Commissions, Government
Commissions, Government
Types and functions of commissions
The term “commission” covers several usages: (1) the document, signed and sealed, that evidences an official appointment, such as a captain’s commission; (2) the term of office of an appointee, as in the phrase appended to a notary’s acknowledgment, “My commission expires on … (date)”; (3) the title of the heads of various departments or divisions of national, state, or municipal governments, for example, commissioner of patents or county commissioner; (4) the name of an official agency or institution headed by a collegial body of commissioners. This article is confined to the last of these usages, excluding unofficial bodies (often self-constituted) that call themselves commissions and that may indeed perform some more or less analogous functions in the larger political system of society. Even so understood, the terminology is arbitrary: an agency called a commission may be otherwise indistinguishable from something elsewhere called a board, a council, a committee, a tribunal, or a court. Nuances of emphasis that in certain cases would support distinctions between these terms—resting on the source of the powers (president’s commission), the larger or higher body from which the membership is drawn (judicial committee of the privy council), or the nature of the mandate given (board of examiners)—break down in the indiscriminate usage the words have received. The distinction attempted in the Encyclopaedia of the Social Sciences (1930–1935), between commissions as regulatory bodies (Dickinson 1931) and boards as administrative (Fairlie 1930) or advisory (Macmahon 1930), has not caught on. The one common feature of all such bodies that is pertinent here is the plural headship of the institution, in contrast with agencies having a single chief. This feature is usually, if not inevitably, accompanied by a certain degree of autonomy within the surrounding governmental structure.
Government commissions, formally constituted, appear to be rare among the institutions of relatively primitive societies. But they occur frequently in the governments of advanced countries, whether the regimes are federal or unitary, presidential or parliamentary, one-, two-, or multiparty, or democratic in the Eastern or the Western sense. In Britain, official bodies formally commissioned to carry out various governmental tasks, and empowered in so doing to adjudge rights and impose penalties, date back at least to the time of Henry viii. During the sixteenth and seventeenth centuries, some of these (for example, the Court of High Commission) were seen as encroachments on the common law courts and gave “government by commission” a bad name as a threat to liberties —a reputation that lingered there in conservative legal quarters as late as Lord Hewart’s attack on administrative justice in The New Despotism (1929) and in the United States in the American Bar Association’s anti-New Deal campaign that culminated in the Administrative Procedure Act of 1946. Meanwhile, during the nineteenth century in Britain, royal commissions of inquiry became favored instruments leading to major advances in social legislation, such as the Factory Acts. In the United States, administrative and regulatory commissions were created sporadically in state and local governments as early as the 1830s as a means of giving added competence, vigor, or impartiality to various governmental functions. They multiplied in number during the post-Civil War decades and gained in prestige when Congress copied the model in establishing the Interstate Commerce Commission in 1887. After Galveston, Texas, experimented with it in 1901, the “commission plan” enjoyed wide popularity as a model form of municipal government. Reliance on commissions became an article of the Progressive faith.
On the Continent, commissions were formed around the monarchical establishments of the leading European powers in the sixteenth and seventeenth centuries. Peter the Great introduced them into Russia, and the Soviet Union employs them in its budgeting and planning processes.
Types and functions of commissions
Two preliminary distinctions, if not too sharply drawn, are useful in sorting out types of commissions and the various functions they may perform. One is temporal, between bodies convened ad hoc to deal with a specific situation and those permanently established to handle a class of business arising regularly or intermittently. Thus, a boundary commission expires when its determination has been made; a truce commission is finished when a treaty of peace has been concluded; a claims commission is temporary if the claims it is set up to hear relate to a single episode, like the Philippines War Damage Commission, and permanent if the claims are of a class that will recur indefinitely. Very different considerations may enter into the appointments made to temporary commissions from those applicable to replacements in an ongoing body. For the same reason, structure, powers, and procedure may also vary considerably.
The second kind of distinction turns on the overt purposes commissions may be established to serve: (1) an arbitral commission to reach a decision binding on the parties to a dispute, such as the Electoral Commission that settled the outcome of the Hayes–Tilden election in 1876; (2) a commission of inquiry to investigate, report findings, and perhaps pass judgment on the responsibility of individuals for an event—often a disaster or a scandal—that has transpired, such as the Warren Com-mission following the assassination of President Kennedy in 1963; (3) a ceremonial commission to mark an occasion of moment, such as the George Washington Bicentennial Commission, in 1932; (4) a study commission to make plans or recommendations for future public policy, such as the two Hoover Commissions on Organization of the Executive Branch of the Government, in 1949 and 1955; (5) an operating commission to conduct a branch of public enterprise, such as the Atomic Energy Commission, or to administer a subsidy system, such as the Federal Maritime Commission; (6) an advisory commission to maintain liaison between a governmental agency and some of its clientele publics, such as the Advisory Commission on Intergovernmental Relations; (7) a regulatory commission to supervise some field of public or private activity, such as the Civil Service Commission or the Federal Communications Commission.
