Not-so independent agencies: Party polarization and the limits of institutional design

Boston University Law Review

Volumn 88, Issue 2, 2008, Pages 459-498

  Devins, Neal ^a   Lewis, David E ^b  

^a The College of William and Mary

^b PRINCETON UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 44849109019     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (210)

1. See discussion infra Part I.
2. Most of our empirical analysis is original. Others, however, have examined related questions. In particular, Daniel Ho wrote a first-rate study on the impact of statutory partisan requirements on presidential control of independent agencies. See Daniel E. Ho, Congressional Agency Control: The Impact of Statutory Partisan Requirements on Regulation 18-31 (Am. Law & Econ. Ass'n, Working Paper No. 73, 2007), available at http://law.bepress.com/alea/17th/art73/. Ho's study helped shape our thinking and we will refer to it on several occasions in this Article.
3. See In re 2002 Biennial Regulatory Review - Review of the Commission's Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996, 18 F.C.C.R. 13,620, 13,790-91 (2003); see also Prometheus Radio Project v. FCC, 373 F.3d 372 (3d Cir. 2004) (reviewing the validity of the proposed 2003 rules).
4. Press Release, White House, President Bush Nominates Six Individuals To Serve in His Administration (April 6, 2001), available at http://www.whitehouse.gov/news/releases/2001/04/20010406-7.html. In 2005, Bush appointed Kevin Martin to be chair of the FCC. Press Release, FCC, Kevin J. Martin Sworn in as Communications Commissioner (July 3, 2001), available at http://www.fcc.gov/Bureaus/Miscellaneous/News_Releases/2001/nrmc0111. html.
5. See discussion infra Part II.
6. See discussion infra Part IV.
7. See discussion infra Part II.
8. See discussion infra Part III.
9. See discussion infra Part II. This is especially true on high-salience issues - where Democrats and Republicans are likely to disagree with each other. See discussion infra Part II. For this reason, some independent commissions are more likely to be politicized than others.
10. See discussion infra Part III.
11. See Peter L. Strauss, The Place of Agencies in Government Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 589-91 (1984).
12. See generally Nina A. Mendelson, Agency Burrowing: Entrenching Policies and Personnel Before a President Arrives, 78 N.Y.U. L. REV. 557 (2003).
13. See DAVID E. LEWIS, PRESIDENTS AND THE POLITICS OF AGENCY DESIGN 3-4 (2003).
14. STAFF OF S. COMM. ON GOV'T OPERATIONS, 95TH CONG., STUDY ON FEDERAL REGULATION: THE REGULATORY APPOINTMENTS PROCESS 31 (1977);
15. see also PETER L. STRAUSS, A DMINISTRATIVE JUSTICE IN THE UNITED STATES 95-96 (2d ed. 2002);
16. Cass R. Sunstein, Deliberative Trouble? Why Groups Go to Extremes, 110 YALE L.J. 71, 103 (2000) (opining that partisan membership requirements in independent regulatory commissions may reduce an agency's tendency toward political polarization).
17. See LEWIS, supra note 13, at 27-29. Due process concerns were particularly salient before Congress's 1946 enactment of the Administrative Procedure Act (APA), a federal statute mandating that government agencies adhere to due process norms. See infra note 19 and authorities cited therein.
18. See Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1667, 1678 (1975).
19. See LEWIS, supra note 13, at 27-29.
20. 17 Cong. Rec. 7290 (1886) (statement of Rep. Hitt) (debating the merits of opposing bills to address railway regulation).
21. See LEWIS, supra note 13, at 3-4. Another justification for the creation of independent commissions is that these commissions avoid constitutional problems. See id. at 22-23. In particular, some members of Congress argued that the granting of regulatory power comes with great risk to individuals and commercial interests. See McNollgast, The Political Origins of the Administrative Procedure Act, 15 J.L. ECON. & ORG. 180, 182-83 (1999). Designing commissions and judicializing their procedures is one way of ensuring due process rights for regulated interests. A related justification for the creation of independent agencies was lawmaker concern about the delegation of quasi-legislative power to executive branch actors. Before the 1946 enactment of the APA, 5 U.S.C. §§ 551-559 (2000), independent - but not executive agencies - made use of quasi-judicial procedures when crafting policy. The Supreme Court favorably cited this practice in its 1935 Schechter Poultry decision. See Schechter Poultry Corp. v. United States, 295 U.S. 495, 541-42 (1935). In explaining why Congress could not delegate power to the executive to determine what is and is not "fair competition," the Court distinguished this impermissibly vague delegation from Congress's granting of analogous power to the Federal Trade Commission (FTC). See id. at 552. For the Court, the FTC's determination of "unfair methods of competition" was sensible because the FTC was a "quasi-judicial body" and "[p]rovision was made for formal complaint, for notice and hearing, for appropriate findings of fact supported by adequate evidence, and for [Article III] judicial review to give assurance that the action of the commission is taken within its statutory authority." Id. at 533. With the enactment of the APA, executive agencies are now bound by due process requirements both when crafting regulatory policy and when adjudicating disputes. See 5 U.S.C. §§ 554, 556-557.
