A Reflection on the Independence of Independent Agencies

Abstract

Independent agencies should not be independent. I believe that for policy as well as for constitutional reasons. When I was Chairman of the Federal Trade Commission (FTC), I often posed to myself the following question: To whom am I accountable? Often, it seemed, the answer would be: To 435 Congressmen, 100 Senators, and the President himselfl On many occasions, however, the answer would be: As long as I apply a modicum of discretion, I am accountable to one. This answer, I submit, is evidence of a major institutional defect, for it means that at least one official, with rather broad latitude for public good or public harm, occasionally did not feel accountable. Such a situation would be far less likely if the official in question had been more closely supervised by the President and his assigns. In addition to insufficient accountability, there are other policy reasons why I believe the of independent agencies is a bad idea. Consider the problem of policy coordination. In the area of antitrust, for example, there is a compelling need for the FTC to coordinate its policies with those of the Antitrust Division of the Department of Justice. While a considerable amount of such coordination does go on, the Commission has been reluctant to get involved in certain pertinent, though higher-level, executive branch policy activities. (I remember well the objections raised by Pennsylvania Senator Arlen Specter to the FTC's representation on a White House working group coordinating commercial policy.) A related shortcoming of independence is that independent agencies have no place at the table when it comes to formulating policies that directly affect the agency. It is difficult enough for non-cabinet executive agencies to feel fully informed and to be represented in the highest levels of government decisionmaking. But the independent agencies have