Appointment Delay for Vacancies on the Federal Communications Commission

• Author: David C. Nixon
• DOI: http://doi.org/10.1111/0033-3352.00051
• Published date: 01 July 2001
• Date: 01 July 2001

Appointment Delay for Vacancies on the Federal Communications Commission 483

David C. Nixon

Georgia State University

Appointment Delay for Vacancies on the

Federal Communications Commission*

Confirmation politics for judicial appointees is an exhaustively studied phenomenon, but the poli-

tics of appointment for independent agencies is less well understood, because nominees are very

rarely rejected and the Senate fails even to hold a recorded vote for most appointees. However,

alternative evidence of conflict between the president and the Senate is available: the length of

time it takes to fill a vacancy on a board or commission. An empirical assessment of FCC vacan-

cies, based on an exponential regression model of vacancy duration, demonstrates that statutory

restrictions on the partisanship of the board significantly deteriorate the efficiency of the appoint-

ment process. In addition, the appointment of minorities (though not of women) occurs only after

unusually drawn-out appointments. A straightforward test of whether divided government leads to

extended vacancies turns up negative.

*The data for this project was collected as a pilot for the National Sci-

ence Foundation project SES 00-95962, and is publicly available along

with the appointment and biographical data for 14 other independent

agencies at http://www.gsu.edu/~wwwirc.

David C. Nixon is an assistant professor of political science at Georgia State

University. He specializes in American political institutions.

Partisanship and Confirmation Delay

On September 19, 1952, Robert Jones, a Republican,

announced his retirement from the Federal Communica-

tions Commission (FCC). Less than a month later, Presi-

dent 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 nomina-

tion was withdrawn. Eisenhower nominated John Doerfer,

a Republican, to fill Jones’ seat. Following Doerfer’s con-

firmation 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 dif-

ferent. 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 broad-

casting. It was Doerfer who testified before an incredu-

lous 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 commis-

sion, 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 occu-

pied the seat when the commission decided a multiple-

ownership case involving Storer Broadcasting.3 While the

outcome of the Storer opinion did not hinge on Doerfer’s

vote, the new commissioner’s interaction with Storer led

to a major conflict-of-interest scandal at the FCC, requir-

ing Doerfer’s resignation in 1960.

Consequential appointment delay, such as the failure to

fill the Jones vacancy, is actually quite common at inde-

pendent agencies, where the small number of commission-

ers and statutory restriction on partisan membership make

each seat critically important. Yet, practically no one has

examined the phenomenon in depth. Under what condi-

tions 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 effec-

tive function of such bodies. Ultimately, they may change

the course of an agency by terminating one nomination in