My experiences during three key periods at the CPSC shed light on the causes and effects of this partisanship. The first period happened immediately after a sweeping reform law passed, when there were two sitting commissioners; the second, after the president filled all five seats on the commission; and the third, when one commissioner’s departure left the CPSC equally divided again. During the first period, commissioners cooperated and accomplished many big tasks. During the second period, when the commission was split 3–2 along party lines, controversy was common and key policies were determined with little regard to minority concerns. During the third period, cooperation again occurred, but it was not very deep and did not extend to truly controversial issues. And rather than resolve those controversial issues, they were put off until a partisan majority returned in October of this year.
The political and personal disagreements are the inevitable result of partisan multi-member commissions. But with good data and analysis, a single administrator can make decisions as good as or better than a commission, while avoiding the perils of partisanship. Drawing on the lessons of these experiences, I make a modest proposal: replace the five-member CPSC with a single administrator.
Two commissioners | The CPSC is an independent regulatory agency that was created 40 years ago during the Nixon administration to regulate unsafe consumer products. Originally, it had five members. But in the early 1980s, to save money, two commission spots were effectively wiped out by not appropriating money for them. The arrangement, effectively blessed by Congress, continued through the Clinton and both Bush administrations.
In 2006, a vacancy arose on the three-seat commission. That left only two commissioners—a Democrat and me, a Republican—whose views often diverged. Then, in 2008, Congress passed legislation that immensely increased our authority but also our obligations, directing us to issue many regulations on an impossibly short timeline while giving us no new resources to accomplish the tasks.
Facing a long to-do list with only two commissioners, the options were for us to disagree and let the agency’s work slow or stop, or to figure out where we could agree and implement the new law (while continuing our usual work as much as possible). I am pleased that my colleague and I took the latter approach. Even with our differences, we were able to find middle ground and get the job done. Frankly, we had to. No other course was open to us as responsible commissioners, and we both knew that. We put out over 25 rules and other significant regulatory actions in nine months. Considering the agency’s typical pace, that was extraordinary.
Five commissioners | Contrast that to the period after the Obama administration arrived, when the president and Congress filled all of the open seats, including the two that had been reauthorized in recent legislation. This created a commission with five commissioners: three Democrats and two Republicans.
The result is unsurprising. Important policy issues routinely were decided on a 3–2 vote. Effectively, the three Democrats would determine policy and then announce it to the Republicans. We did have conversations, and sometimes the minority even won a point or two. But these wins generally were on side issues, not central policies.
A well-informed administrator with sole accountability for decisions is a better way to achieve underlying policy goals, rather than hoping for clearheaded bipartisanship.
We in the minority did not sit idly by. Watching the majority use the agency’s extensive communications tools to trumpet flawed policies, we went public with our concerns about the disputed decisions. On top of the traditional commissioners’ statements attached to votes on rules and policies, I created a blog, nancynord.net, and began regularly posting my positions and rationales. My Republican colleague, Anne Northup, did the same. In our written statements, blog posts, tweets, and comments at public meetings, we have each been critical of the majority’s decisions and the process leading to them.
Was this excessive partisanship by the majority or the minority? No; it was the result of elections, which have consequences. Presidents put their people into positions of power, and those appointees perform their duties according to their own understandings of their duties. On a commission with a required partisan split, disagreements about the way to perform duties are bound to come up.
Four commissioners | After the departure of a Democratic commissioner in the fall of 2011, things changed yet again. Some policy decisions were made unanimously. Though the process of achieving unanimity was long and often tedious, the results were generally reasonable. Consensus on important issues gives the public more confidence in those decisions. It is true that we seemed to be working together because we had to, just as was the case in 2006–2009 when there were two commissioners. So if we are going to have a commission, making it equally divided appears to make members work together. But is that the answer?
