In Trump v. Slaughter, the Supreme Court is now considering whether or not to reverse the 90-year-old precedent that allows Congress to create independent commissions by forbidding the president from firing a sitting commissioner at will. The specific case involves Trump firing the two Democrats on the Federal Trade Commission. This has prompted some to ask: “who cares about minority commissioners? Won’t they just get outvoted? Why is this a big deal?”
Mind you, the same question could be “why a commission in the first place? Won’t the commissioners of the same party vote together?” Which raises the first point, this isn’t just about minority commissioners. As the Supreme Court observed back when it was less sold on the “Imperial Presidency,” commissioners cannot make independent decisions with the “Damocles’ sword of removal” hanging over their heads. Also, as anyone who remembers the first several years of the Biden Administration will recall, an independent agency (in this case, the Federal Communications Commission) can get stuck with an equal number of members of both parties – creating a deadlock on important issues. So assuming we like independent commissions for certain things (a topic for another time), the question in Trump v. Slaughter is important for its own sake.
But let’s consider the way an independent commission is supposed to work rather than the broader question of independence generally or the specific case where the president’s party doesn’t have a majority. Why do minority commissioners matter? Won’t they just get outvoted?
Independent Commissioners Used to Actually Be Independent – and May Be Again Someday.
As always, people who don’t follow this for a living assume that the way it is today is the way it’s always been. Commissioners of the same party vote in lockstep, so the chair automatically gets a majority. But this wasn’t always the case. Until relatively recently, you saw members of the chairman’s party refusing to support an item or demanding significant changes. As this usually happens behind the scenes, it doesn’t get much attention from outsiders. But this can only happen when commissioners have security to tell the chair “no” without worrying about being fired.
But this independence also created a world where a member of the chair’s party would dissent, but the chair could build a majority by reaching across the aisle. When I started back during the late Clinton Administration and Bill Kennard was chair, we saw this quite frequently. You would have Chairman Kennard get a majority with Commissioner Susan Ness (D) and then-Commissioner (later Chairman) Michael Powell, while the more liberal Commissioner Gloria Tristani (D) and more conservative Commissioner Harold Furchgot-Roth would dissent (either in whole or in part). Some years later, I would see Chairman Kevin Martin team with Democrats Michael Copps and Jonathon Adelstein to vote out the first net neutrality order.
More commonly, commission chairs found value in bipartisan votes and the increased legitimacy of a bipartisan opinion. After all, a bipartisan opinion is easier to defend before a congressional oversight hearing (especially when the party that controls the Senate or the House is not the one that controls the White House and therefore the commission majority). And while courts don’t explicitly say they respect a unanimous, or at least bipartisan, decision more than a party-line vote, there seems to be some validity to the assumption (see more below on the role of dissenting commissioners). This allowed minority commissioners to trade a vote in exchange for modifications or concessions. Even if one minority commissioner couldn’t support an item, you could get changes to produce a 4-1 vote. And in a world where precedent is important and precision matters, even things that seem trivial at the time can be vitally important in the long run.
But let’s set aside the idea of a golden age of genuine independence and take our worst case scenario of today. You have a chairman vetted to support the president no matter what, and other commissioners of the same party who will always vote with the chairman and obey the chairman’s commands. Why, then, does a minority commissioner matter?
What Minority Commissioners Actually Do?
I want to work backward from the most obvious to the less obvious.
What do minority commissioners actually contribute? If you’ve never paid attention to how these agencies work, you might think minority commissioners are just along for the ride, casting futile dissenting votes as the majority does what it wants.
But that misses much of what is important about how these agencies function. The agencies must vote (and get a majority vote) and explain their actions in an opinion. A dissent can have real power. Sometimes it is a moral statement that highlights (at least in the opposing view) what makes the order not simply wrong, but bad. Additionally, dissents often raise legal arguments and facts in the record that contradict the story the majority wishes to tell. This last is particularly important because the Administrative Procedure Act (APA) requires an agency decision to address all issues raised in record. Failure to do so means the court will reverse the majority decision as arbitrary and capricious.
A well-written dissent, therefore, serves multiple purposes. It highlights legal flaws, or facts the majority would prefer to ignore, forcing the majority to either modify the opinion or justify its reasoning in ways that create accountability to the public, Congress, and the courts. Sometimes the strength of these arguments can force the majority to modify its decision. But at the least, a minority opinion provides an important counter-narrative. This points out another function of a dissenting opinion – dissents as policy development for the future. When a minority commissioner writes a dissent, they’re creating a potential roadmap for opponents to develop and pursue when political control shifts. As we have seen a number of times in the last year, today’s dissent can become tomorrow’s majority position.
