Appointment Delay for Vacancies on the Federal Communications Commission(*)

Nixon, David C., Public Administration Review

Partisanship and Confirmation Delay

On September 19, 1952, Robert Jones, a Republican, announced his retirement from the Federal Communications Commission (FCC). Less than a month later, President Truman granted a recess appointment to Eugene Merrill, a Democrat, and forwarded the nomination to the Senate. However, the Senate never took action on Merrill's nomination, and after Eisenhower took office the nomination was withdrawn. Eisenhower nominated John Doerfer, a Republican, to fill Jones' seat. Following Doerfer's confirmation in April, 1952, Merrill stepped down.

Few informed FCC observers would disagree that if Eugene Merrill had been quickly confirmed by the Senate in October 1952, FCC history would have been very different. Rather than Doerfer providing a 3-1-3 partisan parity on the commission, Eisenhower would have taken office one step behind in the appointment game, facing a 4-1-2 Democratic majority on the commission. Doerfer was eventually designated by Eisenhower as chairman of the FCC during an explosive and controversial era in broadcasting. It was Doerfer who testified before an incredulous House subcommittee that rigged quiz shows neither violated the law nor required or even merited investigation by the FCC.(1) During his interim service on the commission, Merrill played a deciding role in the controversial ABC-Paramount merger, perhaps the most important case of the decade.(2) Had Doerfer occupied the seat earlier, he likely would have turned the majority to establish a more hands off policy on mergers. By late 1953, Doerfer occupied the seat when the commission decided a multiple-ownership case involving Starer Broadcasting.(3) While the outcome of the Starer opinion did not hinge on Doerfer's vote, the new commissioner's interaction with Starer led to a major conflict-of-interest scandal at the FCC, requiring Doerfer's resignation in 1960.

Consequential appointment delay, such as the failure to fill the Jones vacancy, is actually quite common at independent agencies, where the small number of commissioners and statutory restriction on partisan membership make each seat critically important. Yet, practically no one has examined the phenomenon in depth. Under what conditions will the president and Senate fail to fill a vacancy in a timely fashion? These conditions, by definition, affect the voting and opinion-writing dynamics on independent commissions. They may also affect the efficient and effective function of such bodies. Ultimately, they may change the course of an agency by terminating one nomination in favor of a very different candidate. This lack of scholarly attention is ironic, given the very broad discretion afforded to independent agencies, coupled with the near certainty among political scientists that ideological predispositions explain a great deal of the variation in votes by commissioners (Chang 1997; Moe 1982; Snyder and Weingast 2000). A politician who wins confirmation for an ideologically compatible commissioner has probably gone a long way toward ensuring the agency will establish ideologically acceptable policies. Likewise, a politician who successfully defeats an ideological opponent has probably guaranteed that the next nominee will be more acceptable. Knowing who succeeds in the appointment game goes a long way toward explaining who controls the bureaucracy--an enduring issue in the literature (Ferejohn and Shipan 1990; Hammond and Knott 1996; Moe 1982; Wood and Waterman 1994).

On the surface, appointments to independent agencies appear almost entirely consensual. Roughly half of all commissioners, when their terms are due to expire, are renominated and easily confirmed. Informal negotiating mechanisms and the lack of senatorial courtesy for most agency appointments make contested roll call votes for confirmation extremely rare. Presidents have obtained confirmation for their formal nominees in well over 95 percent of cases. Much of the conflict over appointments occurs behind the scenes during informal negotiations.

The backlog of appointment vacancies under the Clinton administration generated an unprecedented degree of attention, and it was widespread across institutions. As the media coverage attested, Clinton and the Senate had difficulty agreeing on appointees for ambassadorial posts, independent commission seats, lower court judgeships, and even executive posts. Indeed, media attention to appointments, televised hearings, and rising interest group involvement in the confirmation process have all been identified as possible causes of the appointment "crisis." Other plausible explanations include a growing recognition of the political importance of federal appointees and increased partisanship in Washington. Divided government and presidential aspirations of crucial legislative players are the most often-cited explanations in journalistic accounts.

While studies of independent-agency confirmation are limited, there is a wealth of qualitative and quantitative literature on judicial confirmation politics--especially at the Supreme Court level. Studies of the Clarence Thomas confirmation battle, for example, are literally too numerous to list. While the focus of their argument was minority constituency effects in the Thomas case, Overby et al. (1992) clearly demonstrate that the confirmation votes of individual senators were primarily determined by partisanship. Partisanship and ideology have been shown to be the dominant factors in confirmation votes cast by senators for the entire collection of Supreme Court nominees (Cameron, Cover, and Segal 1990; Segal, Cameron, and Cover 1992), as well as for a wider array of prominent nominations between 1965 and 1994 (Krutz, Fleisher, and Bond 1998).

Building on this finding, there is evidence that delay of the confirmation vote is explicitly pursued by the president's opponents in the Senate, both for Supreme Court (Cameron and Segal 1998) and executive-agency nominations (McCarty and Razaghian 1999). Cameron and Segal examine Supreme Court confirmation duration with regard to the politics surrounding scandals. They measure the duration of confirmation, presence of scandal, and roll call margins for all Supreme Court nominations for 1877-1994. Regardless of the basis for opposition to a president's nominee, the principal tactic of opponents was to delay and search for possible scandals in the nominee's background. Furthermore, although scandals did degrade support for the president's nominee among the president's allies, the most significant effect of an uncovered scandal was to galvanize opposition among the president's partisan opponents. In rare instances, delay tactics were sufficient to defeat the nomination. The authors demonstrate that the degree to which the Senate effectively delays the confirmation process, as indicated by the length of time a nominee remains unconfirmed, is significantly related to the size of the president's opposition in the Senate.

McCarty and Razaghian (1999) demonstrate that delay of confirmation for appointments to executive agencies is significantly related to the size of the president's opposition in the …

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Publication information: Article title: Appointment Delay for Vacancies on the Federal Communications Commission(*). Contributors: Nixon, David C. - Author. Journal title: Public Administration Review. Volume: 61. Issue: 4 Publication date: July 2001. Page number: 483. © 1994 American Society for Public Administration. COPYRIGHT 2001 Gale Group.

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