Over the past year, FCC Commissioner Mike O’Rielly has drawn valuable attention to various Commission procedures in need of reform. Of these procedures perhaps the most perplexing is that of “editorial privileges” – a process whereby Commission staff is granted permission to continue editing Commission Orders subsequent to their adoption, such that the text of the Order voted on by the Commission is not necessarily the same as that ultimately published in the Federal Register or otherwise released to the public. This procedure is longstanding – predating institutional memory; yet it is also entirely unprecedented in the canon of administrative law. No other federal agency uses anything like it, nor is anything like it contemplated by the Administrative Procedure Act. This essay attempts to unravel the mysteries of editorial privileges: the practice’s history, its purpose, its current practice, and, most importantly, its legal meaning. The historical aspect of this effort is important. Editorial privileges are a holdover from an earlier era in the Commission’s history: the pre-Sunshine Act era, during which the Commission could carry out its statutory duties in a more collegial and informal manner. In the modern era, under both Democratic and Republican leadership, editorial privileges have been used to patch over a broken and dysfunctional deliberative process – worse, it likely exacerbates that process’s problems. It should be emphasized that “mystery” is an apt way to describe this unique practice: its origins are unclear; it has not been subject to significant scrutiny; and its practice is governed by internal agency manuals that are not available to public inspection. Fortunately, I had a great deal of help in researching this topic: I had the opportunity to speak to former and current senior FCC officials, including bureau chiefs, senior Office of General Counsel staff, and individual Commissioners and their staff. Collectively, I spoke with individuals – including those with experience in, or who were appointed by, both Democratic and Republican administrations – familiar with the Commission’s use of editorial privileges continuously from before the adoption of the Government in the Sunshine Act of 1976 through present. While mystery surrounds editorial privileges, there is little mystery as to my conclusions about them: the Commission must take immediate action to reform its use of this process, and, ideally, should abandon it entirely. The current practice of using editorial privileges conceivably opens many Commission Orders to attack on substantive and procedural grounds. Importantly, a simple procedural change in how items are voted on at open meetings could save the practice (to the extent it is worth saving): instead of voting to approve items on which staff would request editorial privileges, commissioners should vote to place those items on circulation. This would effectively preserve the practice as currently used in a procedurally-defensible way. That said, as I argue below, “editorial privileges” are not a thing worth saving. As captured by administrative-law colleagues to whom I described the practice, editorial privileges are “absurd” and “flabbergasting” – this practice is an unwarranted deviation from standard administrative practice, and, in its current form, it is overtly used by the current Commission and other recent Commissions to subvert basic principles of administrative law. This essay proceeds in four parts. Part I provides a general overview of Commission voting, including the governing statutes and rules, and the distinction between voting on items on circulation and at open meetings. Part II discusses the history of editorial privileges, focusing on its evolution from the time of the adoption of the 1976 Sunshine Act through its modern practice. Part III turns to criticisms and defenses of the practice. And Part IV considers the future of the practice, explaining that it can be saved but arguing that it should be abandoned.
Blacklining Editorial Privilege,
Mich. Telecomm. & Tech. L. Rev.
Available at: https://repository.law.umich.edu/mttlr/vol23/iss1/4