22. WILLIAM F. FOX, JR., UNDERSTANDING ADMINISTRATIVE LAW 68 (3d ed. 1997).
23. See generally DAVID EPSTEIN & SHARYN O'HALLORAN, DELEGATING POWERS: A TRANSACTION COST POLITICS APPROACH TO POLICY MAKING UNDER SEPARATE POWERS (1999);
24. MURRAY J. HORN, THE POLITICAL ECONOMY OF PUBLIC ADMINISTRATION: INSTITUTIONAL CHOICE IN THE PUBLIC SECTOR (1995); LEWIS, supra note 13;
25. Nolan McCarty, The Appointments Dilemma, 48 AM. J. POL. SCI. 413 (2004);
26. Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989);
27. Terry M. Moe, The Politics of Bureaucratic Structure, in CAN THE GOVERNMENT GOVERN? 267 (John E. Chubb & Paul E. Peterson eds., 1989).
28. See FOX, supra note 20, at 68.
29. See David Epstein & Sharyn O'Halloran, Divided Government and the Design of Administrative Procedures: A Formal Model and Empirical Test, 58 J. POL. 373, 387-92 (1996).
30. See LEWIS, supra note 13, at 27-28.
31. See id. at 49-55.
32. See id. at 49, 54.
33. See id. at 54.
34. See id.
35. See Moe, supra note 21, at 289-97.
36. See id. at 289-90.
37. Id. at 290.
38. See id. at 290-91.
39. Id. at 291.
40. Id.
41. Id. at 290-91.
42. See ROBERT E. CUSHMAN, THE INDEPENDENT REGULATORY COMMISSIONS 146-59 (1972).
43. See id. at 153-55. This was seen most clearly in their efforts to limit political influence on the Board of Governors and to increase banking influence on the board. See id. at 155-58.
44. See id. at 154-56.
45. See id. at 153-55. The term length originally was ten years but was lengthened to fourteen years in 1935. Compare Federal Reserve Act of 1913, ch. 6, § 10, 38 Stat. 251, 260, with Banking Act of 1935, ch. 614, § 203, 49 Stat. 684, 704.
46. Differences between presidential and congressional sensibilities are best illustrated by Harry Truman's conflicting positions on the delegation of authority to regulate the nation's waterways to the Interstate Commerce Commission. In 1938, then-Senator Truman strongly backed the delegation; in 1946 President Truman opposed the delegation, arguing that transportation policy was too fragmented under independent-agency control. See LEWIS, supra note 13, at 21-22.
47. Roosevelt sacked Humphrey, a Coolidge appointee to the Federal Trade Commission who supported big business and opposed the New Deal, because Roosevelt "[did] not feel that [Humphrey's] mind and [his] mind [went] along together." WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT 60 (1995). For an insightful discussion of this episode (from which many of the claims in the balance of this paragraph are drawn), see id. at 52-81.
48. Humphrey's Ex'r v. United States, 295 U.S. 602, 629 (1935). Enraged by this and other anti-New Deal rulings, Roosevelt launched his failed plan to pack the Court with Justices sympathetic to his policy agenda. On the linkage between Humphrey's Executor and court-packing, see LEUCHTENBURG, supra note 41, at 79-80.
49. See RICHARD POLENBERG, REORGANIZING ROOSEVELT'S GOVERNMENT: THE CONTROVERSY OVER EXECUTIVE REORGANIZATION, 1936-1939, at 187-88 (1966).
50. Id. at 25.
51. LOUIS FISHER, THE POLITICS OF SHARED POWER: CONGRESS AND THE EXECUTIVE 148 (4th ed. 1998).
52. The 1938 Congress, however, had no interest in backing Roosevelt's plan: "fears and anxieties produced by European dictatorship[s]" translated into congressional efforts to cabin presidential power. POLENBERG, supra note 44, at 149. Roosevelt simply could not overcome the specter of a centralized totalitarian regime. See Barry D. Karl, Constitution and Central Planning: The Third New Deal Revisited, 1988 SUP. CT. REV. 163, 188;
53. Neal Devins, Government Lawyers and the New Deal, 96 COLUM. L. REV. 237, 261-65 (1996) (book review).
54. Presidentially appointed commissions established to examine the administration of the executive branch have consistently sought to increase presidential control of the administrative state. For example, in justifying some proposals made in 1971 to decrease the number of independent agencies, the President's Advisory Council on Executive Organization (the Ash Council) concluded that political insulation limits the accountability of independent agencies to both the President and Congress. THE PRESIDENT'S ADVISORY COUNCIL ON EXECUTIVE ORGANIZATION, A NEW REGULATORY FRAMEWORK: REPORT ON SELECTED INDEPENDENT REGULATORY AGENCIES 4, 14-16 (1971).
55. For a general overview of presidentially appointed management commissions, see PERI E. ARNOLD, MAKING THE MANAGERIAL PRESIDENCY: COMPREHENSIVE REORGANIZATION PLANNING 1905-1996, at 338-64 (2d ed., rev. 1998) (explaining the recurrent phenomenon of comprehensive executive reorganization planning).
56. See discussion supra notes 20-28 and accompanying text.
57. Reorganization Plans Nos. 3 and 4 of 1970, 35 Fed. Reg. 15,623 (Dec. 2, 1970), reprinted in 84 Stat. 2086 (1970).
58. These two episodes are discussed in Neal Devins, Political Will and the Unitary Executive: What Makes an Independent Agency Independent?, 15 CARDOZO L. REV. 273, 279-80 (1993).
59. ANDREW RUDALEVIGE, MANAGING THE PRESIDENT'S PROGRAM: PRESIDENTIAL LEADERSHIP AND LEGISLATIVE POLICY FORMULATION 18 (2002);
60. Terry M. Moe, The Politicized Presidency, in THE NEW DIRECTION IN AMERICAN POLITICS 235, 235 (John E. Chubb & Paul E. Peterson eds., 1985).
