Sunday, June 15, 2003

Rights & Reason: The Star-Chamber Mentality

John Samples of Cato has an excellent column in today's Washington Times on the subject of administrative agency abuse:
The Star Chamber Court of England stands as a symbol of arbitrary government. It operated outside the normal processes that guarded the liberty of an English subject even under the monarchy. Eschewing trial by jury, the Star Chamber arbitrarily imposed punishments like imprisonment, fines, the pillory, whipping, branding and mutilation. Parliament closed the infamous institution in 1641 but the memory of its misdeeds should never die.

In 1983, the chairman of the ABA's Administrative Law Section in congressional testimony likened the Federal Election Commission to the Star Chamber Court. The ensuing 20 years have shown the accuracy of that depiction.

The FEC oversees the regulation of American elections. No task could be more central or potentially more dangerous for a nation dedicated to self-government and the rule of law. If abused, the power of the FEC could be used to punish Americans who seek to participate in politics. Critics of the agency will scoff and say the FEC is a "toothless tiger" that is too gentle on those charged with violating election laws. If only that were true.

Defendants before the FEC have few due-process safeguards. When a complaint comes before the FEC, its general counsel makes the case against the alleged lawbreaker who has no right to appear before the commission. The general counsel gives the commission a report that summarizes and criticizes the legal arguments of the accused and answers any questions from the commissioners. This report is not given to the accused even though it may contain new arguments or information. The accused also has no right to see the documents that were the basis of the general counsel's case. The FEC does not have to reveal the witnesses against a defendant, or allow that defendant to attend witness depositions, much less provide an opportunity for cross-examination.

The FEC has long said that the normal rights accorded Americans should not apply at its agency because if an enforcement action were taken to federal court, the normal rule of law standards would apply. That is strange reasoning indeed. An enforcement agency whose work implicates vital rights should be free to ignore the rule of law during a protracted investigation because a court might later honor the rights of a citizen? This justification for exempting the FEC from the rule of law suggests the agency is arrogantly out of control.
Administrative agencies that combine regulatory and judicial functions—the FEC, FTC, and FCC, to name a few—are inherently unconstitutional. Not only do such agencies violate the Constitution's separation of powers by, in essence, combining the executive, legislative, and judicial powers of government, but as Samples eloquently describes, the very nature of agency proceedings compels regulators to ignore due process rights. No agency could function if it had to actually adhere to the standards of the independent judiciary.

The political culture has obviously become accustomed to this unconstitutional form of government-by-Star Chambers. What's more appalling is how the so-called academics—like the beloved Judge Richard Posner—have bought into this. Pragmatists like Posner disfavor reducing the power of agencies on the grounds that it would simply increase the work of the courts, and that agencies composed of "experts" are far better suited toward regulatory matters in the first place. This philosophy is rampant within the federal judiciary, most of which (with some notable exceptions) defers to agency judgments as infallible despite evidence to the contrary. For all the talk of judicial activism on the bench, Americans should really be debating the issue of judicial laziness—judges who put the interests of regulators over the constitutional principle of individual rights.

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