October 4, 2007  ·  Lessig

The wires are sparking with news of the GAO report (pdf) that FCC insiders routinely tipped lobbyists and corporate insiders about agency agenda decisions before they were made public. This is critical, because under agency “sunshine rules,” FCC members can’t be lobbied for the week between the public announcement of an agenda and the meeting. Knowing what’s going to be announced on the agenda in advance thus gives lobbyists and corporate insiders an opportunity to lobby before the sun[shine rules] rise. From the report:

FCC generally followed the rulemaking process in the four case studies of completed rulemakings that GAO reviewed, but several stakeholders had access to nonpublic information. Specifically, each of the four rulemakings included steps as required by law and opportunities for public participation. Within the case studies, most ex parte filings complied with FCC rules. However, in the case studies and in discussions with other stakeholders that regularly participate in FCC rulemakings, multiple stakeholders generally knew when the commission scheduled votes on proposed rules well before FCC notified the public. FCC rules prohibit disclosing this information outside of FCC. Other stakeholders said that they cannot learn when rules are scheduled for a vote until FCC releases the public meeting agenda, at which time FCC rules prohibit stakeholders from lobbying FCC. As a result, stakeholders with advance information about which rules are scheduled for a vote would know when it is most effective to lobby FCC, while stakeholders without this information would not.

When I commented upon this to a colleague, his response was typical: “What do you expect? And anyway, so what? What’s wrong with giving affected parties a bit more time to make their case?”

“What’s wrong” first is that the rules say otherwise.

“What’s wrong” second is that the rules are bent in a completely predictable way. Agency insiders curry favor with precisely the people they’ll be getting a job with after they leave the FCC.

And “what’s wrong” third is just what this indicates about the kinds of bending we might expect goes on inside the FCC. If the agency is willing to bend the rules to favor futures employers, are they willing to put the thumb on the scale in difficult contested policy determinations?

But my colleague was right about one thing: “What do [I] expect?” Here’s an agency chaired by a former lobbyist. Is it likely to be scrupulous about rules meant to constrain or balance the lobbying process?

This example is just one many that is our government. (As I’m learning as I work through the extraordinary reading list compiled by my Read-Write readers at the Lessig Wiki on Corruption. But it needs to become a bigger issue for the candidates in this election. Let’s hear a promise by the presidential candidates that they will only appoint FCC commissioners who promise not to work for those they have regulated for at least 5 years after their term is over. That would be real change.

  • Jardinero1

    A big part of the problem with the FCC is that it wears three hats simultaneously when it should wear only one. It is legislator, policeman and judge. What should be a mere executive agency tasked with insuring compliance has become a legislative and judicial body as well. I thought that the separation of powers was our most important bulwark against tyranny and corruption.

    Some of the more far-reaching rulemaking should be retured to Congress, where it belongs and where, theoretically, there is accountabilty during each election cycle. The FCC should be more restrained in its interpretation of the mandates handed down from congress and allow private individuals and entities to hash out the rules by common consent or, if not, by suing each other and the government when they can’t agree.

  • http://trevorstone.org/ Trevor Stone

    “What’s wrong” is that the public is a stakeholder, but we aren’t given equal opportunity for interaction with the decision makers.

  • Mark Murphy

    Or, as Rev. Jonathan Mayhew put it in 1750, “no taxation without representation”. Anyone who thinks the American populace has representation is sorely mistaken, given legislators’ emphasis on party, lobbying, and personal ideology over constituents’ collective opinion.

  • http://www.wbklaw.com Michael D. Sullivan

    >Here’s an agency chaired by a former lobbyist.