61. See discussion infra Part III.
62. As Daniel Ho puts it: "[a]necdotal evidence abounds" that "presidents appoint [cross-party] commissioners differing formally in partisanship but who are otherwise identical in viewpoint to the president." Ho, supra note 2, at 2. Ho, however, concludes that those studies are in error - and that cross-party appointees are particularly loyal to the party from which they come. See infra notes 160-65 and accompanying text.
63. This data was collected through an NSF funded research project (SES 00-95962). DAVID C. NIXON, THE INDEPENDENT REGULATORY COMMISSIONER DATA BASE (2005), http://www2.hawaii.edu/~dnixon/IRC/. The unit of analysis is the commission within a presidency (first term). There are ninety observations in the data.
64. These commissions include the Atomic Energy Commission, Commodity Futures Trading Commission, Consumer Product Safety Commission, Equal Employment Opportunity Commission, Federal Communications Commission, Federal Election Commission, Federal Maritime Commission, Federal Radio Commission, Federal Trade Commission, National Labor Relations Board, Nuclear Regulatory Commission, and the Securities and Exchange Commission.
65. We exclude the Federal Election Commission from these calculations since it has an even number of commissioners and by law no more than one half can be from the same political party. See 2 U.S.C. § 437c(a)(1) (2000). We also exclude from these calculations all presidents in office when a commission was created, since they were able to make all of the initial appointments. The case where a President was not able to appoint a majority was the Nuclear Regulatory Commission (NRC) during the Carter administration. For a discussion of the NRC see Carter Nominating Physicist to Nuclear Agency Vacancy, WASH. POST, June 30, 1977, at 54. Had we included the Board of Governors of the Federal Reserve, there would have been two more cases, the Kennedy and Nixon administrations. See NIXON, supra note 54.
66. Cases where presidents did not appoint majorities were coded as taking the full tenure of the President's term for these calculations. The overall average of nine to ten months for party majorities reflects the fact that about sixty percent of the cases were ones in which a party change had occurred in the White House.
67. Nowadays, commissioners generally are more likely to stay after their terms expire. For example, during the first term of the George W. Bush administration, one quarter of the commissioners who left had been serving longer than their stipulated terms. During President Eisenhower's first term, the percentage was closer to fifteen percent. From 1930 to 1980, the average commissioner stayed for nine to seventeen months less than his term allowed. From 1970 forward, the average commissioner began staying longer, so that by the George W. Bush administration the average commissioner stayed only two months less than his term allowed and more stayed longer.
68. See infra p. 473 fig.3.
69. One of the puzzling aspects of this picture is the relatively short time it took President Reagan to get party majorities on commissions at the same time that confirmation delays were increasing. The puzzle has two explanations. First, the apparent confirmation delay was driven by slow action on holdover commissioners - that is, the people he was renominating took longer to get confirmed. So, they were already on the commissions, and the confirmation delay did not matter for getting control of the commissions. To illustrate, his first five new nominations were confirmed less than one month after nomination (SEC, FCC, NRC, FCC, NRC). Four of these were Republican nominations, the longest delay for a non-holdover nomination being less than three months. By contrast, the average delay for a holdover was over four months. The Republican Senate was pretty good about moving Reagan's new nominees through. Second, Reagan also made six recess appointments in his first year, five Republicans and one Democrat (NLRB, FEC, EEOC). Confirmation delay is, obviously, not a problem if nominees obtain recess appointments.
70. See Matthew Mosk, Senate Battle Over FEC Nominee May Hamper Agency's Ability to Act, WASH. POST, October 26, 2007, at A19. The Consumer Product Safety Commission has been hampered by a similar dispute. In May 2007, President George W. Bush's nominee for chair, Michael Baroody, withdrew his nomination when it became apparent he would not receive confirmation. No subsequent nominee was put forward for the position, leaving the position on the three-person board vacant. As a result, the agency has not been able to issue new rules or judgments.
71. See Pete Yost, Consumer Commission Nominee Withdraws, WASH. POST, May 23, 2007, http://www.washingtonpost.com/wp- dyn/content/article/2007/05/23/AR2007052300897.html.
72. Mosk, supra note 61. On the Senate's increasing "batching" of Republican and Democratic nominees, see infra notes 140-47 and accompanying text.
73. Mosk, supra note 61.
74. Id.
75. Id.
76. In Part III, we examine how party polarization impacts the appointment and confirmation of commissioners. In so doing, we highlight how opposition-party senators make use of holds to advance their party's agenda. See infra text accompanying note 133-34.
77. Another reason the figure likely underestimates the true amount of delay is that the data do not include commissioners who were nominated but never confirmed. Nominees that were rejected outright or delayed to the end of a session experience the longest confirmation delays. If rejections or withdrawals are more likely to happen as time goes on, then looking at just those cases where nominees were confirmed underestimates the true effect of confirmation delay.
78. Studies of judicial and executive branch appointments likewise underscore that part of the confirmation delay is due to increasing political polarization. See Sarah A. Binder & Forrest Maltzman, Senatorial Delay in Confirming Federal Judges, 1947-1998, 46 AM. J. POL. Sci. 190, 197 (2002);
79. Nolan McCarty & Rose Razaghian, Advice and Consent: Senate Responses to Executive Branch Nominations 1885-1996, 43 AM. J. POL. Sci. 1122, 1141 (1999);
80. David C. Nixon & David L. Goss, Confirmation Delay for Vacancies on the Circuit Courts of Appeals, 29 AM. POL. RES. 246, 247 (2001).
