted in fundamental changes in American politics in recent decades—and, in turn, that it has deeply affected administrative law and separation-of-powers dynamics.

During the past several decades, the number of commissioners with prior service as a lawmaker or congressional staffer increased almost fourfold. Paradoxically, this sea change occurred during a period in which, according to conventional wisdom, Congress’s influence over administration declined. We contend that, faced with a set of worsening pathologies in Congress, lawmakers turned to appointments to influence policymaking. At the same time, congressional atrophy and an increasingly rocky confirmation process combined to make executive posts more attractive to Hill staffers than to others.

This influx of staffers-turned-commissioners has substantially altered the functioning of these commissions and their place in the separation-of-powers system. Congress’s ability to “embed” loyal former staffers on commissions can benefit both institutions. From their new positions, former staffers can both enhance congressional influence over administration and provide commissions with valuable insights into the views and priorities of the branch that writes their statutes, sets their budgets, and oversees their activities.

Staffers-turned-commissioners also bring with them political savvy, familiarity with the legislative process, and other skills developed on Capitol Hill. Further, as former staffers—steeped in the norms of an increasingly dysfunctional Congress—fill more seats on commissions, these bodies may undergo a degree of acculturation, encouraging more overtly political behavior among commissioners.

Our descriptive and theoretical accounts generate two prescriptions. First, in evaluating potential appointees, presidents and senators should be attuned not only to those individuals’ preferences and expertise, but also to their institutional allegiances and potential impact on organizational culture. Second, increased congressional influence over independent commissions justifies a degree of presidential oversight. If commissioners are political actors—grounded in the politics of their congressional principal and carriers of Congress’s culture—they should be subject to controls from both political branches.

Keywords: Independent Regulatory Commissions, Appointments, Executive Appointments, Congress

JEL Classification: K2, K23, H11

Suggested Citation

Feinstein, Brian D. and Henderson, M. Todd, Congress's Commissioners (2020). Yale Journal on Regulation, Forthcoming; University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 875; U of Chicago, Public Law Working Paper No. 703. Available at SSRN: https://ssrn.com/abstract=3338092 or http://dx.doi.org/10.2139/ssrn.3338092

Brian D. Feinstein (Contact Author)

University of Pennsylvania, The Wharton School ( email )

3730 Walnut Street
Suite 600
Philadelphia, PA 19104-6365
United States

M. Todd Henderson

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-834-4168 (Phone)
773-702-0730 (Fax)

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