These categories are suggestive rather than exhaustive. Clearly, most of the tasks they comprise could be—and in apparently similar circumstances often are—performed by single-headed agencies or by a single official with a suitable staff. A single judge can arbitrate a dispute or conduct an inquiry, as Justice Spence of the Supreme Court of Canada did in 1966 into the sex-and-security scandal charges brought by the Liberal government against members of the previous Diefenbaker government. A cabinet minister can organize a study, recommend policies, oversee a departmental operation, and regulate an industry: the secretary of the treasury, for example, does all these things every year.
To understand the prevalence of commissions, therefore, it is helpful to employ a third sort of classification that looks at their latent functions and, hence, the ulterior purposes they may serve. For example, a collegial body may lend added dignity, authority, or apparent impartiality to official action and thus tend to legitimize both the action itself and the regime that established the commission. A hard decision from such a source may be easier for its subject to accept, and in that case the beneficial effects accrue to all concerned. Similarly, the award of a tribunal or a rule adopted by a commission—the product of deliberation—may be more acceptable than the decree of a single official that smacks of whim or patronage. The effect of a united front may indeed be deemed so important as to warrant a caucus procedure, binding all the members of a commission to give an outward expression of unanimity to the decision of a majority. Alternatively, a commission that announces divided decisions, and publishes majority and dissenting opinions, may nevertheless legitimize its work by its evident reliance on rationality to justify its actions.
Again, when an unpleasant duty is to be done, for which no one involved wants personal responsibility, the task may be given to a commission. To take an extreme example: when a man is sentenced to be shot, the means usually used is a firing squad and not a single executioner so that no one may know whose bullet did the deed. More generally, a collegial body, meeting in camera and acting collectively and impersonally, shields the responsibility of the members in anonymity. Here the benefits accrue to the members rather than to the regime.
A commission is indispensable if its chief function is representational, to assure a voice in deliberations to each of several parties with diverse interests. International bodies, domestic intergovernmental agencies (established, for example, under an interstate compact), and tripartite tribunals to handle labor–management disputes fall into this category. Ex officio memberships, as on an interagency commission, are a mark of the representational function.
Commissions have other latent functions, notably, bargaining, public education, delay, patronage, appeasement, frustration, and rubber-stamping. A commission composed of representatives of contending economic, sectional, or ethnic interests, with or without additional members as “impartial” mediators or referees, may provide the means of working out internally the compromises essential in reaching a decision acceptable to all the interests. An interdepartmental or intergovernmental commission, or a mixed commission of officials and private parties, may function similarly as a forum for bargaining. In all these situations, successful bargaining contains conflicts that otherwise would result in stalemate or would spill over into a wider political arena. Where acquiescence in a decision rests basically on agreement between recognized representatives, for instance, in settling strikes, fixing prices, or allocating markets, the bargaining function reinforces the legitimacy of the commission as an institution.
A further constructive function is educational. Commission studies, reports, and recommendations, clarifying issues and marshalling evidence, are important elements in the political process of building public support for many policy changes. In Britain this historic role of royal commissions and of parliamentary select committees has lately been more often performed by departmentally appointed committees. In the United States it is a role of temporary commissions, regulatory commissions, and congressional committees.
The delaying function scarcely needs elaboration. Unsuccessful bargaining leads to a deadlock that it may be inconvenient to acknowledge. Indecision in the face of uncertainties over the costs and benefits of alternative policies may be equally awkward to confess. Controversies that cut across party lines endanger the stability of coalitions and jeopardize other objectives. So when an intractable problem evidently admits of no agreed or clear solution at present, tacit or explicit agreement may nevertheless (or therefore) be reached that the issue need not be settled now. Creating a study commission to report later may be a face-saving form of inaction that postpones the timetable for decision. The Wickersham Commission on Law Enforcement, established during the Hoover administration to temporize with the prohibition issue, was a classic instance. The tactics of delay may boomerang, of course, as they did in that case.
The patronage function is equally plain. Multi-member commissions afford a multiplicity of appointments. Some of these, because of their prominence or the policy stakes that hang on them, will be filled according to tests of merit and fitness. But the more numerous (and hence obscure) the places or the more honorific the assigned duties, the more likely it is that they will be used to satisfy patronage claims. It would be a mistake to suppose that all the patronage accrues necessarily to the formal appointing authority. Commission appointments may reflect demands, or serve to co-opt support, from quarters within the political system that are apparently unrelated to a commission’s overt scope of activities. In the United States, for instance, ex-congressmen frequently find shelter in federal commissions.