81. See infra p. 476 fig.5.
82. See Mosk, supra note 61.
83. NOLAN MCCARTY, KEITH T. POOLE, & HOWARD ROSENTHAL, POLARIZED AMERICA: THE DANCE OF IDEOLOGY AND UNEQUAL RICHES (2006), available at http://polarizedamerica.com/;
84. see also Sean M. Theriault, Party Polarization in Congress (April 25, 2006) (unpublished manuscript), available at http://web.austin. utexas.edu/seant/party_polarization.pdf.
85. KEITH T. POOLE & HOWARD ROSENTHAL, CONGRESS: A POLITICAL-ECONOMIC HISTORY OF ROLL CALL VOTING 233 (1997).
86. See id.
87. The points made in the following two paragraphs are largely drawn from Neal Devins, Essay, The Academic Expert Before Congress: Observations and Lessons from Bill Van Alstyne's Testimony, 54 DUKE L.J. 1525, 1534-39 (2005). That essay looks at the ways that political polarization has transformed congressional hearings into a mechanism for parties to advance their pre-existing political agendas.
88. Sean M. Theriault, The Case of the Vanishing Moderate: Party Polarization in the Modern Congress 5 (May 2, 2004) (unpublished manuscript), available at http://www.la.utexas.edu/~seant/vanishing.pdf.
89. See Jason M. Roberts & Steven S. Smith, Procedural Contexts, Party Strategy, and Conditional Party Voting in the U.S. House of Representatives, 1971-2000, 47 AM. J. POL. SCI. 305, 306 (2003).
90. See, e.g., Kate O'Beirne, Rockefeller Republicans Take Manhattan, NAT'L REV. ONLINE, July 7, 2004, http://article.nationalreview.com/?q= NDJiODgzMWQ5NzBhN2NmYTY1Y2Y4MDUyMDY2NDczZmQ=.
91. 108th House Rank Ordering, http://voteview.com/hou108.htm (last visited Feb. 14, 2008); see also 109th House Rank Ordering, http://voteview.com/ hou109.htm (last visited Feb. 14, 2008).
92. Cf. Roberts & Smith, supra note 76, at 306. During the Civil Rights era of the 1960s, of course, there was a sharp North-South (as opposed to Democrat-Republican) divide in Congress.
93. Devins, supra note 74, at 1538; see also C. Lawrence Evans, Committees, Leaders, and Message, in CONGRESS RECONSIDERED 217 (Lawrence C. Dodd & Bruce I. Oppenheimer eds., 7th ed. 2000).
94. See Devins, supra note 74, at 1539.
95. For a fuller treatment of this topic, see generally Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311 (2006).
96. See id. at 2315.
97. Chester E. Finn, Jr., Affirmative Action Under Reagan, COMMENT., Apr. 1982, at 17, 28.
98. 1984 REPUBLICAN PARTY PLATFORM, reprinted in 40 CONG. Q. ALMANAC 41-B, 55-B to 56-B (1984). In particular, Reagan called for the overruling of Engel v. Vitale and Roe v. Wade - saying that "God should [never] have been expelled from the classroom," and that Roe was as divisive and wrong as Dred Scott. Ronald Reagan Remarks and a Question-and-Answer Session with the Student Body of Providence-St. Mel High School in Chicago, Illinios, 1 PUB. PAPERS 603 (May 10, 1982).
99. For insider accounts, see CHARLES FRIED, ORDER AND LAW, ARGUING THE REAGAN REVOLUTION - A FIRSTHAND ACCOUNT 132-71 (1991);
100. DOUGLAS W. KMIEC, THE ATTORNEY GENERAL'S LAWYER: INSIDE THE MEESE JUSTICE DEPARTMENT 48-65 (1992).
101. Brief for the United States at 33, Bowsher v. Synar, 478 U.S. 714 (1985) (Nos. 85-1377, 85-1378, and 85-1379).
102. Id. at 81 n.32. On the question of independent agencies, the Supreme Court reaffirmed and expanded Humphrey's. Bowsher v. Synar, 478 U.S. 714, 724-27 (1985). In Bowsher v. Synar, the Court - while invalidating the Gramm-Rudman statute - self-consciously reaffirmed the legality of independent agencies. Id. at 734-36. For an insightful account of internal deliberations in the case, see Bernard Schwartz, Administrative Law Cases During 1986, 39 ADMIN. L. REV. 117, 117 (1987). In Morrison v. Olson, the Court affirmed the power of Congress to restrict presidential removal of an independent counsel exercising purely executive powers. Morrison v. Olson, 487 U.S. 654, 688-93 (1987); see also id. at 724-26 (Scalia, J., dissenting) (lamenting that the Court's decision goes far beyond the limits recognized in Humphrey's ).
103. See KMIEC, supra note 86, at 48-57.
104. According to Doug Kmiec, one of the architects of Reagan's signing statement initiative, the "signing statement was 'crucial for the administration to give the executive branch direction top-down on inevitable interpretation.'" Christopher S. Kelley & Bryan W. Marshall, The Last Mover Advantage: Presidential Power and the Role of Signing Statements 6 (April 20, 2006) (unpublished manuscript, on file with All Academic Research), available at http://www.allacademic.com/meta/p139737_index.html (quoting Interview by Christopher S. Kelley with Douglas W. Kmiec, via E-mail (Apr. 23, 2001)); see also KMIEC, supra note 86, at 52-53.
