As our system of government becomes more complex the importance of independent agencies and the boards that govern them continues to grow. If we define such agencies functionally, rather than legally1, this sweeps in the obviously influential supreme court but in the modern world more and more turns on agencies like the FCC, Federal Reserve, SEC, etc… Indeed, in many ways these independent agencies are more important than congress itself. For a variety of reasons congress simply isn’t equipped to engage in precedent driven rule making requiring substantial expertise and institutional competence, e.g., its hard to imagine congress successfully running the recent broadcast incentive auction or developing a set of rules for whitespace devices much less run the Fed.
However, recent battles over supreme court appointments and the controversial choices of new FCC commissioner Pai to rollback net neutrality rules expose the obvious danger in this system. As the importance of these agencies increases the importance of these appointments to various political interests grows and that turns the appointment and confirmation process into an acrimonious partisan struggle. Now, at first glance one might think that’s fine. After all, if these agencies have so much power over the lives of average Americans isn’t it appropriate for our political disagreements to play out in the appointment process? Unfortunately, especially given limitations imposed by supreme court precedent, this method of choosing the heads of independent agencies is problematic for a number of reasons.
- Political interest in such appointments is usually limited to a few hot button issues which means politicians will favor predictable ideologues.
- The best policies for these agencies are often counterintuitive and not what plays well for voters who lack the time to learn.
- The president is given a disturbing amount of (effectively) legislative power.
- Politicians’ self-interest will push them towards the most vanilla least criticizable candidates rather than the best.
- All too often political conflict leaves us with unfilled positions exacerbating the other problems, particularly 3.
I think we can do a lot better. We need a way to render such appointments responsive, in a long term sense, to the will of the voters but insulated from their immediate interests and preferences. I propose a kind of US house of lords consisting of former senators and representatives who have retired from office (and are barred from ever holding federal elected office again) as well as perhaps former judges and commission members from these independent agencies. Unlike the UK house of lords I wouldn’t let membership determined by votes but be automatic for all former congressmen who wish to join with their voting power proportional to their number of years of service (thus making the votes proportional to congressional representation modulo age/participation gaps). One might imagine multiple ways this could work from the body directly selecting appointees to being responsible for admitting distinguished academics, lawyers, etc.. into various expert bodies which then nominate board members for independent organizations.
Importantly, in the long run this body still reflects the choices of the American voter but, barred as they are from running for future office, their concerns will tend to be more long term and historical in nature. This would be especially true if we mandated secret voting in this ‘house of lords’. The voters will never again evaluate them for public office so why not let them vote secretly?
Of course this would require a constitutional amendment but I still think it’s a neat idea.
- That is an independent agency is a unit of the federal government answerable to a governing body appointed by the president with senatorial consent but whose members can’t be removed without cause. ↩