Politico has an article earlier this week (titled “Recovery law allows Fed to rope off public as it spends billions“) that brought to my attention a section of the recently enacted Coronavirus Aid, Relief, and Economic Security Act: Section 4009 allows the Federal Reserve Board to conduct meetings through December 31, 2020 without regard to 5 U.S.C. §552b, the open meetings provision of the Government in the Sunshine Act. This provision is designed to require multimember agencies to have their meetings in public. The suspension of the Government in the Sunshine Act has provoked some very negative reactions.
By contrast, I think the suspension is a great idea. My only complaint is that §552b wasn’t repealed in its entirety for all agencies. And though it is fun to be contrarian, on this I am in the mainstream among administrative lawyers and professors. My sense is that there is greater support for repeal of the open meetings provision among administrative lawyers and law professors than for most any other issue in administrative law. And I have yet to meet a current or former member of a multimember agency – of any political stripe – who thinks the open meeting rules are a good idea. As one of them put it to me privately, the Government in the Sunshine Act should be called the Government in the Shadows Act. Allow me to explain.
Section 552b requires that all meetings among members of multimember agencies be held in public and with at least seven days advance public notice. (The “members” are commissioners, board members, etc. – the Senate-confirmed people who collectively run the multimember agency.) “Meeting” is defined as deliberations among a quorum of the members “where such deliberations determine or result in the joint conduct or disposition of official agency business.”
I have no reason to doubt the good intentions of those who sponsored the Sunshine Act. But the road to hell is paved with good intentions. The Sunshine Act may increase public confidence, but any such increase comes at a significant cost. The origin of the problem is that a conversation about agency matters among a majority of members might lead to enough agreement among them to constitute a “meeting” under the statute – or at least come close enough to constituting a “meeting” that it might engender litigation. So general counsels play it safe by telling their members not to discuss agency business if a majority of them are together. On a five-member board or commission (the most common size), two of them can discuss agency matters, but when a third shows up they have to switch to baseball (unless, of course, they are regulating baseball).
The result is that the members of the agencies don’t really deliberate together. The public imagines that the members are a deliberative body, but they aren’t deliberating with each other beyond one-on-one conversations. The members collectively “deliberate” via their staffs (who can talk with each other, because they aren’t “members” subject to the strictures of the Sunshine Act): a member communicates with one of her staff, who then communicates with the staffers of the other members, each of whom then communicates with the member for whom they work, who then give instructions to their staffer, who then goes back to the other staffers, and on and on. If that sounds cumbersome, empowering of staff, and discouraging of discussions among members, that’s because it is. I have seen it in action at the FCC. As a report from the Administrative Conference of the United States from the mid-1980s noted, under the Sunshine Act “the focus of decisionmaking activity has shifted toward the offices of individual members and to the staff level.” Or, as Jim Rossi stated in Participation Run Amok: The Costs of Mass Participation for Deliberative Agency Decisionmaking, “The Sunshine Act inadvertently transforms multiheaded agencies into entities which tend to function as if headed by a number of individual, independently-acting members.” I don’t think I can improve on the following language from a letter submitted by a bipartisan group of present and former commissioners (not online, alas, but you can find the parts quoted below via the magic of Google books if you search for “Steven Wallman Thomasina Rogers” and go to page 286):
We believe the [Sunshine] Act may significantly impede the ability of agency members to confer in private and reduce the willingness and ability of such members to deliberate in a full and appropriate manner. Notwithstanding the overriding goal of openness underlying the Act, we note that private discussions among agency members help promote collegiality which, in turn, improves regulatory decision making. Under the Act, however, discussions among members that do not fall within one of the exemptions under the Act must be held in the public light. This has a chilling effect on the willingness and ability of agency members to engage in an open and creative discussion of issues. As a result, members are often isolated from one another, forced to deliberate, at best, one-on-one or rely heavily on staff to communicate their concerns to other members. In almost all cases, agency members operating under the Act come to a conclusion about a matter before an open meeting, and, therefore, without the benefit of any collective deliberations. This is directly in conflict with the free exchange of views that we believe is necessary to enable an agency member to fulfill adequately his or her delegated duties, and to be held accountable for his or her actions.
We are also of the view that the Act is at odds with the underlying principles of multi-headed agencies. These agencies were created to provide a number of benefits, including collegial decision making where the collective thought process of a number of tenured, independent appointees would be better than one. Unfortunately, the Act often turns that goal on its head, resulting in greater miscommunication and poorer decision making by precluding, as a matter of fact, the members from engaging in decision making in a collegial way. As a result, the Act inadvertently transforms multi-headed agencies into bodies headed by a number of individually acting members. It seems incongruous and unlikely that Congress, had it known that this would be the effect of the Act, would have decided to create agencies that would benefit from the collective decision making of a multimember body, and then enact a provision such as the Act that has the effect of limiting collegial decision making.
There are other, related arguments against the Sunshine Act (e.g., that it makes it hard for the members to craft an agenda, that their public meetings aren’t actual discussions but instead the presentation of what they have previously decided on their own without the benefit of collective deliberation, etc.). But this blog post is already long enough, and I think I have made the basic point.
I like sunshine (literal and metaphorical). I strongly favor requiring the Federal Reserve Board and the Treasury Department to inform the public of all its disbursements, loans, etc. under the Coronavirus Recovery Act within days of those decisions occurring. I see much benefit and little cost to releasing that information. But the calculus on the open meeting provision is different.
Suspending the “Government in the Sunshine Act” has about the same optics as suspending the “Motherhood and Apple Pie Act.” But this is a suspension that we should cheer. If only it permanently applied to all agencies.