[Blogmeister’s prologue: Kevin Goldberg has a second-to-none track record when it comes to defending the First Amendment and Open Government. Named the outstanding constitutional law student in his graduating class at the George Washington University Law School, he has served as a member of the Board of Directors of the District of Columbia Open Government Coalition, a member of the Executive Committee of the Board of Directors of the National Press Foundation, a member of the Board of Directors of the Public Participation Project and the Chair of the Legislative Affairs Committee of the Media Law Resource Center. In 2006, Kevin was inducted into the National Freedom of Information Hall of Fame for his continued and superlative service in pursuit of open government. He is the youngest of the current 56 members in the Hall. When he has something to say about the public’s right to know, we listen. Kevin has something to say about the proposed “Federal Communications Commission Collaboration Act of 2013”.

We expect some of our readers may disagree with Kevin’s views, and we expressly invite those who do disagree to share their views with us in comments, or possibly even in a guest post.]

Nearly 50 years ago, Congress passed the federal Freedom of Information Act (FOIA), giving all of us citizens access to the records of every executive branch agency (subject to nine very narrowly-construed exceptions). The FOIA embodies the fundamental premise that the public has a right to know how the government does the public’s business.

A decade later, in the wake of the Watergate scandal, Congress passed the Government in the Sunshine Act (a/k/a the Sunshine Act), again seeking to ensure the public’s right to know. (In Congress’s words, “Government is and should be the servant of the people, and it should be fully accountable to them for the actions which it supposedly takes on their behalf.”) The Sunshine Act gives us all access to the meetings of certain executive branch agencies, much as the FOIA give us access to those agencies’ written records.

Maybe not for long, though, at least as far as the FCC is concerned.

Bills proposing the “Federal Communications Commission Collaboration Act of 2013” have been introduced in Congress – as S. 245 by Senators Amy Klobuchar, D-MN, and Dean Heller (R-NV) and H.R. 539 by Representatives  Anna Eshoo (D-CA), John Shimkus (R-IL), and Mike Doyle (D-PA). Under the bills’ provisions, FCC Commissioners would be allowed to engage in a significant amount of regulatory activity outside of the public’s view.

The Sunshine Act requires that “[e]very portion of every meeting” of the FCC and other similar agencies be “open to public observation”. In this context a “meeting” requires that (a) at least a quorum of commissioners be present and (b) “official agency business” be conducted or disposed of. One week’s advance public notice of such meetings must be given. While the Act provides ten exemptions which justify exclusion of the public and the press, those exemptions are limited and are not intended to excuse wholesale closure of meetings.

For years, officials subject to the Sunshine Act – including a number of FCC commissioners – have complained that it doesn’t easily allow for informal brainstorming sessions or other get-togethers involving multiple agency members. Maybe so, but I see that as at most a minor inconvenience when the goal is holding those in power accountable for their actions. Others obviously don’t agree with me, because the possibility of a Sunshine Act exemption specifically for the FCC has been repeatedly advanced for nearly a decade. A version of the FCC Collaboration Act was inserted into larger FCC reform legislation last year, but that legislation didn’t pass, which is why we’re back here again.

The current bills would effectively exempt the Commission from the Sunshine Act by allowing three or more Commissioners to meet if:

  • The meeting is bipartisan;
  • No votes or formal agency actions are taken at the meeting;
  • Everyone attending the meeting is either an FCC Commissioner, a Commission employee, the member of a federal-state joint board or on the staff of such a joint board;
  • An attorney from the Commission’s Office of General Counsel is also present; and
  • No later than two days after the meeting concludes, the Commission publishes on its website a disclosure listing those who attended and providing a summary of matters discussed.

So why do the bills’ sponsors believe that the FCC deserve this exemption? According to the bill’s “Findings” section:

FCC Commissioners past and present have complained that the Sunshine Act has “hindered the ability of the Commission to have a substantive exchange of ideas and hold collective deliberations on issues pending before the Commission.”

One of the main reasons for having agencies in the first place is to “obtain the benefits of collegial decisionmaking by the members of the agency, who bring to the decisionmaking process different philosophical perspectives, experiences, and areas of expertise.”

To avoid the procedural requirements of the Sunshine Act, Commissioners have resorted to “an inefficient combination of written messages, communications among staff, and a series of meetings restricted to two Commissioners [i.e., less than a quorum, thus not triggering the Act] at each such meeting to discuss complex telecommunications matters pending before the Commission.”

“Extensive use of such methods of communication has harmed collegiality and cooperation at the Commission. “

The FCC is facing a years-long backlog of “[n]umerous regulatory matters . . . continued inaction on [which] has the potential to hinder innovation and private investment in the domestic communications industry.”

The Commission must be able to work “more collaboratively and efficiently than in the past to meet the current challenge of expanding broadband Internet access to the extent necessary to serve the business, educational, health, and cultural needs of all people in the United States.”

