The Case for “Constructive Gridlock” in Independent Agencies

Authors

Jeffrey Manns

Document Type

Article

Abstract

Critics of President Trump have alleged that he has reduced independent agencies to mere extensions of the executive branch during his second term. The reality is that Democratic and Republican presidents routinely leverage the opportunity to reshape independent agencies in openly partisan ways because presidents have majority control of the appointments for the leadership of virtu ally all agencies. I examine a large data set of independent agency votes from the Obama and first Trump terms to show that independent agency commissioners vote in predictably partisan ways when addressing substantive policy changes. The partisan design of independent agencies undercuts agency claims to “independence.” As a result, substantive policy changes at independent agencies generally become transient victories that are likely to be reversed by the next administration from the opposing party. I make the case for restoring a degree of independence to independent agencies by institutionalizing “constructive gridlock” in their leadership. I call for creating an even split in independent agency commissioners from the two major political parties. Gridlock between the two major political parties is almost uniformly panned as a problem plaguing our legislative process. Our current Congress epitomizes the potential dysfunctionality of legislative gridlock with divided government and high levels of partisanship leading to a dearth of statutes and frustration at inaction. But I argue that creating partisan balance in the leadership of independent agencies would have positive policy effects and legitimize decisions made by unelected leaders. Institutionalizing an even partisan division in the leadership of independent agencies would necessitate bipartisanship for agency action and pressure elected leaders in Congress to act when independent agency leaders cannot overcome their ideological differences. This approach would further an underlying purpose of independent agencies for appointees from both major political parties to work jointly to legitimize rulemaking and adjudications. Well-known safeguards exist to foster the autonomy of independent agency appointees from the executive and legislative branches. But I argue that the majoritarian structure of (almost all) independent agency commissions and the partisan nature of the appointments process ensure that politics, rather than bipartisanship and independence, prevail when the stakes matter. To prove this point, I have gathered a data set of over 5,000 commissioner votes by the Securities and Exchange Commission (“SEC”), Nuclear Regulatory Commission (“NRC”), and Federal Election Commission (“FEC”) from the Obama and Trump administrations. I compare the impact of three-two partisan splits in commissioners (SEC and NRC) with three-three commissioner political splits (the notable institution with partisan balance—the FEC). A large majority of votes in the SEC and NRC on uncontroversial issues are unanimous. However, I show that the partisanship inherent in the majoritarian structure of independent agencies is clear in the subset of ideologically driven votes concerning substantive policy changes. In contrast, the FEC is more frequently affected by strategic, partisan gridlock of commissioners, which often stops votes from happening about controversial election issues. Critics may deride stalemates as a sign of independent agency failure. But I argue that independent agency gridlock concerning politically charged questions shows the virtues of political balance by taking divisive political issues out of the hands of unelected appointees and sending them back to the democratically elected leaders in Congress. I use game theory to illustrate the potential impact of the shift to political balance in independent agencies. Using a range of prisoner’s dilemma simulations, I show how parity in political leadership may increase the potential for agency deadlocks concerning politically divisive questions, while also increasing the payoffs from bipartisanship. At first glance, greater deadlocks may appear to create a potential bias towards the status quo of regulation, which may incentivize the side that benefits to dig in their heels. But the nature of evolving regulatory challenges frequently requires changes even to settled frameworks, which would pressure commissioners to work on building bipartisan consensus. At the same time, divisive questions may lead to lasting impasses among independent agency commissioners. The logic of partisan balance in the leadership of independent agencies would be to place the onus on Congress and the President to address enduring regulatory stalemates through the legislative process. That does not necessarily mean that Congress will address regulatory gridlock. Rather, the more important the issues that independent agencies fail to resolve, the higher the degree of pressure that elected leaders in Congress would face to act.

DOI

10.37419/LR.V13.I1.5

First Page

237

Last Page

293

Recommended Citation

Jeffrey Manns, The Case for “Constructive Gridlock” in Independent Agencies, 13 Tex. A&M L. Rev. 237 (2025).
Available at: https://doi.org/10.37419/LR.V13.I1.5