105. See Christopher S. Kelley, A Matter of Direction: The Reagan Administration, the Signing Statement, and the 1986 Westlaw Decision, 16 WM. & MARY BILL RTS. J. 283, 290 (2007).
106. Exec. Order No. 12,291 § 3(c), 3 C.F.R. 127 (1981).
107. Exec. Order No. 12,498 § 1(a), (b), 3 C.F.R. 323 (1985).
108. GEORGE C. EADS & MICHAEL FIX, RELIEF OR REFORM? REAGAN'S REGULATORY DILEMMA 117 (1984). As one defender of these programs put it: "OMB was to be the President's eyes and ears in the regulatory field. . . . [Its] job was to ensure that individual actions taken by federal agencies were well reasoned, economically sound and coordinated with the policies of other agencies." KMIEC, supra note 86, at 48.
109. For similar statements by Reagan administration officials, see Christopher C. DeMuth & Douglas H. Ginsburg, White House Review of Agency Rulemaking, 99 HARV. L. REV. 1075, 1080-82 (1986);
110. see also TERRY EASTLAND, ENERGY IN THE EXECUTIVE: THE CASE FOR THE STRONG PRESIDENCY 163-64 (1992).
111. For critical assessments of the Reagan initiative, see generally Alan B. Morrison, Commentary, OMB Interference with Agency Rulemaking: The Wrong Way to Write a Regulation, 99 HARV. L. REV. 1059 (1986);
112. Morton Rosenberg, Beyond the Limits of Executive Power: Presidential Control of Agency Rulemaking Under Executive Order 12,291, 80 MICH. L. REV. 193 (1981).
113. For example, during the Eisenhower administration, the President was routinely accused of "perverting" federal regulatory agencies and "stacking" regulatory boards with Republican partisans. See Business Control of Agencies Seen, N.Y. TIMES, July 26, 1955, at 15;
114. Ike Seen "Stacking" U.S. Boards, WASH. POST, Nov. 7, 1955, at 2;
115. see also DAVID E. LEWIS, THE POLITICS OF PRESIDENTIAL APPOINTMENTS: POLITICAL CONTROL AND BUREAUCRATIC PERFORMANCE 11, 32-33, 40-41 (2008).
116. See generally Terry M. Moe, Regulatory Performance and Presidential Administration, 26 AM. J. POL. SCI. 197 (1982) (demonstrating "gradual, partisan-directed presidential impact" in independent-agency decision making from 1947-1977).
117. See EADS & FIX, supra note 94, at 141-42; see also RICHARD P. NATHAN, THE PLOT THAT FAILED: NIXON AND THE A DMINISTRATIVE PRESIDENCY 39-40 (1975) ("[Officials] were closeted for long hours in orientation sessions with career program officials, the purpose being for these career officials to explain to them program goals and accomplishments.").
118. See EADS & FIX, supra note 94, at 140-46; Steven D. Stehr, Top Bureaucrats and the Distribution of Influence in Reagan's Executive Branch, 57 PUB. ADMIN. REV. 75, 78 (1997).
119. Dick Kirschten, Team Players, NAT'L J., Feb. 19, 1983, at 385 (internal quotation marks omitted); see also EADS & FIX, supra note 94, at 141 (describing the "unusually uniform probusiness and antiregulation image" of Reagan nominees).
120. DONALD J. DEVINE, REAGAN'S TERRIBLE SWIFT SWORD: REFORMING AND CONTROLLING THE FEDERAL BUREAUCRACY 8-9 (1991). After determining whether a candidate was "commit[ted] to Reagan's objectives," the vetting process took into account "integrity, competence, teamwork, . . . toughness, [and] . . . commitment to change." EASTLAND, supra note 94, at 150 (internal quotation marks omitted). Another commentator similarly concluded that the Reagan administration sought to determine whether a candidate was a Reagan supporter, a Republican, a conservative, and a believer in Reagan's view of government.
121. See Chester A. Newland, A Mid-Term Appraisal - The Reagan Presidency: Limited Government and Political Administration, 43 PUB. ADMIN. REV. 1, 3 (1983). Correspondingly, because Reagan was more distrustful of the federal bureaucracy than perhaps any previous President, Reagan regularly appointed agency heads "with surprisingly little experience in the technical fields regulated by their agencies or offices." EADS & FIX, supra note 94, at 145;
122. see also James P. Pfiffner, Political Appointees and Career Executives: The Democracy-Bureaucracy Nexus in the Third Century, 47 PUB. ADMIN. REV. 57, 58 (1987).
123. See KMIEC, supra note 86, at 47-65.
124. Id. at 49.
125. See KMIEC, supra note 86, at 58.
126. Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. CHI. L. REV. 1, 28 (1995) (observing that the Justice Department thought both that the President had legal authority to extend OMB review and that the President might nevertheless lose in court).
127. In his memoir, OMB director David Stockman makes only one mention of OMB regulatory review, focusing almost exclusively on tax and spending cuts. See DAVID A. STOCKMAN, THE TRIUMPH OF POLITICS: THE INSIDE STORY OF THE REAGAN REVOLUTION 112-13(1987).
128. See supra notes 86-88 and accompanying text (discussing judicial filings). On Reagan's staffing of independent agencies, see EADS & FIX, supra note 94, at 140-48 (discussing the role of appointments in the Reagan Revolution); Neal Devins, Congress, the FCC, and the Search for the Public Trustee, 56 LAW & CONTEMP. PROBS. 145, 145-50 (1993) (discussing Reagan appointees to the FCC).