So the FCC Commissioners don’t like the Sunshine Act because compliance somehow makes it a little harder for them to be collegial and cooperative and collaborative with one another? And that’s why there are backlogs at the agency? Seriously?

Sure, the FCC Collaboration Act – and Commissioners past and present – may pay lip service to the idea of the Sunshine Act and its goal of governmental accountability, but they plainly don’t think that that notion necessarily applies to the FCC. For some reason, the FCC is supposedly special and thus shouldn’t be hog-tied with the pesky procedural niceties the Sunshine Act requires.

At this point I’m reminded of the opening statement of one Vincent LaGuardia Gambini in the fictitional trial of Alabama v. Gambini. Mr. Gambini (known familiarly as “Vinny”) tersely but emphatically expressed incredulity at the claims advanced by the government in that case. Ditto here.

The FCC isn’t special and it doesn’t deserve a special Sunshine Act exemption any more than, say, the Securities and Exchange Commission does. And the SEC doesn’t deserve such an exemption any more than the Postal Rate Commission does. They’re all agencies that are making decisions which affect billion dollar companies and industries, as well as the lives of millions of Americans, every day. They all deal in complex, often rapid-moving, issues, just like the dozens of other agencies subject to the law.

But nobody would dare propose repeal of the Sunshine Act in its entirety. It’s too important to our freedom from government corruption. That’s why the Act was passed in the first place: to push back against excessive government secrecy. In my view, the law’s real flaw – and that of the FOIA – is that they don’t do enough to truly hold government agencies accountable. To some degree the Sunshine Act and FOIA have almost become paper tigers. Indeed, the “findings” set out in the FCC Collaboration Act make clear that agencies have identified, and implemented, multiple ways of circumventing the Sunshine Act – communicating through intermediaries, or by memo, or in serial meetings none of which include a quorum.

Maybe compliance with the Sunshine Act is less convenient than it might be. But note that the central impetus for the FCC Collaboration Act appears to be not inconvenience, but rather the odd notion that Commissioners are somehow less likely to be “collegial” or “cooperative” or “collaborative” with one another if they have to communicate in writing, or through aides, or by serial conversations. And because of that supposed lack of “collegiality”, “cooperation” and “collaboration”, we should simply abandon the Sunshine Act for the FCC.

Let me get this straight. Commissioners find it hard to be collegial or cooperative or collaborative with one another if they’re required to do their business in public, but if we let them have at each other behind closed doors, collegiality, cooperation and collaboration will reign and backlogs will melt away? Uh huh.

Back in the 1960s, when the FOIA was enacted, my former boss and mentor, Richard M. (“Dick”) Schmidt, was General Counsel for the United States Information Agency (USIA). Dick was a political appointee who spent much of his time before government (and all of his time afterward) advocating for open government and the First Amendment. He preceded me as the Legal Counsel to the American Society of News Editors.

As Dick told the story, a longtime USIA staffer came into his office complaining of the supposedly adverse impact the FOIA would have on the USIA’s operations. As the complainant saw it, “everything we do will be public. The [people out there will] know what we’re up to. They’ll know everything!”

To which Dick replied: “Those people out there pay our salaries. We work for them. They deserve to know what we’re up to. They deserve to know everything”.

The Sunshine Act doesn’t guarantee us that we’ll ever know everything, but it’s at least a long step in the right direction. The FCC Collaboration Act, on the other hand, would constitute a sad retreat, a concession that closed doors and backroom deals are the preferred SOP in government.

An important irony here is that the current FCC is seeking to expand its reach into all kinds of new areas that directly impact individual citizens, from Internet governance to net neutrality to cyber security. In the face of such expansion, is it really wise to allow the Commission to cloister itself further away from the public who will feel the brunt of its decisions?

[Blogmeister’s epilogue: Here’s a thought. Let’s say, for the sake of argument, that the inconvenience of providing seven days’ notice before a “meeting” can be held, and the requirement of opening those meetings to the public, really are stifling collegiality, etc. So why not simply allow Commissioners to meet and do as much business as they like, whenever they like, provided that all such meetings are recorded in toto – video would be nice, but a clean audio recording would probably do the trick – and made available on the FCC’s website within 24-48 hours of the meeting? It might be useful to have an independent person – maybe an attorney from the General Counsel’s office, or maybe the Inspector General – attend any such meeting and certify that the recording in fact reflects the entirety of the session. The Commission’s meeting room is equipped for such recording – and we’re guessing that Commissioners’ offices could be set up for such recording as well, if they’re not already. 

Since the ability to meet on short notice, without an intrusive audience, would supposedly lead to increased collegiality, cooperation and collaboration – not to mention increased productivity and reduced backlogs – it’s hard to imagine that any Commissioners, newly liberated from the oppressive restraints of the Sunshine Act, would object to the immediate availability of such recordings.]