Presidents often interfere in the workings of supposedly “independent” agencies. President Obama publicly expressed his preference for how the Federal Communications Commission (FCC) should regulate broadband. President Reagan reportedly met secretly with then FCC Chairman Mark Fowler about the Commission’s “Financial Interest and Syndication Rules.” And chairs are frequently personal friends of the president who appointed them.
But those examples are all “tan suit scandals” compared to President Trump’s abrupt withdrawal of FCC Commissioner Michael O’Rielly’s (re)nomination. While the president provided no reason, it is widely understood that the president fired O’Rielly because the commissioner had the temerity to express “deep reservations” about the wisdom and legality of the president’s proposal for the FCC censor social media platforms.
The FCC, like many expert agencies, is supposed to be independent from the Executive Branch. This independence is intended to help it remain objective and not unduly influenced by short-term partisan politics.
The president’s behavior shows us why independence can be a desirable feature of an agency, how difficult it is to maintain that independence, and, perhaps ironically, the importance of one of Commissioner O’Rielly’s major initiatives: ensuring fair processes for making decisions.
Executive branch officials in governments around the world often chafe at decisions by independent agencies, complaining about “unelected officials” making important public policy decisions. Independence from political pressure, however, is particularly important when confronting heated issues. That description applies to many issues these days, but is particularly true of the debate over Section 230 of the Communications Decency Act, which keeps platforms of all kinds mostly free from liability for users’ posts. It is the Section 230 quagmire that, to the President’s outrage, Commissioner O’Rielly waded into after the Commerce Department asked the FCC to review ways it could censor social media.
The thing about independence, though, is that it is never complete, and we wouldn’t even want it to be. The independent agency should be connected to society’s broad preferences and, like any government official or agency, be accountable to someone. That’s why Congress has oversight authority over the Commission and the President appoints the commissioners for Senate approval.
Presidents can appoint anyone they like, so by one reckoning, the president did nothing wrong by withdrawing the nomination. But the president appoints commissioners to five-year terms and cannot fire them precisely to avoid their being influenced by the president’s whims. The coincidental timing of the section 230 debate allowed President Trump to short-circuit the FCC’s independence by taking advantage of the appointment process to, in effect, fire him anyway. Commissioner O’Rielly’s first term expired at the end of June, the president appointed him for a second term, and the Senate was in the process of considering the nomination. Because the commissioner’s renomination was still pending, the president could retaliate simply by withdrawing the nomination. And, as we know, he did.
It is impossible to say what the “right” level of independence is, or the best ways in which an agency should be independent. And, as mentioned earlier, total independence is unrealistic. But, to my knowledge, no president ever even tried to remove a commissioner whose offense was saying that perhaps we ought to think about whether a proposal is constitutional before rushing to endorse it.
Among the many issues important to commissioner O’Rielly, process reform ranked as a key priority. He noted that agencies that fail to review internal rulemaking procedures would ultimately lead to “inconsistent and arbitrary processes and decision making.” He probably did not intend to become a poster child for what happens without good process, but through his actions the president has shown the truth of Commissioner O’Rielly’s concerns.
Commissioner O’Rielly is a smart, dedicated public servant who stayed true to his convictions. Whether or not one agrees with his policy positions, his integrity is a model we all should hope others will follow. President Trump’s rash decision is a blow to the FCC and the country. Commissioner O’Rielly and the FCC deserved better.