Benjamin L. Cavataro (Wayne State University Law School) and Patrick Gauding (University of the South) have posted Intra-Agency Polarization and Agency Independence’s Fate, Northeastern University Law Review (forthcoming), on SSRN. Here is the abstract:
As the Supreme Court seems poised to overturn Humphrey’s Executor, independent multimember agencies, a staple of federal regulation for more than a century, face existential threats. Using a new dataset of more than 3,000 votes cast from 1985 to 2024 at the U.S. Consumer Product Safety Commission (CPSC), this Article empirically shows how behavior at an independent, bipartisan commission reflects partisan polarization. Our findings provide a window into the operations of an independent agency—and, in doing so, offer clues for what might change in a post-Humphrey’s world. We find that intra-agency polarization has increased over the past two decades. Between 2008 and 2024, unanimous votes at CPSC plummeted, while votes purely along party lines rose from 7.7% to 13.3% of votes. Partisan voting patterns are more pronounced on key decisions, such as rulemakings, investigations and enforcement actions, and public disclosures of critical safety information. Party control of the Commission majority, congressional polarization, and the proportion of former congressional staff on the Commission all relate to levels of intra-commission partisanship. The Commission chair is in the majority for the vast proportion of Commission votes. Moreover, periods of partisan alignment between the chair and the president are associated with a decreased probability of party-line votes. Taken together, this data adds to the evidence that independent agencies (i) increasingly feature partisan-tinged battles; (ii) echo polarization within Congress, although not necessarily to the same extent; and (iii) are dominated by chairs, especially when the chair enjoys a partisan majority on the agency. We also suggest that vote data alone might understate the true degree of polarization, due to factors such as staff filtering, the chair’s exercise of staff-supervision and agenda-setting power, and contentious items never reaching a formal vote. We term this phenomenon “submerged partisanship.” Rising intra-agency partisan polarization may cause independent agencies to be less “independent” and functional than intended. If the Supreme Court overturns Humphrey’s, and allows presidents to unilaterally dismiss commissioners, remaining features of agency design (such as partisan-balance and quorum requirements) may prove increasingly fragile mechanisms of agency independence. We offer several alternatives to promote deliberation and constrain presidential power even in a post-Humphrey’s universe.
Highly recommended.