[EL] Colbert and the Commission

[Smith, Brad]

Today the Commission had before two drafts from the Counsel's office on the Colbert request (which, personally, I would probably have denied as not a serious request). This has led to another round of regretable speculation about factionalism dictating various approaches at the Commission. 
 
A few words about the Commission, based on my experience, which admittedly is now 6 years in the past:
 
The practice of the GC's office producing alternative drafts began during the time that I served on the Commission, under then General Counsel Larry Norton, who was a consummate public servant without an agenda beyond serving the law, the public, and the Commission. It was and remains an informal practice, not a policy of any kind, with no rules for when it will be done. As a general matter, however, the Counsel has done this when it either sees the matter as one entirely of policy discretion; when it has reason to believe that differing commissioners may hold dramatically opposed views; when it believes that the Commission has reason to reconsider the "precedent" of past Advisory Opinions; or when it believes that laying out two (or on rare occasions even three) approaches to the matter can help the Commissioners understand all sides of the issue or better reach a consensus. While there are times - especially in the second scenario outlined above - that one or more drafts may reflect requests from particular Commissioners, that is typically not the case. That is to say, the Counsel's drafts are the Counsel's drafts and should not be presumed to be "coming" from any particular commissioner or block of commissioners. Nor should they be seen as efforts to curry favor with particular commissioners.
 
One reason that the practice began was to avoid the awkward situation of placing the Counsel's office in apparent public opposition to a majority of the Commission, which was often picked up by various reform groups for the rhetorical talking point that the Commission was "ignoring the recommendation of its professional staff" or worse, "ignoring the law," when in fact the Counsel understood the issue to be one of policy discretion for the Commission (that a guileless press did, and still does, frequently pick up on this line never helped). Additionally, the Counsel's office sought to avoid being perceived as being on one "side" or the other when it perceived that Commissioners might have legitimate disagreements on policy.  While the Commission has had several GCs since Mr. Norton left, the practice has continued, even expanded, but nothing suggests to me that the basic approach has changed. Certainly, the GC and that office so advises commissioners when it believes that the law dictates or clearly favors a particular result.
 
Historically, and from my observation and contacts I have no reason to believe that this is no longer true, the Commission is probably one of the more open agencies in Washington, in that the core of the actual debate and discussion among commissioners does, in fact, take place at the sunshined public session, usually with little prior consultation between commissioners. This is, in fact, another reason why multiple GC drafts have become more common - because the Commissioners do not usually determine the outcome in private negotiations prior to the meeting, no prior result is dictated to the staff.
 
All of this is a long way of saying that it is almost always a mistake to suggest that an opinion drafted by the Counsel's Office comes from any particular commissioner or block of commissioners. It comes from the Counsel and the Counsel's judgment of what may be helpful to the Commissioners. It may reflect the Counsel's view of differing policy choices that he feels may be favored by different commissioners.
 
There has long been a tendency to speculate on the workings of the Commission by people who don't know how the Commission works, or who, in some cases, even have a vested interest in misrepresenting activities at the Commmission, such as the long-standing reformer chestnuts that the Commission frequently "deadlocks" (factually untrue by any standard) or that Commissioners are mere appendages of their party's congressional caucus deciding cases on partisan grounds (also demonstrably untrue). Such low-rent Kreminology may be a fun parlor game but it does little to help anyone understand the workings of the Commission or the reasoning of the Commissioners, and in fact often has the opposite effect. 
 
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317
http://www.law.capital.edu/Faculty/Bios/bsmith.asp

 
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