Oversight and accountability: Minority commissioners do more than write dissents. They ask hard questions at agency Open Meetings, questions the majority prefers to avoid. They issue public statements challenging the majority’s version of events. They have the right to demand information and analysis from agency staff, which they can then use to inform the public or members of Congress. They can sound the alarm and verify to the public when the majority is overreaching or when the reasoning falls apart. All of this creates a record that matters: for judicial review, for congressional oversight, and for public accountability. A minority commissioner can shine a spotlight on things the majority might prefer to pass unnoticed, and keep demanding action on matters that the majority would prefer to have forgotten. At a congressional oversight hearing, a minority commissioner can provide answers on the record that contradict the narrative of majority commissioners.
Stakeholder engagement: Regulated parties and public interest groups don’t always agree with whoever’s currently in charge. Minority commissioners provide an alternative point of contact. This allows diverse viewpoints (like public interest advocates!) to get heard within the agency. The minority commissioner can act as an advocate within the agency as well as providing a sympathetic audience for meetings.
But minority commissioners often take a more active role in stakeholder engagement – especially on controversial matters. Minority commissioners are often speakers at events, where they can express their views and urge stakeholders to participate in agency processes. This can create a powerful record and build political pressure. For example, FCC Commissioner Gomez has been a tireless advocate for the First Amendment, going on a “First Amendment Tour” to help mobilize public opinion against weaponizing the FCC’s power over broadcasters to silence critics. This is especially important outside of Washington D.C., where a public event or hearing by an FCC commissioner can be a very big deal, attracting hundreds of participants and making local news. In the past, minority commissioners have used outside events to mobilize the public to resist media consolidation, support net neutrality, and highlight the lack of broadband or even basic telephone service in rural areas.
How Minority Commissioners Make Agencies Work Better
I’ve focused so far on direct opposition by minority commissioners to the agenda of the chairman with a majority. But while these head-to-head clashes get the bulk of public attention, most work of independent commissions is more technical and less ideological. Certainly there are often differences in approach among commissioners. But in these cases the presence of minority commissioners actually makes agencies function better through collaboration.
Participation in non-ideological work: Most agency work has no ideological valence at all. Technical rulemakings, routine enforcement actions, spectrum allocations, and lots more: a huge amount of this work proceeds with bipartisan agreement. Minority commissioners often contribute substantively to this work. Even if there aren’t strong ideological issues, minority commissioners often bring different approaches and different concerns based on their life experiences. Their expertise doesn’t disappear just because they’re outnumbered on some high-profile votes, and smart chairs know how to keep a good working relationship with their minority party colleagues.
Rather than a point of conflict, this difference in perspective makes the agency work better. Commissioners from different political parties often come from different backgrounds and may relate differently to different constituencies. Minority commissioners may feel more free to raise potentially controversial points with the chair, since they are not expected to be “loyal soldiers” for the chair’s agenda.
Moderating influence. Often, the differing perspectives of independent minority commissioners can also have a moderating influence on the commission’s decision-making. Again, it is important to keep in mind that the last few years where political parties seek to emphasize their differences are the exception. But even in the extreme case, having members of the opposing party in the room with whom one must deal on a regular basis on nonpartisan issues can temper the rhetoric and move the majority to a less extreme view.
Institutional continuity. Staggered terms mean some commissioners carry over between administrations. When the minority becomes the majority, they already know the issues, the staff, and the pending matters. This institutional knowledge persists across transitions. That persistence is impossible if every administration starts from scratch. And bipartisan decisions are harder to reverse, so the minority’s participation in building consensus creates policy stability that serves everyone.
Democratic legitimacy. In our polarized era, roughly half the country is going to disagree with whoever holds the White House. The bipartisan commission structure guarantees that roughly half the country has representation in agency decision-making, including when they’re in the minority. This allows people to feel like the agency has institutional legitimacy, even when they may disagree with its specific decisions.
We Reserve Independence for When It Matters.
