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Federal commissioners have long chafed under the requirements of the Government in the Sunshine Act. The concern has been particularly acute at the Federal Communications Commission. In a bipartisan letter released Feb. 2, Chairman Michael Powell and Commissioner Michael Copps urged the House and Senate Judiciary Committees to amend the act’s “open meetings” requirement. The recommended amendment would allow private communication between commissioners. Congress should act quickly to implement this long overdue reform. It should amend the open meetings requirement to allow expressly for pre-decisional deliberations between agency members to be held in confidence so long as agency members memorialize for public release the occurrence of the meeting and its general subject. The Sunshine Act was enacted in the post-Watergate era in an attempt to shine the public spotlight on the inner workings of the government. But over time, it has become a hindrance on the effective, timely, and collegial operation of the FCC and other federal agencies. Notwithstanding its lofty objectives, the act has become the victim of unintended consequences. The Sunshine Act requires that “every portion of every meeting of an agency shall be open to public observation.” Agency means a federal agency headed by a “collegial body” composed of two or more members. A meeting is defined narrowly as “deliberations of at least the number of individual agency members required to take action.” The agency members are those individuals who belong to the collegial body. Thus, for a five-member commission, like the FCC, no more than two commissioners can meet and discuss the business of the agency outside the public eye. The drafters of this legislation were well-intended. Up until the Sunshine Act’s passage, the public was largely unaware of the inner workings of federal agencies, and much of the information disseminated was only that which the public relations offices at the agencies chose to release. But in the early 1970s, many Americans had lost trust in government and secret decision making because of the Watergate scandal. Against this backdrop, the act was designed to promote a more transparent form of agency decision making. Because agency meetings and deliberations would now be open to the public, the act also created the possibility of more public participation. With little debate, the act sailed through Congress and was signed into law in 1976. Complaints have arisen since then, and the FCC has been particularly vocal on the subject. In 1998, then International Bureau Chief Regina Keeney called the Sunshine Act an example of “good intentions that don’t work as well as they should.” Former FCC Commissioner Susan Ness has stated that the Sunshine Act’s provisions “can be counterproductive.” FCC Chairman Powell started voicing his discontent back in 1999, in an appearance before the House Energy and Commerce Subcommittee on Telecommunications, when he asked Congress to exempt the FCC from provisions of the Sunshine Act. DECREASING PUBLIC MEETINGS The complaints stem primarily from the practical difficulties in satisfying the open-meetings requirement of the Sunshine Act. First, it has led to a decrease in collegiality in the decision-making process at agencies. Commissioners cannot discuss with other commissioners issues they routinely face, out of fear of violating the open-meetings requirement. An open exchange of ideas and issues would increase collegiality by allowing commissioners to get to know the intricacies, background, and basis of their colleagues’ views, thus allowing them to understand better their colleagues’ positions. Frequently, it’s the commissioners’ staff, acting as proxies, who must meet and hash out disagreements. In that regard, Commissioners Powell and Copps wrote, “[T]he open meeting requirement . . . is a barrier to the substantive exchange of ideas among Commissioners, hampering our abilities to obtain the benefit of each other’s views, input or comments, and hampering efforts to maximize consensus on the complex issues before us.” Second, the open-meetings requirement has led to commissioners being reticent to explore controversies, ideas, and novel solutions. Since any such discussions must take place under the harsh glare of the press, the resulting fear of public backlash and risk of premature disclosure leads to timidity. Yet the random suggestion or outside-the-box idea may be the optimal solution. If the open-meetings requirement were removed from the Sunshine Act, commissioners would feel more free to deliberate these novel approaches. As Justice Byron White wrote in United States v. Nixon (1974) in addressing issues of executive privilege, “Experience teaches that those who expect public dissemination of their remarks may very well temper candor with a concern for appearances . . . to the detriment of the decision-making process.” Paradoxically, the Sunshine Act may also have diminished the frequency of public meetings. A commissioner is less likely to call for a meeting on a sensitive and possibly unpopular subject without the opportunity in advance to vet and share views and concepts with other commissioners. A further problem with the Sunshine Act is that it has led to more centralized control of agencies in the office of the chairman. Because the Sunshine Act prevents the chairman from easily conferring with other commissioners before public appearances or congressional testimony, his public comments frequently reflect only his own thoughts and not those of the commission as a whole. The chairman tends to become the public voice of the entire agency, and the public tends to view the chairman as the agency. The Sunshine Act has also led, ironically, to the greater use of “notation” voting by agencies. Notation voting enables commissioners to make decisions by just taking a vote, with no public discussion. IMPROVING COLLEGIALITY Allowing private pre-decisional deliberations between agency commissioners would ameliorate many of these problems, while protecting the goals of the Sunshine Act. Staff would not need to act as go-betweens for the commissioners as frequently. Collegiality between commissioners should likely improve because of the increased communications and deliberations between them. Notation voting might decrease, and public meetings, properly vetted in advance by the commissioners, might be more frequent. Allowing for private pre-decisional deliberations would still be consistent with the purpose of the Sunshine Act — open governmental decision making — since agencies must still hold public meetings where they discuss the issues being faced and the views of all the commissioners. The final discussion and decision will occur at this type of meeting, in public, despite any previous conversations among commissioners. A requirement that a summary of these pre-decisional meetings be released to the public would ensure that the public learned of the occurrence of these meetings and their general nature. This should satisfy the concerns about secrecy that prompted the Sunshine Act and prevent agency abuses. A return to substantive pre-decisional meetings would make agencies operate similar to appellate courts. Judges on a panel typically read publicly filed briefs, hear oral argument in open court, and publish decisions that explain their reasoning. Yet they often get together and discuss issues in private before drafting those opinions. This practice is effective in the judiciary at serving the public, and it could serve the executive branch as well. In the end, sunshine is beneficial, but our public leaders may need an occasional moment in private. Andrew D. Lipman, a partner in the D.C. office of Swidler Berlin, is chairman of the firm’s telecommunications, media, and technology group. Joshua S. Lamel is an associate in the D.C. office.

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