Pathways of Power: The Rise of Hill Staffers-Turned-Commissioners

63 Pages Posted: 11 Mar 2019 Last revised: 31 Mar 2019

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: February 19, 2019

Abstract

During the past forty years — when conventional wisdom holds that Congress’s influence has declined — the number of appointees to independent regulatory commissions with prior service as a lawmaker or congressional staff member has increased more than fourfold. Yet this sea change in the leadership of the regulatory state has been overlooked. This article charts the development of this expanding Congress-to-commission pipeline. We then present several potential causes of this phenomenon and discuss the implications of these developments for our understanding of administrative governance and the separation of powers.

We contend that, faced with a set of worsening pathologies in Congress, lawmakers turn to appointments to influence policymaking. At the same time, congressional atrophy and an increasingly rocky confirmation process combine to make an executive post relatively more attractive to Hill staffers and less so for other potential appointees. Taken together, these developments have led to an increased presence of former congressional staff members sitting on the daises of independent commissions.

This influx of staffers-turned-commissioners has led to profound changes in the functioning of independent commissions and their place in the separation-of-powers system. For one, as former Hill staffers — steeped in the norms and behaviors of an increasingly dysfunctional Congress — fill more seats on commissions, these bodies undergo a degree of acculturation, encouraging more overtly political behavior among commissioners. Congress’s ability to “embed” loyal former staffers on independent commissions also may enable Congress to retain some measure of ongoing control over delegated powers. Further, these staffers’ presence may insert a degree of familiarity with public opinion and legislative intent into somewhat cloistered bodies. Finally, they may provide commissions with valuable insights into the views and priorities of the branch that writes their organic statutes, sets their budgets, and oversees their activities.

We conclude with a call to political actors involved in appointments. In evaluating potential appointees, these stakeholders should be attuned not only to those individuals’ preferences and expertise, but also to their institutional allegiances and potential impact on organizational culture. Finally, our findings counsel in favor of greater White House oversight of independent agencies. If independent regulatory commissioners are political actors — grounded in the politics of their congressional principal and carriers of Congress’s culture — they should be subject to political controls.

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

JEL Classification: K2, K23, H11

Suggested Citation

Feinstein, Brian D. and Henderson, M. Todd, Pathways of Power: The Rise of Hill Staffers-Turned-Commissioners (February 19, 2019). 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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