    You should get your facts right. FCC Chairman Martin is a former White House staffer, Bush campaign official, and FCC advisor. He was a law firm associate long ago. He’s never been what I would consider a lobbyist. From his bio:

    “Before joining the FCC, Martin was a Special Assistant to the President for Economic Policy. He served on the Bush-Cheney Transition Team and was Deputy General Counsel for the Bush campaign. Prior to joining the campaign, Martin was an advisor to FCC Commissioner Harold Furchtgott-Roth. He has also served in the Office of the Independent Counsel and worked as an associate at the Washington, DC law firm of Wiley, Rein & Fielding. Before joining Wiley, Rein & Fielding, Martin was a judicial clerk for U.S. District Court Judge William M. Hoeveler, Miami, FL.” http://www.fcc.gov/commissioners/martin/

  • http://werbach.com Kevin Werbach

    As a former FCC staffer, I can tell you that the issue is not the role of the agency, or the presence of former and future lobbyists. It’s the approach of the people running it. Things are very different today than under the previous three chairmen. They were far from perfect before, but never like this.

    I believe that Kevin Martin genuinely thinks he’s doing the right thing for the country, but that doesn’t excuse the degree to which open discourse and participation are being undermined. The GAO report is only the tip of it.

    Larry, your focus on “corruption” is the right approach, because it gets us to think about ethics and responsibility to the rule of law. But, at least in my experience, you’re wrong in attributing the corruption primarily to a desire for future personal gain. That certainly happens. Here, though, it’s more a pernicious philosophy that the ends justify the means.

    And it’s not just an issue of “following the rules.” Many problems today arise because we’ve imposed procedural band-aids, instead of confronting the deeper issues. Those procedures can have perverse consequences (as with the Sunshine Act), or the decision-makers can feel so hemmed in that they circumvent the entire democratic mechanism. I think that’s the genesis of the FCC issues the GAO report highlights — which I recognize doesn’t absolve those involved. We need to be less cynical about following the rules, but also less cynical about making them.

  • http://www.concurringopinions.com/archives/2007/10/gao_on_fcc_tram.html Frank Pasquale

    Kevin Werbach’s comments find support in this counterintuitive work on the unintended consequences of corruption control legislation:

    Frank Anechiarico and James B. Jacobs, The Pursuit of Absolute Integrity: How Corruption Control Makes Government Ineffective


    “In this comprehensive and controversial case study of anticorruption efforts, Frank Anechiarico and James B. Jacobs show how the proliferating regulations and oversight mechanisms designed to prevent or root out corruption seriously undermine our ability to govern. By constraining decision makers’ discretion, shaping priorities, and causing delays, corruption control—no less than corruption itself—has contributed to the contemporary crisis in public administration.”

  • HH

    Although the criticisms of the deteriorating ethics at the US SEC are important, isn’t there a larger issue of the long-term significance of national telecommunications regulators in a global Internet era? Can the Internet survive half censored and half free? How long before the people of the world bypass the crooked players and crippled nodes of the corporation and dictatorship-controlled communications “regulators?”

  • dan

    Commenting on this statement by your colleague: “What’s wrong with giving affected parties a bit more time to make their case?”

    The most affected party is the general public. The FCC was created to preserve the public interest. That means the general public has just as much, if not more, right to make its case than any of the “affected parties” your colleague referred to.

  • Ken

    Regarding whether he was a lobbyist or not…

    Isn’t the ‘Wiley’ in the partnership name a former FCC Chair? Also, isn’t the FCBA that his page refers to an association of lobbyist lawyers in the communications sector?

    The law firm happily quotes the following from the Legal Times, “… represents as perfect a merging of public policy and corporate America as exists in Washington.”

    In their practice areas, they mention significant work with the FCC and in representing trade associations against FCC regulations. Another partner is a former FCC Commissioner.

    Quoted from the National Law Journal, “The firm features the largest communications practice in the world.”

    I could go on for a long while but I’ll leave just one last quote from their site in the Government Affairs practice section, “From our inception, the firm has been successfully shaping public policy in Washington on behalf of our clients.”

    What distinction are you trying to make when you state he wasn’t a lobbyist? The one private firm that he has worked for presents itself as the number one communications lobbyist in the country.

    Of course, that isn’t the entirety of his career. He has moved between the FCC, the administration and a lobbying firm. I don’t see how his background would contradict any assertions of a lack of impartiality.

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