The expression “personnel is policy” has become a truism in Washington.
Yet our understanding of how the political branches use appointments to project influence into the administrative state is incomplete. This Article leverages data on almost one-thousand commissioners serving on eleven major independent regulatory commissions to chart, for the first time, Congress’s growing practice of placing former legislative-branch personnel onto these entities. We then theorize that this phenomenon is rooted in fundamental changes in American politics in recent decades— and, in turn, that it has deeply affected administrative law and separation of- powers dynamics.
Over the past several decades, the number of commissioners with prior service as a lawmaker or congressional staffer increased almost fourfold. Paradoxically, this sea change occurred during a period in which, according to conventional wisdom, Congress’s influence over administration declined. We contend that, faced with a set of worsening pathologies in Congress, lawmakers turned to appointments to influence policy making.
At the same time, congressional atrophy and an increasingly rocky confirmation process combined to make executive posts more attractive to Hill staffers than to others.
Brian D. Feinstein & M. Todd Henderson,
Congress’s Commissioners: Former Hill Staffers at the S.E.C. and Other Independent Regulatory Commissions,
Yale J. on Reg.
Available at: https://digitalcommons.law.yale.edu/yjreg/vol38/iss1/3