109 Iowa L. Rev. 1041 (2024)

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Abstract

Independent regulatory commissions are, in the face of a judicial campaign against their independence, suffering from an internal ailment that is just as serious. These mainstays of the administrative state, including the Federal Trade Commission, National Labor Relations Board, and other important regulators, are becoming one-person bands. Growing dominance by their chairs is occurring in tandem with a rash of associate commissioner resignations. We suspect these trends are related.

The phenomenon of the disappearing associate commissioner threatens the very purpose of independent commissions. The trend has degraded commissioners’ ability to marshal expertise, resist the political branches’ influence, and deliberate as multimember bodies. This Article shows how chairs and chair-supervised staff have wrested control from other commissioners; how the White House, executive agencies, and Congress have encroached on commissions’ turf; and how an increasingly partisan climate has turned deliberative discussions among commissioners into party-line votes. Leveraging data on 684 current and former commissioners on eleven key commissions, the Article then identifies associate commissioners’ growing propensity to exit their positions early in their terms.

These developments suggest that many of the perceived benefits of the independent commission form fail to be fully realized. Shorter tenures erode commissions’ political insulation and collective experience and may degrade the quality of their deliberations and the signal value of dissents from commission daises. Whereas proponents of independent commissions vigorously defend the form against judicial challenges, they have failed to confront these developments that, as a functional matter, chip away at the purposes that independence is designed to serve. 

To address this oversight, we offer several prescriptions to reinvigorate commissions. Most notably, Congress should encourage associate commissioners to serve their full terms by granting them greater programmatic authority, agenda-setting power, and tiered or deferred compensation that rewards lengthy service. Through these and other changes, officials can help restore commissions to their previously exalted place in the administrative state.