129. After Supreme Court rulings reaffirming independent agencies and upholding the independent-counsel statute, the Justice Department has largely steered clear of legal battles over the legitimacy of independent agencies. See KMIEC, supra note 86, at 58-60. The one notable exception is a dispute between the Bush I administration and the U.S. Postal Service over the Postal Service's power to independently litigate postal rate disputes. After Bush I had lost the 1992 election to Bill Clinton, the President - at the urging of White House counsel Boyden Gray - demanded the Postal Service kick such disputes over to the Justice Department. The Postal Service refused, successfully defending their prerogatives in court. For a discussion of this dispute, see generally Neal Devins, Tempest in an Envelope: Reflections on the Bush White House's Failed Takeover of the U.S. Postal Service, 41 UCLA L. REV. 1035 (1994). For additional discussion, see infra notes 135-38 and accompanying text
130. MICHAEL J. GERHARDT, THE FEDERAL APPOINTMENTS PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS 131 (2000). A study by Joan Flynn of presidential appointees to the NLRB, however, argues that Clinton (as well as Bush I) departed from Reagan administration efforts to push an ideological agenda through their independent-agency appointments.
131. See Joan Flynn, A Quiet Revolution at the Labor Board: The Transformation of the NLRB, 1935-2000, 61 OHIO ST. L.J. 1361, 1392-98 (2000). According to this study, Bush and Clinton both nominated "moderates" to the NLRB, individuals who "would have been routinely confirmed under the 'old rules.'" Id. at 1427. But the National Right to Work Committee (backed by Jesse Helms and other senatorial allies) pressured both Clinton and Bush to make more ideological choices. Id. at 1425-28. In this and other ways, Flynn concludes the Senate seized control of the NLRB. In our view, Flynn's study is useful - but we draw somewhat different conclusions from the same data. To start, we agree with Flynn that the confirmation process is more politicized and, as such, the Senate is pushing the President to nominate more ideological nominees. See supra notes 93-100 and accompanying text. Unlike Flynn, however, we think that Presidents typically agree with party leaders from their party - so that same-party nominees are likely to reflect presidential preferences. See infra notes 112-18 and accompanying text. The fact that a Republican senator put a hold on a Bush I nomination cuts against, but does not undermine, this claim. Helms may have taken a position more extreme than most in his party and, in any event, Bush I was able to appoint commissioners compatible both to his agenda and the agenda of Senate Republicans. Senate Confirms New Heads of OSHA and MSHA; Late Vote on Two DOL, Four NLRB Posts Possible, 1989 Daily Lab. Rep. (BNA) No. 194, at A-4 (Oct. 10, 1989). Cross-party nominees, in contrast, are likely to reflect opposition-party preferences. See infra notes 160-65 and accompanying text. For this very reason, as Flynn meticulously details, NLRB appointees are likely to be packaged - so that Presidents will name more than one commissioner at a time, some Democrat and some Republican. See Flynn, supra, at 1429-32. This practice of "batching" nominations has become more and more common - and it speaks to the ways party polarization has transformed the dance that takes place between the President and Senate over the appointment and confirmation of independent agency heads. See infra notes 140-45 and accompanying text.
132. GERHARDT, supra note 107, at 131.
133. LEWIS, supra note 95, at 24 (quoting Telephone Interview by David E. Lewis with Emily Sheketoff, (Sept. 29, 2006)).
134. James F. Blumstein, Regulatory Review by the Executive Office of the President: An Overview and Policy Analysis of Current Issues, 51 DUKE L.J. 851, 851-52 (2001).
135. Pildes & Sunstein, supra note 103, at 15.
136. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2248 (2001).
137. Executive Order 12,866 made explicit what had been implicit in Reagan-era executive orders, namely, that "centralized presidential regulatory review is aimed at making agency regulations 'consistent with . . . the President's priorities.'" Blumstein, supra note 110, at 853 (quoting Exec. Order No. 12,866, § 2(b), 3 C.F.R. 638, 640 (1994), reprinted in 5 U.S.C. § 601 (2000)). With respect to independent agencies, the Clinton order required threm to submit "[a] statement of the agency's regulatory objectives and priorities and how they relate to the President's priorities." Exec. Order No. 12,866, § 4(c)(A), 3 C.F.R. 638, 642 (1994), reprinted in 5 U.S.C. § 601 (2000). This demand was symbolically significant but, ultimately, without teeth - making it minimal in its scope and representing the least difficult legal path. See Pildes & Sunstein, supra note 103, at 32-33. That Clinton pushed the envelope further speaks both to the growing acceptance of OMB review in Congress and among the regulated community. It also speaks to the fact that Clinton (at the time of the Executive Order) presided over a unified government and, as such, was not likely to be subject to congressional reprimand. See Levinson & Pildes, supra note 82, at 2327 (discussing the growing importance of party identity in Congress-White House relations).