Finally, a commission may serve to pacify some clamorous group for whom nothing more will actually be done: a study project will keep the members occupied and symbolize their concerns. This, as it turned out, proved to be the main function of the Kestnbaum Commission on Intergovernmental Relations in 1954—1955, some of whose sponsors and members appeared to desire a return to the Articles of Confederation. A policy proposal may also be given to a study commission hostile to its main thrust as a means of killing it or to a tame group for a foreordained approval.
The study of commissions
The universe of commissions, doing business under that name or another, is too heterogeneous for systematic study as a single category, apart from the initial difficulties of definition and collection in compiling an inventory. Research in the field, accordingly, has generally taken one or another of at least three broad paths, not altogether mutually exclusive: historical, topical, and comparative, all dealing with selected fragments.
Case studies have dealt with commissions individually, or in groups, or with significant episodes in the life of single agencies. Their emphasis may be on the agency as an institution or, more broadly, on policy development in its field. Such studies range in bulk from Sharfman’s bland four-volume account, The Interstate Commerce Commission (1931–1937)—which, though the work of an economist, is devoid of economic analysis—to articles and pamphlets, for example, the Inter-university Case Program’s publication, The Public Advisory Board and the Tariff Study (1956). Well-done case studies have the merits of realism and depth and the disadvantages of using history as a basis for theoretical generalizations. Henderson’s (1924) still-classic examination of the disillusioning first decade of the Federal Trade Commission’s experience illustrates the value of this type of work.
Topical studies in Britain and the United States during the 1920s and 1930s were dominated by the concerns of public law—the scope of delegated powers of commissions in dealing with individuals and business firms and the extent of judicial review of administrative decisions. These concerns entailed a concentration on regulatory authorities and made more or less irrelevant the question of single-headed or multimember agencies. In Britain the Report of the Committee on Ministers’ Powers of 1932 defended existing trends toward delegation of power against Lord Hewart’s attack. In the United States the controversy lasted longer and produced a voluminous legal literature on evolving judicial doctrines of due process and on the combinations of powers that make a regulatory agency at once prosecutor-and-judge and legislator-and-judge.
The U.S. Attorney General’s Committee on Administrative Procedure, headed by Dean Acheson and supported by staff work under the direction of Walter Gellhorn, issued a report (1941) that was a landmark: it covered all federal agencies having regulatory powers and examined in detail the procedures each employed in exercising them —thereby getting into matters of internal organization and permitting systematic comparisons. World War ii postponed action on the report, while it multiplied the number of regulatory agencies and the activities to be regulated. The Administrative Procedure Act of 1946 effected a compromise of the contending political forces. Treating rule-making and adjudicatory powers separately, it prescribed procedural safeguards for each but in language sufficiently general and with saving clauses sufficiently broad as not to prevent any substantive action previously authorized. Perhaps its most no-table feature was the requirement, in formal adjudication, of the use of independent hearing examiners. Its symbolic success is attested by the fact that the whole topic has ever since remained largely in the province of specialists in administrative law, while the practice of regulation employs more lawyers and more red tape.
The related topic of investigatory powers, involving the compulsory appearance of witnesses and the production of records and reports, is in Britain mainly an aspect of administrative or ministerial action, since royal commissions ordinarily are limited to voluntary testimony and the courts are bound by statutory delegations. In the United States this topic, important as it is in the work of regulatory and enforcement agencies, including commissions, has aroused widespread political and scholarly interest chiefly in connection with congressional investigating committees, which are beyond the scope of this article. [SeeLegislation, article onLEGISLATURES.]
The report of the U.S. President’s Committee on Administrative Management (1937), although its attack on the “headless fourth branch” proved abortive, ushered in a fresh range of more rewarding issues for study: the internal structure and workings of commissions; and the relations of commissions, and in particular the ten principal regulatory commissions, to the president, to the Congress and its committees, to cognate executive departments, and to organized clientele groups. The U.S. Supreme Court’s decision in Humphrey’s Executor v. United States, 295 U.S. 602 (1935), sustaining a statutory limit on the president’s power to remove a member of the Federal Trade Commission, had already raised the issue of commission independence, but the focus of research thereafter shifted to, and has remained on, commission behavior rather than judicial doctrine about the separation of powers. Once the rule-making, adjudicatory, and enforcement powers of the commissions were held constitutionally valid, it was futile to argue whether these agencies were in the executive branch or somewhere else.
