Integrity of the Process Flashcards
Policymakers and Outside Influence
- don’t wan policymakers plotting w/ individual parties w/o disclosure to public
- high-power jobs often have connections though (industry titans, nonprofit leaders, members of Congress) -> few get high agency positions on blank slate -> come in w/ strong networks + strongly held positions -> ethical challenge
HBO v. FCC - Background
- DC Cir 1977
- at this time, you didn’t have to subscribe to cable - cable service $5-6; HBO subscription $5-7 per month (only 5-10 million ppl have subscriptions)
- dispute over FCC rule to allow cable subscription (HBO) to offer broader range of offerings - broadcast TV cos reluctant to give up protected share of content (worried won’t get enough audiences to support ad revenue)
HBO v. FCC - Facts
- 3-yr notice and comment process -> FCC adopts amendments to rule governing what content cable co can offer to subscribers
- during period after hearing on the rule (formal rulemaking) but before FCC makes decision public (during FCC deliberation), broadcast company and subscription companies met with FCC many times, tainting the process
- court winds up “particularly concerned that the final shaping of the rules … may have been by compromise among the contending industry forces, rather than by exercise of the independent discretion in the public interest the Communications Act vests in individual commissioners.”
-> Secret, off the record communication: Concerned that ex parte communications to FCC commissioners outside of the public record;
-> Companies potentially saying different things behind closed doors to FCC commissioners compared to what they are writing in publicly submitted comments to FCC
-> Concern that 60 pages of ex parte communications did not get into the NPRM; the log of communications were not recorded
Significance of Ex Parte Communications
- undermine integrity of public process -> turns public notice and comment process into a sham
HBO v FCC - Ruling on the Case
- Agency CAN’T save itself by making a good decision despite corrupt process (integrity of process so critical that can’t really judge if outcome good or not)
- also can’t save by disclosing the communications to ct (still deprived of adversarial comment process)
- caveat though - agencies can’t be hermetically sealed
HBO v. FCC - Quotes
- “. . [A] reviewing court cannot presume that the agency has acted properly, but must treat the agency’s justifications as a fictional account of the actual decisionmaking process and must perforce find its actions arbitrary.”
- “Even if the Commission had disclosed to this court . . . what was said to it ex parte, . . . we would not have the benefit of an adversarial discussion among the parties.”
- inability to close off agencies - “[W]e recognize that informal contacts between agencies and the public are the ‘bread and butter’ of the process of administration and are completely appropriate so long as they do not frustrate judicial review or raise serious questions of fairness.”
HBO v. FCC - Rule for Ex Parte Communications
Court adopts three-part rule for ex parte communications with private parties:
- 1. [Pre NPRM information forming basis of decision] communications which are received prior to issuance of a formal notice of rulemaking do not, in general, have to be put in a public file. Of course, if the information contained in such a communication forms the basis for agency action, then, under well established principles, that information must be disclosed to the public in some form.
- 2. Once a notice of proposed rulemaking has been issued, however, any agency official or employee who is or may reasonably be expected to be involved in the decisional process of the rulemaking proceeding, should “refus[e] to discuss matters relating to the disposition of a [rulemaking proceeding] with any interested private party, or an attorney or agent for any such party, prior to the [agency’s] decision . . . ,”
- 3. If ex parte contacts nonetheless occur, we think that any written document or a summary of any oral communication must be placed in the public file established for each rulemaking docket immediately after the communication is received so that interested parties may comment thereon.
HBO v. FCC - Takeaway
- basically, if ex parte communications occur during comment period, agency rule is safe if agency immediately lodges in public docket, it’s fine; however, if ex parte communications occur after comment period, then adversarial process is lacking and process is tainted
Should ex parte communications be allowed between agencies and members of Congress on active rulemakings?
- pro - Congresspeople are there to represent public constituents (+ therefore different from private parties rep’ing private stakeholders)
- con - Congresspeople don’t always stick to rep’ing public
-> can rep non-constituent interests
-> might be laundering private interest views
-> might use status to lobby + jump queue
-> lack of disclosure problematic regardless
-> theoretically could mess w/ SOP if Congresspeople influencing rule based on its own statute (Congress should’ve been more specific as a whole if wanted something different)
-> power of Congress over agencies - can threaten appropriations, oversight, political prospects, etc.
Sierra Club v. Costle - Facts
- DC Circuit, 1981
- deals w/ CAA standards for coal-fired electric power plants
- essentially, two core kinds of communications at issue - late comments, and meetings at the White House (including with a Senator who supported coal industry)
- Meeting details were lodged in public docket
Sierra Club v. Costle - Summary of Ex Parte Communications at Issue
"”Scores” of pro-industry “ex parte” comments were received by EPA in the post-comment period, states EDF, and various meetings with coal industry advocates including Senator Robert Byrd of West Virginia took place during that period. These communications, EDF asserts, were unlawful and prejudicial to its position.
In order for this court to assess these claims, we must identify the particular actions and incidents which gave rise to EDF’s complaints. 423 Aside from a passing reference to a telephone call from an EPA official to the Chief Executive Officer of NCA, 424 EDF’s procedural objections stem from either (1) comments filed after the close of the official comment period, or (2) meetings between EPA officials and various government and private parties interested in the outcome of the final rule, all of which took place after the close of the comment period.”
Sierra Club v. Costle - Volpe Test
- determines whether Congressional contacts appropriate or not
Two conditions need to bemet before admin rulemaking can be overturned just on Congressional pressure:
- “First, the content of the pressure upon the Secretary is designed to force him to decide upon factors not made relevant by Congress in the applicable statute.”
- “Second, the Secretary’s determination must be affected by those extraneous considerations.”
Sierra Club - Application of Volpe to Facts
- ct says neither criterion satisfied
- says Senator Byrd expressed “strongly” his position to EPA, but “there is no evidence he attempted actively to use “extraneous” pressures to further his position”
Sierra Club - Stance on Congressional Contacts
- basically, the ct seems fine with Congressional reps communicating their positions to agencies
-> seems to portray this as ordinary part of process, should expect Congresspeople to advocate for their constituencies + fine as long as they’re not undermining will of Congress as a whole, + expect agencies to balance the pressure + the info they receive
“Americans rightly expect their elected representatives to voice their grievances and preferences concerning the administration of our laws. We believe it entirely proper for Congressional representatives vigorously to represent the interests of their constituents before administrative agencies engaged in informal, general policy rulemaking, so long as individual Congressmen do not frustrate the intent of Congress as a whole as expressed in statute, nor undermine applicable rules of procedure. Where Congressmen keep their comments focused on the substance of the proposed rule—and we have no substantial evidence to cause us to believe Senator Byrd did not do so here—administrative agencies are expected to balance Congressional pressure with the pressures emanating from all other sources. To hold otherwise would deprive the agencies of legitimate sources of information and call into question the validity of nearly every controversial rulemaking.”
Sierra Club - Factor Ignored By Ct
- Senator Byrd had infamous reputation for having influence in appropriations process and directed lots of money to his home state of West Virginia
- doesn’t really seem reasonable for Court to assume that EPA was not aware that Byrd had enormous influence over appropriations - pretty absurd to ignore this power dynamic reality