138. See Kagan, supra note 112, at 2293-96.
139. See, e.g., Exec. Order No. 13,422, 72 Fed. Reg. 2763 (Jan. 18, 2007) (amending Exec. Order No. 12,866, 3 C.F.R. 638 (1994)). For a general (and highly critical) treatment of this subject, see generally CHARLIE SAVAGE, TAKEOVER: THE RETURN OF THE IMPERIAL PRESIDENCY AND THE SUBVERSION OF AMERICAN DEMOCRACY (2007). For a more positive view of the Bush II administration, see Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power 32-51 (Univ. Chi. Law Sch. Pub. Law & Legal Theory Research Paper Series, Paper No. 121, 2006), available at http://papers.ssm.com/sol3/papers.cfm?abstract_id=922400 (arguing that President George W. Bush's signing statements do not threaten the separation of powers and may be a helpful aid in statutory interpretation).
140. Moe, supra note 51, at 271.
141. Id. Some scholars also suggest that "[o]nce an area of administration has been politicized it is virtually impossible to reverse the process." Pfiffher, supra note 99, at 59.
142. When Reagan assumed office, the parties were not especially polarized. See supra notes 74-85 and accompanying text. In other words, Reagan's initiatives foreshadowed today's era of party polarization. For reasons previously detailed, Reagan's efforts to transform the Republican Party anticipated a sharp ideological divide between Democrats and Republicans. See supra p. 477 fig.6.
143. Neal Devins, Signing Statements and Divided Government, 16 WM. & MARY BILL RTS. J. 63, 71 (2007); see also Kagan, supra note 112, at 2248-50.
144. Devins, supra note 119, at 71. Indeed, the combination of party polarization and supermajority requirements in the Senate limits Congress's ability to enact significant legislation during periods of unified government if the minority party has at least forty members in the Senate. But see DAVID R. MAYHEW, DIVIDED WE GOVERN: PARTY CONTROL, LAWMAKING, AND I NVESTIGATIONS, 1946-2002, at 76 (2d ed. 2005).
145. Devins, supra note 119, at 72.
146. Levinson & Pildes, supra note 82, at 2330-31.
147. Before the 2000 presidential election, government was unified for only six of the prior thirty-two years (twenty percent of the time). Id. During the Bush II years, Democrats controlled the Senate from 2001-2002 and both houses from 2007-2008.
148. See WILLIAM G. HOWELL, POWER WITHOUT PERSUASION: THE POLITICS OF DIRECT PRESIDENTIAL ACTION 6 (2003); Terry M. Moe & William G. Howell, Unilateral Action and Presidential Power: A Theory, 29 PRESIDENTIAL STUD. Q. 850, 851 (1999).
149. See Devins, supra note 119, at 67; William G. Howell, Unilateral Powers: A Brief Overview, 35 PRESIDENTIAL STUD. Q. 417, 418 (2005).
150. Devins, supra note 120, at 67.
151. Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J.L. ECON. & ORG. 132, 165-66 (1999); see HOWELL, supra note 124, at 121 ("The president's powers of unilateral action are greatest when they do not require Congress to take any subsequent action, something not easily done given the vast transaction costs and collective action problems that plague the institution.").
152. Devins, supra note 119, at 65.
153. During periods of unified government, when the President's party controls oversight, oversight takes a back seat to party loyalty. Specifically, party polarization typically results in comparatively lax oversight - both because there is a greater commitment to party unity and because the majority in Congress is more likely to agree with the President's policy priorities. Devins, supra note 119, at 74-76; Levinson & Pildes, supra note 82, at 2344-46.
154. See Devins, supra note 119, at 70.
155. The 2005 fight over Democratic filibusters of Bush II judicial nominees exemplifies this struggle. The Republican-controlled Senate was on the verge of approving the so-called "nuclear option," a change in Senate rules that would ensure up or down votes on all judicial nominees. Just before the scheduled vote, a group of fourteen Democrats and Republicans came together to craft a deal that averted that vote. Charles Babington & Shailagh Murray, A Last-Minute Deal on Judicial Nominees, WASH. POST, May 24, 2005, at A1.
156. For a more complete treatment of this issue, see generally David S. Law & Lawrence B. Solum, Judicial Selection, Appointments Gridlock, and the Nuclear Option, 15 J. CONTEMP. LEGAL ISSUES 51 (2006).
157. G. Calvin Mackenzie, The State of the Presidential Appointments Process, in INNOCENT UNTIL NOMINATED: THE BREAKDOWN OF THE PRESIDENTIAL APPOINTMENTS PROCESS 1, 29 (G. Calvin Mackenzie ed., 2001).
158. Ho, supra note 2, at 28.
159. Gary J. Andres, Postcards from Sisyphus: What I Saw During the Confirmation Wars, 35 POL. SCI. & POL. 55, 55 (2002) (providing a firsthand account of confirmation battles from a member of the White House Legislative Affairs Staff).
160. See supra notes 41-42 and accompanying text.
161. See supra notes 100-05 and accompanying text (discussing the Reagan administration's rationale for excluding independent agencies from OMB review); supra note 113 (discussing the Clinton administration's decision to ask independent agencies to provide planning documents to OMB).
162. See David E. Lewis, The Adverse Consequences of the Politics of Agency Design for Presidential Management in the United States: The Relative Durability of Insulated Agencies, 34 BRIT. J. POL. SCI. 377, 389-90 (2004).
163. See generally Neal Devins, Unitariness and Independence: Solicitor General Control over Independent Agency Litigation, 82 CAL. L. REV. 255 (1994) (discussing both pros and cons of this arrangement). On the perils of presidential challenges to independent litigation authority in court, see Devins, supra note 106, at 1042-50 (discussing Bush I's failed effort to seize litigation authority away from the U.S. Postal Service).
164. Political polarization and divided government have also resulted in confirmation delays of the President's nomination of executive-agency heads. See McCarty & Razaghian, supra note 68, at 1141.