Finally, it’s worth noting that independent commissions are fairly rare. Generally, Congress lets presidents select their own teams – subject to the need for confirmation. Traditionally, Congress reserves creation of an independent commission for matters that require some insulation from the president because they are highly technical, have outsized influence on the economy, or are particularly essential to democracy. The first independent commission was the Interstate Commerce Commission, created in 1887. The ICC regulated the most important industry of the time – the railroad. Other examples include the Federal Trade Commission (which potentially regulates most of the economy), the National Labor Relations Board (because the relationship between organized labor and capital is potentially subject to political meddling as well as having impact on the economy), and the Securities and Exchange Commission (responsible for ensuring capital markets work with fairness and transparency, and therefore a prime target for cronyism and political meddling with enormous influence on the economy).
Nothing illustrates this better than the story of the creation of the Federal Radio Commission in the 1920s. Before the Federal Radio Act of 1927, radio licenses were handled by the Department of Commerce. The legislative history shows why, when Congress decided it needed to seriously consider the regulation of radio, it rejected that approach and chose to create an independent, bipartisan commission.
By the mid-1920s, radio had exploded from a tool for ship-to-shore communication into a mass medium transforming American culture. The existing regulatory framework gave the Secretary of Commerce only ministerial duties. It was completely inadequate, and Congress needed to act. But when it considered simply expanding the Secretary’s authority, it ran into fierce opposition.
Representative Johnson of Texas captured the stakes perfectly when he told his colleagues:
There is no agency so fraught with possibilities for service of good or evil to the American people as the radio. As a means of entertainment, education, information and communication it has limitless possibilities. The power of the press will not be comparable to that of broadcasting stations when the industry is fully developed. If the development continues in the future as in the past, it will only be a few years before these broadcasting stations, if operated by chain stations, will reach an audience of over half of our entire citizenship, and bring messages to the fireside of nearly every American home. They can mold and crystalize sentiment as no agency in the past has been able to do.
[69 Cong. Rec. 5558 (Mar. 13, 1926)].
In 1926, members of Congress understood that whoever controlled the airwaves could “mold and crystalize sentiment as no agency in the past has been able to do.” The question was whether that power should sit with a political appointee serving at the president’s pleasure. They said no.
Even Herbert Hoover agreed. Hoover was then Secretary of Commerce, the very official who stood to gain power under the alternative approach. As he testified to Congress: “I have always taken the position that unlimited authority to control the granting of radio privileges was too great a power to be placed in the hands of any one administrative officer.” [H.R. Rep. No. 69-464, at 19 (1926)]. He elaborated: “We cannot allow any single person or group to place themselves in a position where they can censor the material which shall be broadcast to the public.” [69 Cong. Rec. 5484 (Mar. 12, 1926)].
The House of Representatives initially passed a compromise that gave initial authority to the Secretary of Commerce, with oversight from an independent commission. But the Senate rejected even this half-measure. Senator Clarence Dill, Chairman of the Senate Commerce Committee, explained in the Senate Report: “The exercise of this power is fraught with such great possibilities that it should not be entrusted to any one man nor to any administrative department of the Government.” [S. Rep. No. 69-772, at 2 (1926)].
The Senate won that fight. The Federal Radio Act of 1927 created a fully independent commission with bipartisan membership, which evolved into the FCC we know today. And as we have seen over the past few months, the Senate was right. We have a president eager to use the FCC’s authority over broadcasters to shape news coverage and prevent comedians from mocking the President. The presence of Democratic Commissioner Anna Gomez has made it much more difficult for FCC Chairman Brendan Carr to advance this agenda. At every available occasion, Commissioner Gomez has sounded the alarm and created a counter-narrative to efforts to weaponize the FCC.
By contrast, there is no such opposing voice at the Federal Trade Commission. Chairman Andrew Ferguson and Commissioner Mark Meadows have been free to engage in conduct such as harassing watchdog organizations such as Media Matters who have publicly criticized the President and his allies, allowed mergers to proceed with conditions designed to favor conservative viewpoints, and to hold hearings on whether gender affirming care somehow violates the law. Without a dissenting voice such as that of Commissioner Slaughter to constantly call attention to these actions, they fly under the radar.
Conclusion: Minority Commissioners Matter.
The independence of commissions matters for its own sake. Ideally, even the majority commissioners act with freedom on important issues. But even in times such as these, when majorities work in lockstep and the chairman looks to the president for directions, the presence of independent minority commissioners makes a difference. At a minimum, minority commissioners shine a spotlight on the actions of the majority. But equally importantly, minority commissioners play an important role in the day-to-day operations of important regulatory bodies. As the last few months have shown, the FTC performs more poorly without representation of the other political party, while the FCC performs better with a minority commissioner.