The OSHRC was established in 1971 as an adjudicative agency to resolve disputes over citations issued by the Occupational Safety and Health Administration. The commission is not part of the Labor Department and is wholly independent of it. The OSHRC has three members, each appointed to staggered six‐​years terms by the president and subject to confirmation by the Senate. It assigns administrative law judges to hear cases and, much like the certiorari procedure used by the U.S. Supreme Court, reviews their decisions on a discretionary basis.

Like any multimember adjudicative body, indeed like any appellate court, the OSHRC’s core functions have a meeting stage and an opinion‐​writing stage. During the latter stage, drafts of opinions are circulated and discussed, issues that previously did not loom large are more fully ventilated, and ways of writing the opinion so as to gather a majority or avoid dissents are explored. Broad holdings may be narrowed, statements may be qualified, reservations may be noted, and rationales may be sharpened or removed and others substituted. Even votes may change; dissents may become lead opinions and vice versa.

Pushing out commissioners / The Sunshine Act requires that each meeting of a quorum of members of a multimember agency be announced to the public in advance and that the public be permitted to attend. Agencies may vote to close meetings at which adjudication is to be performed, however, and the OSHRC does so as a matter of course. The problem is that the term “meeting” is so defined that each case‐​related visit, telephone call, and email between two commissioners triggers those requirements. As a 2013 study commissioned by the Administrative Conference of the United States (ACUS) found:

Should [agency members] wish to discuss the wording of … an opinion, as would an appellate court, the members have to notice, and vote to close, another “meeting.” … Obviously, this inefficiency is heightened in the case of … the OSHRC[,] where no two members can ever discuss agency business in private because they would constitute a quorum.

I was a staff attorney and the deputy general counsel of the OSHRC. As such, I often assisted in its deliberations, both before and after the Sunshine Act was passed in 1976. The result of the legislation on post‐​meeting deliberations was to push commissioners to the periphery. No longer could a commissioner visit or call another to discuss a case or draft opinion. Instead, staff counsels would be sent to do so. A former commissioner told me that the Sunshine Act thus erects an “obstacle” to deliberations and a current OSHRC employee believes that it “hamstrings a lot of agency operations and makes things difficult.” ACUS as far back as 1984 found that, because of the Sunshine Act, “the degree of collegiality in the multi‐​member agencies has diminished.”

But the effect is worse than that. The act undermines the very reason for having commissioners. To quote the Occupational Safety and Health Act, it is “the training, education, or experience” of the commissioners—not their staff—that justifies their nomination by the president and confirmation by the Senate. It is their names that appear on OSHRC decisions. It is they who must answer to the president for the conduct of their office. It is therefore they—not staff—who should be most directly involved in the post‐​meeting deliberative process, not pushed to the margins.

Journalist pushback / There is an easy fix for this problem. The 2013 ACUS‐​commissioned report recommended that the Sunshine Act be amended “to make clear that when an agency properly closes a meeting [as adjudicative], any subsequent meeting to discuss the same matter need not be subject to the notice and closure procedures under the Act.” But no such amendment has been made. It seems that pressure from one interest group is responsible for this: journalists. ACUS in 1997 noted that “representatives of several major press‐​related organizations” did not dispute that “agency members are generally reluctant to have substantive discussions in public meetings.” The representatives argued, however, that “such public officials should change their behavior and admonished them to do so.”

Arguing that human nature should change is an argument for paralysis, and so it has proved. Appellate judges deal with complex legal issues and with sensitive factual questions. They decide who should be publicly announced to have violated the law and penalized. Their decisions can set precedents for the entire nation. To ensure care is taken, they naturally feel a need for privacy so that they can speak freely. And so the law allows them to do so during agency meetings, with little if any complaint from the press. Admonishing them to feel differently about their need for privacy during post‐​meeting discussions is as vain as demanding that they hold back the wind.

But in the arena of public policy, journalists speak with a megaphone. Inasmuch as they apparently fear any re‐​opening of the statute, the Sunshine Act has never been substantively amended, not even to adopt the 2013 recommendation to exempt post‐​meeting adjudicative discussions. That a single interest group can block such a sensible and narrow amendment for such a weak reason shows yet again the wisdom of Congress in inserting sunset provisions into laws. Our government is now too complex for Congress to trust that it has drafted a law that would apply well in every detail. As the OSHRC’s experience under the Sunshine Act shows, errors in foresight—in drafting—are inevitable. If a statute were given an expiration date, the dynamic opposing change would be reversed and, when the statute comes up for extension, refining amendments could not be blocked easily. Interest groups who favor extension would have an incentive to compromise and settle on a refined statute that all could support. They would not be so bold as to demand that human nature be bent to their wishes.