Controlling presidential control.

• Author: Watts, Kathryn A.
• Position: II. Three Case Studies from the George W. Bush and Barack Obama Administrations C. The FCC and Net Neutrality: Leveraging Online Media Tools to Publicly Exert Pressure through Conclusion, with footnotes, p. 716-745

3. The FCC and Net Neutrality: Leveraging Online Media Tools to Publicly Exert Pressure

   As a third case study, consider Obama's attempts to influence a recent and very high-profile rulemaking proceeding conducted by the FCC involving the issue of "net neutrality," or how best to protect and promote an open Internet. (236) The FCC initiated its net neutrality rulemaking proceeding in May 2014. (237) The issue received significant public attention after John Oliver addressed the topic on his show Last Week Tonight in June 2014. Oliver urged viewers to "turn on caps lock" and send comments to the FCC, leading the FCC's comment system to crash due to a flood of new comments. (238)

   By the end of the four-month comment period, the FCC received nearly 4 million comments, with most strongly favoring net neutrality. (239) Even though Obama campaigned on the issue of net neutrality, (240) however,

   Obama never filed a comment with the FCC during the comment period. (241) Instead, weeks after the comment period closed, Obama elected to use WhiteHouse.gov as his platform of choice for publicly issuing a written statement and accompanying video that pressured the FCC to "create a new set of rules protecting net neutrality." (242) In his written statement, Obama outlined in some detail the rules that he believed the FCC should adopt pursuant to Title II of the Communications Act, going so far as to include a bulleted list of four special requests for the rules: no blocking; no throttling; increased transparency; and no paid prioritization. (243) In urging the FCC to reclassify consumer broadband service under Title II of the Telecommunications Act, the President called on the public to share the President's plan via Facebook and Twitter buttons prominently featured on WhiteHouse.gov. (244)

   In his public statement, Obama expressly acknowledged that "[t]he FCC is an independent agency, and ultimately this decision is theirs alone." (245) This is notable: although presidential attempts to influence executive agencies like the EPA have become commonplace, presidential efforts to so directly influence independent agencies are less common. (246) Thus, critics of the President's plan quickly asserted that Obama had improperly called into question the FCC's reputation as an independent agency. One former FCC commissioner, for example, asserted that Obama's actions represented an "unwelcome assault on the independence of the FCC" and a "threat to our entire system of government based on the rule of law." (247) Others argued that the President had "injected politics into what should be a nonpartisan agency process." (248) Indeed, one commentator noted that Obama had put the chairman of the FCC in a "very tough" position because, if the FCC had followed the President's recommendation, the FCC's decision would "reek of politics, and nobody will get [the smell] off of them." (249)

   A few months later, FCC Chairman Tom Wheeler announced in Wired that he was proposing strong net neutrality rules that aligned with Obama's plan to reclassify consumer broadband service under Title II of the Communications Act--even though Wheeler had not endorsed reclassification prior to Obama's statement. (250) Republican-led House and Senate committees launched investigations into Obama's influence over the FCC's proceedings, reiterating the refrain of inappropriate political influence. (251) The letter that the House Committee on Oversight and Government Reform sent to the FCC, for example, noted concerns that the White House may have had an "improper influence" on the FCC's ongoing rulemaking proceeding. (252)

   Ultimately, in the spring of 2015, the FCC adopted and released new rules that followed the President's preferred path of reclassification, declaring broadband Internet access service to be a telecommunications service under Title II of the Communications Act. (253) The new rules "prohibit blocking, throttling, and paid prioritization"; prevent "broadband providers from unreasonably interfering or disadvantaging consumers or edge providers from reaching one another on the Internet"; and provide "for enhanced transparency into network management practices, network performance, and commercial terms of broadband Internet access service." (254)

   Although the final rule closely tracked what President Obama had asked for, the final rule and the accompanying statement of basis and purpose that the FCC published in the Federal Register said nothing of the President's involvement. (255) In addition, the FCC's Report and Order on Remand, Declaratory Ruling, and Order barely even hinted at the President's involvement. (256) However, Commissioner Wheeler's separate statement accompanying the report briefly acknowledged the President's involvement, stating:

