On the eve of independence, John Adams famously argued that ours should be “a government of laws and not of men.” This warning should echo even more loudly through our current era, when the administrative state has eroded many of the structural safeguards designed to protect the rule of law. Strict judicial enforcement of the separation of powers and nondelegation has yielded to our faith in expert agencies to make important governance decisions. This tradeoff may be, in the Supreme Court’s words, a necessary concession to an “increasingly complex society.” But it highlights the importance of internal safeguards designed to preserve the rule of law within our agencies.
For this reason, process reform is an important piece of Ajit Pai’s legacy as chairman of the Federal Communications Commission. Upon assuming the chairmanship, Pai expressly named process reform as a key part of his strategic vision. He followed through on that commitment over the next four years, making much-needed improvements to enhance transparency, accountability, and robust, data-driven decisionmaking – and in the process strengthening the rule of law within an agency that seemed to have fallen into dysfunction.
On the transparency front, these initiatives included a commitment to release draft orders to the public at the same time they are circulated internally – a welcome change that reduced the power of the chairman and special interests to manipulate the media cycle during the period before FCC votes on important items. Improvements in accountability included limiting the power of agency staff to make substantive edits to agency orders and to settle certain investigations without Commissioner approval. These changes helped shift power away from the permanent bureaucracy and to the more politically accountable agency heads. And Chairman Pai’s commitment to data-driven decisionmaking is reflected in the creation of the Office of Economics and Analytics, which helped concentrate the FCC’s economics talent and integrate it more systemically into the agency’s operations.
As a result of these and other reforms, the Commission is stronger than it was four years ago. But there remains work to be done. One hopes that President Biden will select a successor equally committed to rule of law principles.
Daniel A. Lyons. "FCC Process Reforms Protect the Rule of Law." Perspectives from FSF Scholars 16, no.18 (2021).