Well, it's not everyday (or even every week...) that one of the FCC commissioners agrees with me on something. So it was a pleasant surprise when I discovered that both Michael Powell and Michael Copps did so recently. In a joint letter to Senator Ted Stevens, Chairman of the Commerce Committee, the two Michaels advocated modifying the Sunshine Act "to permit closed deliberations among Commisioners in appropriate circumstance." In support, they cited my law review article, Reforming the Sunshine Act, published in the Administrative Law Review in 1997.
In their letter, Chairman Powell and Commissioner Copps echo many of the points I made in the article, which was based on work I did while chairing a special committee of the Administrative Conference of the United States examining Sunshine Act reform. Powell and Copps assert that the Sunshine Act "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."
In other words, according to those who live with it, the Sunshine Act works to defeat one of the claimed advantages of a multimember "expert" agency like the FCC--the likelihood of reaching better decisions through collegial back-and-forth discussions that improve the final work product.
As I have explained here and at greater length here, I think, for a variety of reasons, it is time to explore whether we need a new institutional model for the FCC. For example, if the FCC were headed by a single administrator, the Sunshine Act issue would be obviated. But if we are going to stick with the existing multimember commission model, the argument for reforming the Sunshine Act put forward by the two Mikes deserves serious consideration.