I don't always (or maybe even often) agree with FCC Commissioner Michael Copps, but he deserves a lot of credit for continuing to espouse the cause of Sunshine Act reform. According to TR Daily's report, he did it again yesterday at his confirmation hearing before the Senate Commerce Committee when he urged changes in the act so that more than two commissioners would actually be able to talk to each other. After all, if you are going to establish a multi-member agency in the first place, you want it to function in a collegial manner. Senator Stevens, the Commerce Committee's chairman, reported responded that the Sunshine Act is "stupid" and said, "We're going to change that."
Cheers for Commissioner Copps and Stevens. They are on to something important.
Over a decade ago, I chaired a committee that proposed a modest reform of the Sunshine Act that would allow some private meetings among commissioners as long as a summary of the meetings were appropriately memorialized in the public record. I proposed that Congress at least authorize agencies to experiment with a change like this for some period of time so that the results could be assessed.
So here's a proposal: Without even modifying the act as it applies to all agencies (if that is too difficult to do politically or for other reasons), Congress should authorize the FCC to experiment with relaxed Sunshine Act restrictions, say, for a period of three years and provide Congress with an assessment of how the changes have affected the agency's decisionmaking process and the public's access to information. Of course, all other interested parties will be able to make their views known as well. Unless Congress took further action, the experimental authority would sunset. (I know: Sunset/Sunshine--it all makes so much sense.)
You can find the committee's report and my accompanying explanation of why reform is needed and what form it might take in the Administrative Law Review.