Reed E. Hundt was chairman of the Federal Communications Commission from 1993 to 1997.
Ever since the Internet exploded into our lives like the big bang, Republicans and Democrats have sometimes disagreed about the role of government with respect to this new global medium. Partisan conflict flared this month when Federal Communications Commission Chairman Tom Wheeler proposed a “net-neutrality” rule favored by President Obama.
The disagreement goes well beyond the matter of the rule itself. At issue is the meaning of independence for New Deal and progressive-era regulatory agencies such as the FCC.
That’s why FCC Commissioner Ajit Pai condemned not just Wheeler’s proposal but also what he called the “unprecedented involvement” of the executive branch in the process. Pai was referring to the president’s November YouTube video, asking the FCC to give the Internet the same jurisdictional treatment that it applies to telephone and cellular networks.
In effect, Pai accused Wheeler of taking orders from the Oval Office.
Twenty years ago, when I was an FCC chair appointed by a Democratic president, the Republicans took control of Congress and an even starker charge was leveled by some: I would use the commission’s vast regulatory powers over the media to assist the political fortunes of my high school classmate Vice President Al Gore and my law school friend President Bill Clinton. (The connections were just coincidences, I used to say, and everyone would laugh, if a little uneasily.)
Sen. John McCain (R-Ariz.) met the issue head-on. Calling to explain the ground rules of our new relationship, he said: “I may tell you what I want you to do, but you should do what you personally think is right.” His message: I could not get help from the White House. The FCC is independent of the executive branch and accountable to Congress and the courts. McCain expected me to take personal responsibility for its decisions.
That was a good way then, and it’s a good way now, for FCC commissioners to think about their roles as they are buffeted by political winds in an era of divided government.
Regulatory agencies exist because Congress cannot shoulder the burden of passing laws that are as technical or time-sensitive as regulations. Congress needs regulators to turn its laws into detailed, practical rules.
In addition, Congress sometimes asks agencies to balance competing goals. One senator exaggerated only somewhat when he said of the 1996 Telecommunications Act, “We put one thing in and then we put the opposite in. You figure it out when you write the rules.” That is the law Wheeler and the rest of the commission must interpret as they weigh their final decision on net neutrality.
However, although Congress routinely delegates much power to agencies whose leaders are picked by the president, it does not want the president to dictate the actions of those agencies.
The Administrative Procedure Act (APA) of 1946 describes the compromise. An independent regulatory agency can act only in accordance with federal statutes and on the basis of a public record. The judiciary can amend or reject agency rules that it considers to be inconsistent with or beyond the legislative mandate or not supported by the public record. Indeed, the commission must tackle the net-neutrality issue precisely because the court threw out its previous decision on the topic.
Stretched across the three poles of government — executive, legislative and judicial — the FCC is in a free-fire zone of vigorous input. But under the APA, anyone telling the FCC what to do in making a rule must speak in public.
That is why, when Clinton wanted the FCC to make TV networks carry more educational television for children, he wrote me an open letter. If YouTube had existed then, he would have been all over it. Contrary to Pai’s statement, it is not in any way unusual for the executive branch to advise the FCC in public about what rules to write.
For their part, members of Congress wrote thousands of letters to me, asking for action on myriad matters. Surely, Wheeler receives a similar volume. To press their points orally, but still in public, the members summon agency heads and commissioners to hearings in which robust, and sometimes theatrical, expression of opinion is routine.
Open debate, especially on YouTube and other new media, is healthy. Elected leaders should take sides on important issues. Their views should be known so that voters can hold them accountable.
In any event, Congress holds the trump card. If it does not approve of a rule, it can simply enact a law overturning the agency’s decision. Indeed, Republican leaders already have drafted a bill that would supplant Wheeler’s rule if it is ultimately adopted by the FCC. Of course, their plan may or may not be politically popular, and the drafters may or may not be able to pass it.
In the meantime, McCain’s advice to me 20 years ago applies to Wheeler and his colleagues. After getting everyone’s views out in the open, go ahead and act, in public, in the way you think best. Then it will be you and nobody else who wins or loses in court, as well as in the court of public opinion and the judgment of history.