Last August, Senator Elizabeth Warren introduced a sweeping bill that, if enacted, would substantially reform the current ethics systems in place in the U.S. government. The bill includes a broad range of substantive reforms, including stricter conflict of interest rules, much stronger lobbying restrictions (such as a lifetime ban on lobbying by former members of Congress, Presidents, and agency heads), and new judicial ethics rules. But in addition to these and other changes to substantive law, the bill is striking in its call for a quite drastic institutional change: the creation and empowerment of a single anticorruption agency called the U.S. Office of Public Integrity. The proposed Office would not only consolidate the functions of the U.S. Office of Government Ethics (OGE) and the agency Inspectors General under one roof, but would also have broad investigative authority (including subpoena power), as well as the ability to impose civil and administrative penalties, and to refer criminal violations to the Department of Justice. Moreover, the Office of Public Integrity would have the responsibilities to ensure agency compliance with the Freedom of Information Act (FOIA), create and maintain a central FOIA database, and maintain a separate online database containing financial disclosures, lobbyist registrations, lobbyist disclosures of meetings and materials, and all ethics records (including recusals and waivers). A division within the Office of Public Integrity, known as the Office of the Public Advocate, would represent the “public interest” in executive branch rulemaking.
In addition to its broad powers, the proposed Office of Public Integrity is notable for its distinctive leadership structure. The bill proposes that the office be headed by a single Director, appointed for a renewable five-year term. The Director would have “for-cause” removal protection, meaning that the President could only remove the Director for good cause, defined as “inefficiency, neglect of duty, or malfeasance in office.” The Office would therefore be an “independent agency,” which is a term typically (at least in the U.S.) referring to an agency whose leaders have this sort of for-cause removal protection. But most U.S. independent agencies are headed by a multi-member commission, rather than a single director. (This is true, for example, for the National Labor Relations Board and the Federal Communications Commission.) The commissioners at such agencies typically serve staggered terms and make decisions by majority vote. It’s rare for an independent agency in the U.S. federal government to be headed by a single director rather than by a commission. (The most notable exception is the Consumer Financial Protection Bureau—perhaps not coincidentally an agency based on a proposal by Senator Warren.)
While there is much to be said in favor of Senator Warren’s proposed Office of Public Integrity, this leadership structure is a mistake. While it makes sense for an agency devoted to enforcing ethics rules and fighting corruption to be independent from the President, it would be better for such an agency to be governed by a multi-member commission rather than a single director.
There are three reasons for this:
- First, while an anticorruption agency needs to be independent, it also needs to be sufficiently accountable—especially an agency, like the proposed Office of Public Integrity, that would wield broad regulatory and investigative powers. It’s not hard to see how allegations of ethical violations could become partisan. A single Director might be too reluctant to challenge or inconvenience the President who appointed her, even if the President lacks removal authority. Alternatively, because the Director may outlast the term of the President who appointed her, that Director could subject the next President—perhaps of a different party—to excessive and unfair scrutiny. On a multi-member commission, the commissioners can serve as a check on one another, lowering the odds that a rogue commissioner would either corrupt the agency or bow to political influence. (Nonetheless, the commission should have an odd number of members in order to avoid the stalemates on important matters that have afflicted some commissions with evenly divided membership, such as the Federal Election Commission. That problem might be addressed by making commissioners ineligible for re-appointment, which would mean they wouldn’t feel the need to curry favor with the President for re-appointment.)
- Second, a multi-member commission would help ensure continuity across administrations. If the agency is headed by a single Director, then the President who appoints a new Director could drastically change the Office’s direction, focus, and priorities. Certain regulations or policies in place one year could be repealed the next year. A commission composed of multiple members with staggered, overlapping terms would allow a given President to appoint one or two members, who alone may be sympathetic to the President’s agenda, but would be less able to dictate policy changes. Further, while an agency with a single Director might be more efficient, continuity should be prioritized over efficiency in the anticorruption and ethics context. There may be some policy areas where it makes sense to allow the sitting President to put her “stamp” on agency policy, but anticorruption is not one of them—policy changes should reflect the views of ethics experts across administrations, and should be relatively stable.
- Third, a multi-member commission would provide a broader range of expertise, which would be helpful given the broad range of responsibilities vested in the Office of Public Integrity as envisioned by Senator Warren’s bill. Disciplining a corrupt prosecutor requires a different skillset and background than overseeing a FOIA compliance, for example. The commissioners of many existing independent agencies have certain subject-matter expertise, but often in one subject. For example, commissioners of the Commodities Future Trading Commission are required by Congress to have “demonstrated knowledge in futures trading or its regulation, or the production, merchandising, processing or distribution of one of more of the commodities or other goods” and “seek to ensure that the demonstrated knowledge of the Commissioners is balanced with respect to such areas.” Additionally, as then-Judge Kavanaugh has argued, multi-member agencies benefit from diverse perspectives, and will tend to make better-reasoned and less extreme or idiosyncratic decisions.
On balance, a multi-member structure would help justify the stronger enforcement tools given to the Office of Public Integrity, while also allowing that agency to maintain the independence necessary for it to function effectively. While many of Senator Warren’s proposals are laudable, this is one element of her bill that should be changed.