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With 19 employees and a budget of $1.8 million when Congress shut it down in 1995 after refusing to provide further funding, the Administrative Conference of the United States (ACUS) was one of the smallest federal agencies ever put out of business. Now it looks as if the diminutive, relatively obscure agency may be revived, and it presents a special case for resurrection. Created in 1968 by the Administrative Conference Act, ACUS’ principal legislative charge was to study the efficiency, adequacy and fairness of the procedures employed by federal agencies, and to make recommendations for agency reform to the president and Congress. ACUS also played a significant role in advising agencies on laws affecting their practices, such as the Freedom of Information Act and the Sunshine Act. The structure of ACUS fostered a unique public-private collaboration. A chairman, in effect the chief executive officer, was appointed by the president to a five-year term, and a council of 10 members, appointed by the president to three-year terms, functioned as a governing board. Half of the council members were unpaid private-sector representatives. Much of the initial research and drafting of ACUS recommendations was performed by academic consultants paid relatively nominal amounts for their time. The recommendations were considered by a plenary assembly. Roughly half of the 80-person assembly was comprised of agency heads, or their designees, and the other half were unpaid private-sector members. The private members, appointed by the chair, were almost all accomplished practitioners and academics in the administrative law field. Together, these members constituted a large reservoir of expertise. During its quarter-century existence, this mostly volunteer mix of administrative law policy wonks was able to leverage ACUS’ meager in-house staff and budget resources to spur some consequential government reforms. For example, its recommendations led to limitations on sovereign immunity in suits seeking judicial review of agency action, improvements in access to information under the Freedom of Information Act, adoption of innovative administrative dispute resolution and negotiated rulemaking techniques and many refinements in informal rulemaking practice. Because of the abrupt manner in which its funding was terminated, the reasons Congress shuttered ACUS are not entirely clear. The legislative history reveals some sense that Congress thought the agency’s work was largely done. There are also indications that Congress, looking for ways to downsize government, found ACUS an easy target. No matter that its $1.8 million budget was a mere flyspeck in the overall budget. Finally, it’s possible that some administrative law judges, displeased with attempts to change the way ALJs are hired and managed, may have worked behind the scenes to scuttle the agency. But ACUS might have a second life. Before recessing in October 2004, Congress passed the Federal Regulatory Improvement Act of 2004, authorizing a $3 million appropriation for ACUS for fiscal year 2005, with funding through 2007. But for ACUS to be resuscitated, Congress must now actually appropriate the funds. Congress should do so. The public gets its money’s worth in ACUS, not only in proposals that lead to real cost savings, but also in recommendations that lead to more efficient and fair agency procedures, the value of which can’t, and shouldn’t, be measured in dollars. In May, justices Antonin Scalia and Stephen Breyer, who are both very familiar with ACUS’ work, testified in favor of its rebirth. There are important new issues a reconstituted ACUS could address. For instance, with the creation of the mammoth Department of Homeland Security, and new institutional arrangements reorganizing the nation’s intelligence function, the country could benefit from an organization with a history of operating in a bipartisan spirit offering advice on tough issues implicating the delicate balance between security and liberty. In this Internet era, ACUS could make a priority of studying how agencies can use new technologies to achieve greater efficiencies, while at the same time increasing decision-making transparency and citizen-agency interaction. ACUS could become a respected advocate for meaningful civil service reform. Much work remains to be done to refine and promote the use of alternative dispute resolution techniques to reduce administrative litigation costs. And the proper use of scientific knowledge and technical experts in agency policymaking needs continued study to achieve the most cost-effective regulation. Even in a time of tight budgets, Congress could do much worse than appropriate $3 million to bring ACUS back. Randolph J. May is senior fellow at The Progress & Freedom Foundation in Washington. The views expressed here are his own and not those of the foundation. May was a private-sector member of Administrative Conference of the U.S. at the time of its demise, and he presently chairs the American Bar Association’s Administrative Law Section, which is on record as favoring ACUS’ revival.

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