It's a bit rainy here in DC today, but if you start humming that old 60s Temptations hit with me ("I got Sunshine....."), everything looks brighter.
Oh, that's all just a segue to say that tommorrow I am moderating a Federal Communications Bar Association panel on the Sunshine Act and the FCC. Ten years ago I chaired a committee of the Administrative Conference of the United States which recommended that Congress authorize agencies to conduct a 5-7 year pilot program that would allow members of multi-member agencies to meet in private, provided they put a detailed summary of the meeting in the public record shortly after the meeting. There were other safeguards as well. The recommendations for a change (at least on a experimental basis)in the Sunshine Act were based on findings that, as a practical matter, the act produces a real-world effect contrary to one of the supposed principal congressional objectives for creating multi-member agencies in the first place: To obtain the benefit of a collegial decisionmaking process that brings to bear on the ultimate decisions the diverse viewpoints of agency members who have differing philosophies, experiences, and expertise.
As readers of this space know, for various reasons, I am not necessarily a big fan of multi-member "independent" regulatory agencies like the FCC as opposed to single-headed Executive Branch agencies. But if we have them, we want them to work as well as possible. We want them to operate efficiently and collegially, and we want them to engage in a decisionmaking process that leads to high-quality decisions that withstand judicial review.
For a critique of the current Act and the ACUS recommendation for change, see here. And, for the letter earlier this year from the two Michaels (Powell and Copps) to Ted Stevens urging that Sunshine Act reform, at least for the FCC, be considered as part of overall telecom reform, see here.
"I got Sunshine...on a rainy day...." Can't you hear the Temptations in the background? Maybe I'll see you tommorrow at the FCBA program.
