Regulatory Subversion: An Analysis of Vacancies on Independent Regulatory Commissions in the United States

Abstract

With regards to federal agencies, studies have increasingly shown that the appointments process—and subsequently the corresponding vacancies—are lasting longer. Although these lapses in personnel staffing pose challenges for all kinds of agencies, they are particularly deleterious for independent regulatory commissions (IRCs), or agencies outside the Executive Branch which are designed to operate independently of political influences for the purposes of regulating predetermined industries. Indeed, vacancies on the IRCs can not only lead to inefficiencies, but could threaten to disrupt their partisan balance or—as has been the case recently—bar quorum. Here, I seek to contribute to the relatively sparse literature on IRCs, analyzing these patterns of deficiency and disentangling the influences which modulate them. Put another way, I ask two questions: first, with selective regards to independent regulatory commissions and using duration as the measurable of choice, how have the various stages of the appointments process, as well as vacancies, changed over time, and second, to what extent, if at all, are the conditions which have modulated these phenomena temporally- and politically oriented? Initially, I hypothesized that 1) vacancies and the appointments process have both elongated over the past century and 2) at least some of the conditions which have modulated these changes are temporally- and politically-oriented. In order to test this hypothesis, I conducted extensive archival research via annual Commission reports, newspapers, and the Senate Journal for Executive Proceedings, followed by a two-prong analytic approach, with a quantitative opening and a subsequent qualitative addition. With regards to the analysis, I first assembled a novel database as a product of the aforementioned archival research, before conducting a series of Cox Proportional Hazards Regressions and visualizing Kaplan-Meier Survival Curves in order to investigate whether any patters in durations were visible among the vacancy and appointments process data. Following these procedures, I pursued cursory case study-style research into how vacancies and the appointments process has affected the Federal Election Commission, privileging those periods of time in which vacancies were significantly pronounced. Ultimately, I found that, over time, IRCs have experienced progressively higher levels of vacancies, and have done so for greater periods of time. In addition, I find that each aspect of the appointments process—which includes the nomination, confirmation, and qualification stages—have also increased in duration. Moreover, I find that each of these general increases is modulated, at least in part, by both temporal and political factors, including the time elapsed since the founding of the IRC, when the vacancy arose relative to the President’s time in office, and ideological incongruence between the IRC and the President. Unfortunately, these observations pose threats to the IRCs and their manifold policymaking functions. By elevating this issue, however, I hope to join a narrow contingent of scholars dedicated to promoting efficiency and order in the modern administrative assemblage.