Benjamin L. Cavataro (Wayne State University Law School) and Todd Phillips (Klaros Group) have posted Associate Commissioners (Journal of Law and Politics, forthcoming) on SSRN. Here is the abstract:
Multimember regulatory commissions—including the Federal Trade Commission, Nuclear Regulatory Commission, Consumer Product Safety Commission, and Federal Reserve Board of Governors—have long been mainstays of federal administration. Yet both before and after Trump v. Slaughter (2026), in which the Supreme Court overturned Humphrey’s Executor (1935), research has focused on these bodies as institutions or on their chairs, largely neglecting the associate commissioners who make up most of their membership.
We present semi-structured interviews with twenty-four current and former officials across fifteen federal multimember agencies who served between the 1990s and 2025. We confirm that most commissions have strong chairs, whose control over agency agendas and career staff frequently gives them decisive influence over regulatory outcomes. Genuinely equal-commissioner arrangements are rare. But associate commissioners, even in chair-dominated commissions and even from the minority party, are often far from passive. They wield influence through negotiations, delegations, separate statements, and pre-commitment instruments, such as strategic plans and budget proposals. Although their effectiveness depends on access to timely information and the chair’s management style, associate commissioners play a real role in governance. Moreover, notwithstanding deep skepticism in prior scholarship and in Slaughter, most interviewees from both parties perceived their commissions as genuinely independent. The vast majority of interviewees believed that overturning Humphrey’s Executor would rupture commission governance and impair agency performance.
Our findings are particularly significant after Slaughter. They provide an account of independent commission governance from what may be the last generation to engage in it. They undercut claims that such agencies were never truly independent; that bipartisan commissions are inherently dysfunctional; and that associate commissioners play little meaningful role. And they suggest paths for Congress and agencies to preserve some benefits of the commission form, despite Slaughter’s devastating blow to agency independence. To make remaining structural features, such as partisan-balance and quorum requirements, effective, we recommend policy reforms to empower associate commissioners. These include reducing information asymmetries between chairs and their colleagues, reforming the Sunshine Act, and developing onboarding programs tailored to the distinctive demands of the associate-commissioner role. Such steps might avert Justice Sotomayor’s fear that commissions will fall under “absolute partisan control.”
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