Major rulemakings are expected this year from the U.S. Securities and Exchange Commission, Federal Trade Commission, and other “independent” agencies. The more controversial of these rules will be accompanied by dissenting opinions from one or two of the agency’s members. What’s the impact of such dissents? Potentially game-changing.
In some respects, agency dissents function like a dissenting opinion in a court of appeals. By pointing out errors in a draft majority opinion, a judge’s dissent can improve the final product. In a similar way, when a dissenting commissioner notes flaws in a draft rule’s terms, or in the explanation given by the commission majority, the opinion can contribute to a final product that is less onerous, more effective, or more thoroughly considered and explained in the “preamble” that accompanies the final rule.