More on the Independence of Genachowski’s FCC

by on December 30, 2009 · 8 comments

In a letter to the editor of the Washington Post last week, former FTC Commissioner Thomas Leary responded to a Post article describing the FTC’s suit against Intel as a  “major step for President Obama,” consistent with his campaign promise to “reinvigorate antitrust enforcement.”  Leary responded indignantly to this characterization by declaring:

People seem to forget that the FTC is a bipartisan independent agency.

As a Republican FTC commissioner appointed by a Democratic president, I can vouch for the agency’s independence. During my service from 1999 to 2005 in the administrations of presidents Bill Clinton and George Bush, I never received a direct or indirect policy recommendation on a pending matter from anyone in the White House or from any of the people in Congress who had actively supported me.

Leary’s leeriness about political encroachment on the FTC illustrates the depth of abiding faith in independent regulatory agencies as standing truly apart from the day-to-day politics of Washington—especially when the might of the regulatory state is being wielded against a particular company in quasi-judicial prosecutions, such as antitrust enforcement actions. But if the independence of the FTC is this important, what about the independence of the Federal Communications Commission, with its broad jurisdiction over the media and tools of free speech?

Leary would probably be appalled at the politicization of the FCC in recent years. Bush’s second FCC chairman, Kevin Martin, was infamous for his political Machiavellianism and widely despised by the communications law bar. By contrast, when it became clear that Obama’s high-tech advisor Julius Genachowski would succeed Martin as FCC Chairman shortly before Obama’s inauguration, he received a chorus of applause from a wide range of philosophical perspectives, including from our former president at PFF, Ken Ferree:

Julius Genachowski is an outstanding choice to chair the Commission.  He is knowledgeable, experienced, and presumably will have the ear of the most influential people within the Administration.

While no one would compare the eminently likable Genachowski to Martin, his relationship to the Obama administration appears unprecedented in its closeness, and one must ask whether that’s a good thing for the head of a supposedly “independent” regulatory agency or integrity of that agency’s decision-making. At the end of November, the White House took the unprecedented step of releasing its visitor logs through the end of August—a major step towards the kind of transparency candidate Obama promised on the campaign trail. But the logs also revealed something remarkable: that Genachowski had visited the White House 47 times, making him the visitor with the third-most visits out of 1,786 total visitors.  This pattern is astonishing when one considers that no other agency head racked up more than five visits, and only a handful of independent agency heads visited at all, as Adam Thierer and I noted.

While most of these visits (39) occurred while Genachowski was technically serving as lead technology advisor to the new administration, it was clear even before Obama’s inauguration that Genachowski would be chairman, and 31 of those visits occurred between his formal nomination and confirmation. A further eight visits occurred after his Senate confirmation, when he was officially FCC Chairman—but even that far exceeded visits by other agency heads, and occurred during what are generally the two slowest months Washington, July and August.  So it will be very interesting indeed to see how much more visits Genachowski has logged since August when the White House releases updated visitor logs, as it has promised to do “in December 2009.” That clock is winding down rapidly!

So what’s the big deal? As Adam Thierer and I noted in October:

at least in theory, “independent agencies” are supposed to be just that: independent.  They aren’t part of any Cabinet-level department and are supposed to be insulated from direct, day-to-day political pressure through bipartisan commissions, fixed terms, and safeguards against presidential removal.  At least that was always the “progressive ideal”: independent, “scientific” expert agencies and officials.

Think back to Leary’s comment as a former Republican Commissioner—defending an enforcement action taken by a now Democratic-led FTC with a palpable outrage that anyone should question the independence of his successors or try to cast the FTC’s enforcement actions in a partisan light:

[Over six years] I never received a direct or indirect policy recommendation on a pending matter from anyone in the White House or from any of the people in Congress who had actively supported me.

Leary’s vision of agency independence is so profoundly different from Genachowski’s apparent practice that one might think Leary was describing how regulatory agencies operated in a different century or on a different planet. At the very least, Genachowski’s close relationship with the Obama administration will make it difficult, if not impossible, for anyone on the outside to clearly demarcate between Genachowski’s decisions as Chairman and the Administration’s agenda—as Leary could do for the FTC. That means the many contentious issues the FCC will deal with in the coming years (e.g., net neutrality and potentially broader regulation of the applications and services layers of the Internet) will likely become increasingly partisan issues—which is a recipe for poor policy-making, especially given how highly technical some of those issues are.

This dynamic is most disturbing when it involves the FCC above all other “independent” regulatory agencies, as we noted:

whose extensive media regulations give it leverage that has been used to squelch political opposition to past administrations.

Even liberal Democrats, such as Alfred Kahn, a Carter appointee, have long recognized that the FCC is particularly vulnerable to “regulatory capture” by special interests.  That’s why the FCC requires disclose of all “ex parte” meetings between Commissioners or staff and “interested parties” outside government.  Genachowski’s predecessors, Kevin Martin and Michael Powell, were both criticized by Democrats for their close ties to the Bush administration, largely because of fears that special interests were influencing FCC decisions through the White House.  Had either Republican visited the White House half as often as Genachowski, there would have likely been howls from the Left about “undue influence.”

And even more disturbing when it involves this hyper-activist FCC, with a sweeping view of its own jurisdiction:

Under Genachowski, the FCC has essentially asserted jurisdiction over the entire Internet, recently inquiring about regulation of online television, video games, Google Voice, cloud computing, the Apple apps store, and resurrecting railroad-era concepts of common carriage “neutrality” in ways that could ultimately apply not only to broadband, but also to search engines, social networking, and devices.  As we’ve warned, Chairman Genachowski is leading us down the road of vastly increased government meddling across cyberspace.  That regulatory apparatus will inevitably be used as a tool of politics, if not by this administration, then by another less noble one in the near future—which might explain why some in this administration are so keenly interested in Chairman Genachowski’s FCC.

Ultimately, the health of any democracy depends on the independence of its media from political meddling. After free speech rights guaranteed by the First Amendment and due process rights guaranteed by the Fourteenth Amendment, the independence of the FCC from direct political pressure has been perhaps the greatest bulwark of freedom of the press in America. Discard that all that  and it’s not hard to see how we could someday, perhaps under some future president, see headlines like this one the Land of the Free: “Venezuela: Chávez Won’t Renew TV Station’s License.”

If Genachowski, an exceptionally well-qualified technocrat, wants to avoid being seen as the “Cat’s Paw” for a highly ideological administration with a broad agenda of reinventing a radically more “Progressive” America, he would do well to ask “What Would Leary Do?” and be a lot more leery of even creating the impression of taking any “direct or indirect policy recommendation” from the White House.

If Democrats don’t like the sound of “Palin Won’t Renew TV Station’s License” (or “Gingrich Won’t Renew Google’s Search Engine License“), they had better start remembering that every action taken by this administration and its appointed independent agency heads will set precedents for presidents they may loathe as much as, say, Richard Nixon, whose abuse of the FCC’s “Fairness Doctrine” as an instrument of censorship is legendary.

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