   We heard from startups and world-leading tech companies. We heard from ISPs, large and small. We heard from public-interest groups and public-policy think tanks. We heard from Members of Congress, and, yes, the President. Most important, we heard from nearly 4 million Americans who overwhelmingly spoke up in favor of preserving a free and open Internet. (257) One commissioner, however, called out the President's involvement much more forcefully. In a dissenting statement, Commissioner Pai criticized the FCC's change of course and the President's involvement, stating:

   So why is the FCC changing course? Why is the FCC turning its back on Internet freedom? Is it because we now have evidence that the Internet is not open? No. Is it because we have discovered some problem with our prior interpretation of the law? No. We are flip-flopping for one reason and one reason alone. President Obama told us to do so. (258) Pai is clearly correct that President Obama played a key causal role in the FCC's shift in its approach and ultimate decisions to reclassify broadband. Yet what is much less clear is whether there is anything inherently nefarious about the President's attempts to steer the FCC's net neutrality rules--just as other members of the public tried to steer the FCC's views. (259) Obama's efforts to influence the FCC's proceedings were public and transparent. Obama issued his statement and accompanying video via WhiteHouse.gov, and he openly encouraged members of the public to share his message using social-media tools. (260) Furthermore, Obama's public statement demonstrated respect for the FCC's status as an independent agency, openly acknowledging that the decision ultimately rested in the FCC's hands alone. (261) In this sense, Obama's overt involvement furthers notions of political accountability and transparency, helping the public to understand that the decision rests in the hands of the FCC (262) but making clear that the President is doing what he can to respond to broad public sentiment on net neutrality. (263)

   In sum, these three case studies demonstrate how more overt and transparent forms of presidential control can promote positive values like political accountability, regulatory efficiency, and coherence. In contrast, other more submerged forms of presidential control can taint agency science, push agencies to consider factors that are not relevant under the statutory scheme, and undermine transparency. Yet the most prevalent response to presidential control--that of "expertise forcing"--focuses myopically on the negative attributes of presidential control. The next Part of this Article describes and critiques "expertise forcing," arguing that it is a misguided reaction to the entrenchment of presidential control.

   3. Expertise Forcing: A Pervasive but Misguided Reaction

   The most common response by courts, Congress, scholars, the media, and others when faced with specific instances of presidential control over the regulatory state has been a kind of reflexive "expertise forcing." Rather than using the term expertise forcing to describe some kind of concerted legal tool for responding to presidential control, this Article uses the term to refer to generalized efforts--both inside and outside courts--to try to force regulators to exercise expert judgment based on apolitical, technocratic reasons. This Part argues that expertise forcing is misguided. It focuses too myopically on restraining the negative aspects of presidential control, and in doing so, it fails to consider the beneficial role that political influences might play. Furthermore, it adheres to outmoded notions of agencies as apolitical experts, and it threatens to drive political, policy-laden decisions underground where they are insulated from oversight and scrutiny.

1. The Push for Expertise

   Jody Freeman and Adrian Vermeule first coined the phrase "expertise forcing" in the context of analyzing the Supreme Court's decision in Massachusetts v. EPA. (264) In Massachusetts, the Court reviewed the EPA's denial of a rulemaking petition that asked the EPA to regulate certain emissions from new motor vehicles--emissions that lead to global warming. (265) Justice Stevens's opinion for a five-justice majority held that the EPA has the statutory authority to regulate such emissions and that the various policy-driven reasons the EPA offered for declining to regulate, ranging from a desire to avoid piecemeal regulation to a desire to avoid interfering with the President's foreign-policy initiatives, were not sufficient reasons for denying the petition. (266) Essentially, the Court told the EPA that it needed to make a scientific determination regarding whether the emissions from new motor vehicles do or do not endanger the public health or welfare within the meaning of the Clean Air Act. According to the Court, policy-driven considerations were to factor into the EPA's decision to regulate or not to regulate, if at all, only after the EPA made an expert judgment. (267)

   In light of Massachusetts's embrace of expert-driven agency decisionmaking, Freeman and Vermeule have argued that the case stands as an example of an attempt "by courts...