Why Process Matters

by

Randolph J. May  

Process matters.

No doubt sometimes we may think the substantive outcome of particular government actions - whether net neutrality, spectrum auctions, merger reviews, or whatever - may matter more. And perhaps in the short term, and for those especially impacted, this may be true.

But, in the end, and for the most part, the process by which the government's decisions are reached is as important as the substantive result.

This is why, right from the Free State Foundation's founding in 2006, promoting rule of law principles has been an important part of our mission. It is why a considerable amount of our work focuses on various aspects of the administrative process, especially the Federal Communications Commission's processes.

And it is why I have been pleased that FCC Commissioner Michael O'Rielly has devoted so much attention, in a series of blog posts, to offering various process reforms that should be considered by the agency.

According to the World Justice Project, a central element of the rule of law is that "[t]he process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient." This is the standard against which the process employed by the FCC in reaching substantive decisions, including adoption of regulations that carry the force of law, ought to be measured: Is the process employed accessible, fair, and efficient?

In his book, The Rule of Law in America, Ronald Cass says the rule of law "pulls society in the direction of knowable, predictable, rule-based decision-making, toward limitations on the alignment of power with legitimacy." Knowable, predictable, rule-based making decision-making - another way of characterizing elements of a rule of law regime.

In his posts concerning reforming the FCC's processes, Commissioner O'Rielly has addressed a number of practices involving "the way that the Commission works" that are worthy of attention. These include, for example, matters relating to release of Commission draft items to the public in advance of Sunshine meetings; delegation of decision-making authority to the Commission's staff; granting "editorial privileges" to the staff regarding orders adopted by the Commissioners; and retrospective review of Commission regulations.

Of course, as long-time FCC-watchers know, some of the practices that Commissioner O'Rielly has addressed have been in place since shortly before Genesis, or at least shortly thereafter. But, at least in my book, that should not make them immune from reconsideration and change, when warranted.

Here is just a small sample of what Commissioner O'Rielly has said regarding various process matters:

Delegated Authority: Serious Objections and Solutions 

"As a minority commissioner, it is bad enough to have your ideas and concepts rejected as a whole and have little to no input on an item (unless you completely ignore your principles).  It is worse to see the extension of those decisions expanded upon for years to come by a bureau under delegated authority.  While I wholeheartedly admit that I was not elected and therefore not directly answerable to the American people, my colleagues and I are subject to confirmation by the Senate, resulting in a closer level of accountability to the democratic process than that maintained by a bureau or office chief."

Fixing Flawed and Non-Existent "Editorial Privileges" 

"There does not seem to be a clear understanding even within the agency, since the procedure is not in the FCC's rules or its current internal guides (which are not publicly available).  In other words, I was being asked to grant authority that doesn't officially exist at all.  When alerted to this fact, I realized that I could no longer support it."

Update on Advance Posting of Commission Meeting Items 

"The concern is that, if we provide a copy of the draft item, we will get more specific comments and ex partes that staff will have to address when finalizing the item.  That is, we might actually get constructive feedback based on facts about what is in a draft that require us to roll up our sleeves and explain why we've made certain decisions and discarded alternatives. At bottom, that's not a legal issue but a logistical one."

*   *   *

You should read the entirety of Commissioner O'Rielly's pieces to get the full context of his reasoning and the specifics of his proposals. But it should be clear - whether or not you or I necessarily agree with all his proposals - that Commissioner O'Rielly is raising serious issues that ought to be discussed and debated on the merits. Because process matters if the rule of law is to be upheld.

I am very pleased that the Free State Foundation's lunch seminar tomorrow - Tuesday, July 28 at the National Press Club - will provide a forum for just such discussion and debate. The program is titled, "Implementing Real Regulatory Reform at the FCC." Commissioner O'Rielly will deliver a keynote address. After his remarks, Richard Wiley, former Chairman, Commissioner, and General Counsel of the FCC, and Gus Hurwitz and Daniel Lyons, both telecom and administrative law scholars who are members of FSF's Board of Academic Advisors, will react and offer their own thoughts.

Hope to see you on Tuesday. BTW, use #FCCReform for your tweets.

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