165. Ho, supra note 2, at 29.
166. See Mackenzie, supra note 132, at 33 (discussing White House-Senate negotiations over the appointment of four FCC commissioners in 1997, which included two Democrats and two Republicans).
167. See Ben Schneider, Senators Await Reid Decision on Handling FEC Nominees, CONGRESS DAILY, Oct. 4, 2007 (discussing 2007 efforts to package the appointment of four FEC nominees, two Democrats and two Republicans).
168. See Steve Tetreault, Reid Plans to Block Republican NRC Nominee, LAS VEGAS REV.-J., July 18, 2007, at 2B (discussing efforts to package a Democratic and Republican nominee to the NRC).
169. See Flynn, supra note 107, at 1393 n.145, 1429-32.
170. Mackenzie, supra note 132, at 33. On occasion, majority and minority leaders of the Senate also orchestrate deals. See Karen Foerstel, Dozens of Clinton Nominees Win Confirmation After Lott Strikes Deal with Democrats, C.Q. WKLY., Nov. 13, 1999, at 2714.
171. Ho, supra note 2, at 4.
172. See infra notes 153-65 and accompanying text.
173. See supra notes 11-14 and accompanying text.
174. See discussion supra Part III.
175. For a competing perspective (limited to NLRB appointees during the Bush I and Clinton years), see Flynn, supra note 107, at 1413. For reasons previously detailed, we think that Flynn's analysis is not inconsistent with our claims. See supra note 107. Moreover, even if her analysis is inconsistent with ours and even if her data substantiate her claims, Flynn's analysis is limited to the NLRB. See Flynn, supra note 107, at 1365. As Flynn states, NLRB politics is unique in that presidents often cut a middle path in order to avoid choosing between business and labor interests. Id. at 1364. For that reason, Flynn sees Reagan's appointment of pro-business commissioners as anomalous. Id. at 1384; see infra note 165 and accompanying text (explaining how Reagan transformed the NLRB through his appointments).
176. For example, there are several journalistic accounts of how Presidents Clinton and Bush II named commission chairs who were party loyalists. See, e.g., David Hatch, Is the FCC Free From Partisan Politics?, 2005 NAT'L. J. 2935, 2935 (quoting Clinton FCC Chair Reed Hundt as saying that he "'naturally . . . preferred the White House to approve of [his] agenda'");
177. Stephen Labaton, Praise to Scorn: Mercurial Ride of S.E.C. Chief, N.Y. TIMES, Nov. 10, 2002, at 1-1 (stating that Bush II SEC chair Harvey Pitt "had ultimately become a casualty . . . struggling to remain a loyal Republican without understanding how his partisanship . . . would alienate important Democrats").
178. See infra p. 497 tbl.1.
179. See supra note 95 and accompanying text.
180. See supra note 140 and accompanying text.
181. See infra p. 493 fig.9.
182. Nolan McCarty, Keith T. Poole, & Howard Rosenthal, Polarized America Page, http://polarizedamerica.com (last visited Feb. 17, 2008).
183. See, e.g., B. Dan Wood & Richard W. Waterman, The Dynamics of Political Control of the Bureaucracy, 85 AM. POL. SCI. REV. 801, 801 (1991).
184. Id. at 801.
185. Id. at 822.
186. Ho, supra note 2, at 4. For an anecdotal study of the FCC, focusing on how Reagan transformed agency decision making by appointing commissioners committed to his deregulatory agenda, see generally Devins, supra note 105.
187. Keith S. Brown & Adam Candeub, Ideology Versus Partisanship: Regulatory Behavior and Cyclical Political Influence 10 (Legal Stud. Research Paper Series, Paper No. 04-10, 2006).
188. James J. Brudney, Isolated and Politicized: The NLRB's Uncertain Future, 26 COMP. LAB. L. & POL'Y J. 221, 248 (2005).
189. Id.
190. Id.
191. Id. For additional discussion of the NLRB, see supra notes 140-47 and accompanying text.
192. See infra p. 497 tbl.1.
193. For a fairly comprehensive detailing of significant litigation disputes between independent agencies and the Solicitor General, see Devins, supra note 138, at 258-59.
194. Id. at 258.
195. See id. at 264.
196. Id. at 280.
197. See id. at 274-78 (detailing statutory delegations of independent litigating authority to independent agencies).
198. Id. at 258.
199. Griffin B. Bell, The Attorney General: The Federal Government's Chief Lawyer and Chief Litigator, or One Among Many?, 46 FORDHAM L. REV. 1049, 1061 (1978). For a fuller discussion of Bell's position, contrasting it to the views of the Reagan administration, see Devins, supra note 50, at 281-82.
200. Devins, supra note 138, at 288.
201. Id. at 285-86.
202. Devins, supra note 50, at 281 (internal quotation marks omitted).
203. Id. at 282.
204. See id. at 284-312.
205. Jonathan Eisenberg, Beyond the Basics: Seventy-Five Defenses Securities Litigators Need To Know, 62 BUS. LAW. 1281, 1293 (2007);
206. George F. Fraley, III, Note, Is the Fox Watching the Henhouse?: The Administration's Control of FEC Litigation Through the Solicitor General, 9 ADMIN. L.J. AM. U. 1215, 1219 (1996).
207. See infra p 497 tbl.1.
208. See Devins, supra note 50, at 282.
209. See supra note 51 and accompanying text.
210. See supra note 128 and accompanying text.