Independence has several facets. Presidents rarely attempt to influence the outcome of particular commission decisions; this would seem improper when private rights are being adjudicated. But presidents freely use their appointing power to bring about changes in prevailing commission viewpoints. The scope for such changes depends on the frequency of vacancies, which varies considerably even though the terms of office are staggered and outrun the president’s own. The practice of reappointing incumbents is equally uncertain; President Eisenhower in his first term reappointed none. The Board of Governors of the Federal Reserve System had only 3 chairmen in the 30 years following its reorganization in 1935; and Chairman William M. Martin, a Truman appointee, survived into the Johnson administration. The Federal Trade Commission, by contrast, had 41 different chairmen in the first 50 years of its existence; only 4 lasted as long as 2 years.
The other side of the coin of independence is political isolation. Without administration support it is seldom possible for a commission to get needed changes in its organic statute or larger appropriations. It is difficult also to arrange top-level interagency coordinating mechanisms for policy purposes across a broad economic front, such as transportation, water resources, or finance, when an independent commission is one of the agencies with jurisdiction in the premises. This was less of a problem in the pre-World War ii days, when the segments of the economy subject to commission regulation seemed relatively self-contained.
One ameliorating step followed a recommendation of the first Hoover Commission and was justified at the time chiefly on grounds of administrative efficiency. A series of reorganization plans in the 1940s and 1950s, affecting all the commissions except the ICC and the Federal Reserve System (where practice already conformed), concentrated in the chairman’s office authority over all administrative affairs of a commission and authorized the president to designate the chairman. This is a milder form of a remedy previously urged and partially applied in the fields of shipping and civil aeronautics: segregating, as far as practicable, the adjudicatory aspects of a commission’s job from its other functions, namely, promotion, subsidy, and operations, and assigning a regular executive department to handle the operations.
A special case is the Civil Service Commission, which combines an immense administrative and record-keeping task with a reviewing function in connection with personnel grievances. Its clientele consists of federal civilian employees and their unions. Since the Hoover Commission’s reports it has moved from a tradition of regulation to a position as champion of employee interests, while its chairman, wearing a second hat, has been drawn into the the White House staff as the president’s adviser on personnel matters. Here the trend toward increasing judicialization, so characteristic of many regulatory commissions, has been reversed.
Commission relations with clientele interests raise the issue of independence in another aspect, relevant to both regulatory and advisory bodies. A degree of intimacy breeds expertise and ease of communication on the part of the commission and confidence and voluntary compliance on the part of the clientele. Carried too far, it jeopardizes a commission’s reputation for impartiality and invites conflicts of interest, if not outright corruption. Short of that, it fosters a parochial view that excludes interests which are affected but not represented in the immediate arena, as when banks and bank supervisors stand together against, say, savings and loan associations. How much intimacy is enough? In the Progressive era, when the commission movement arose, the expressed ideal was an impartiality that forbade all but formal and public contacts. A later and more realistic judgment would usually tolerate or welcome considerably closer relationships. Where the line is to be drawn depends importantly upon the degree to which a commission is engaged in adjudication or must rely on persuasion to accomplish its tasks. But the disillusioned note the tendency of intimacy to grow as time passes. This is the basis for Bernstein’s probably oversimplified concept (1955) of a “life-cycle of regulatory commissions,” according to which the missionary zeal that attends the birth of a commission is dissipated as the clientele interests infiltrate their supposed governor and ultimately make it their captive. [SeeLobbying.]
One other theoretical formulation may prove fruitful in further research on the politics of economic policy, including the policies entrusted to commissions. This is Lowi’s three-way categorization (1964) of domestic economic policies as either “distributive” (for example, the disposal of the public domain), or “regulatory,” or “redistributive” (for example, a graduated income tax), and his association of each of these categories with its characteristic type of politics—the politics of patronage, the politics of interest-group conflict, and the politics of class conflict. It may be that the categories are not so distinct as he supposes, but they are suggestive of ways of ordering more precise insights into the workings of commissions as well as of other governmental agencies.
Finally, a word is in order about the comparative approach to the study of commissions. It is one thing —and a thing often done—to collect and describe seriatim a number of instances more or less similar. It is something else again to devise analytical categories that will yield illuminating comparisons across a broad array of cases. Wheare’s revealing study (1955) of committees in British government is a systematic and methodologically sophisticated effort of this sort. It identifies seven “characters” —chairman, secretary, official, expert, layman, party member, and interested party—and examines each in the context of six types of committees— committees to advise, to inquire, to negotiate, to legislate, to administer, and to scrutinize and control. Some of his committees are commissions, and his categories are applicable generally.
Harvey C. Mansfield
[See alsoAdministration; Administrative law; Presidential government.]
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