Look underneath the cooperation and you will find that the consensus on many of these issues was thin and truly contentious issues were generally put off. In one recent instance, the commission appeared to agree unanimously on a modest set of improvements to a very divisive rule, but the agreement only extended to considering improvements and doing so at some uncertain future date. In another instance, the commission simply deadlocked 2–2, then later, under a new 2–1 Democratic majority, dusted off its failed proposal with no effort to address the concerns that had caused the deadlock. A quick turnaround from agreement to disagreement demonstrates that the consensus was not only the offspring of circumstance, but a rather sickly one at that.
Instead of hoping for clearheaded bipartisanship (or nonpartisanship), I suggest that we re-examine the decision to put a multi-member body in charge of the CPSC. A well-informed single administrator with sole accountability for decisions, I have come to believe, is a better way to achieve underlying policy goals. Since decisions under the current structure are no less subject to political forces than they would be with a single administrator, we would lose no political independence, just a lot of political shouting.
Independence and reasoned analysis | The justification for these multi-member bodies is that they are independent because they have members from different political parties and backgrounds who serve staggered terms that bridge elections. But my experience at the CPSC indicates that commissioners’ independence is more hope than reality. In non-unanimous votes, crossing party lines is rare. Only rarely during my tenure has it happened in a sharply contested matter, and in one instance the commissioner who joined the opposite party recanted that vote, citing a change of heart that came only after a concerted effort by forces outside the CPSC to change the result.
The occasions when independent agencies claim their prerogatives the most vigorously are, however, instructive. In response to presidential initiatives in the form of executive orders, agencies carefully deny any obligation to comply, but they say they will voluntarily cooperate. This had been the standard practice at the CPSC, but a more dismissive tone seems to be emerging. When President Obama issued Executive Order 13579 last year, it was met not with the CPSC’s typical obliging spirit, but with words of cooperation and actions of disregard.
Crucially, that order proposes using an important tool that a majority of commissioners have declined to use unless specifically required to do so by statute: cost-benefit analysis. This analysis has become increasingly important and accepted in the last four decades, embraced by Republican and Democratic administrations alike for its help in ensuring that regulations are effective but minimally burdensome. But for many of the CPSC’s key recent regulations, no cost-benefit analysis was done. The majority essentially concluded that cost-benefit analysis was too onerous and time-consuming. They further pointed to the absence of a requirement to perform it (for certain rules) as an argument against doing it. Thus, when the CPSC approved two rules in the last two years with economic effects well over the $100 million legal threshold for “major rules,” it performed no cost-benefit analysis. They were only the second and third major rules in the history of the agency, but the majority refused to analyse their costs and benefits, and the results are significant rules with significant flaws.
A single administrator | If independent agencies were required to do cost-benefit analysis, compare the various regulatory options, and better justify their regulatory decisions with science and economics, would we need multi-member bodies like the CPSC? The hoped-for independence of commissioners seems unnecessary when considering other factors that contribute to modern rulemaking. First, good data and analysis—economic and scientific—should guide reasoned decisionmakers. Second, thorough review and analysis by the White House Office of Information and Regulatory Affairs can ensure that a rule fits within the larger federal regulatory program. Third, effective public notice and comment should help an agency appreciate the likely consequences of its rules and correct missteps before they happen. If all these processes are followed in developing a rule, then a decisionmaker will have the information needed to analyze and make an appropriate decision. If these procedures are followed, the single decisionmaker is likely to make a good decision without the personal and political wrangling common on a committee.
Granted, a single decisionmaker could make the wrong decision. That is what judicial review is for. But when a single decisionmaker stumbles, he or she can be held accountable. By contrast, on a multi-member commission, a good rule will have many fathers, while a bad one is always an orphan.
Let me close by quoting the first chairman of the CPSC, Richard Simpson, who also identified this problem: “[I]f you must manage and make decisions by committee, then the committee should have an odd number of members, and three is too many.” I did not agree with Dick on many things, but on that one I’ve come around.
