Kavanaugh's Threat to Government Transparency and Accountability

by Daniel Farber

July 19, 2018

This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court.

Presidents control crucial government agencies with authority over the environment, food and drug safety, and workplace conditions. Through various environmental, health, safety, and other laws, Congress has given these agencies broad authority to issue rules and regulations that affect the lives of every American. But current law provides safeguards against arbitrary decisions – safeguards that Judge Brett Kavanaugh would weaken or eliminate if confirmed to the U.S. Supreme Court.

These safeguards are designed to promote public input and force agencies to disclose their evidence and reasoning to public scrutiny. Agencies must disclose proposed rules, obtain public comment, and then provide explanations of their decisions. As interpreted by the courts, this means an agency has to provide enough information to allow substantive comments, and it has to give a reasoned explanation for its decisions. But Kavanaugh seemingly wants to give agencies much more ability to hide the ball. 

In a case called American Radio Relay League v. FCC, Kavanaugh advocated radical surgery on current safeguards. Briefly, the case involved a Bush-era FCC approval of a promising new technology for using power lines to supply broadband internet, which could result in radio interference. Based on studies by its staff, the FCC decided that a few simple precautions would prevent any serious interference. But it didn't release the studies until it was sued under the Freedom of Information Act. And even when its decision was being reviewed by a court, it held back the portions that weren't in its favor. Kavanagh thought this was just fine. In his view, an agency shouldn't have to give any advance notice of its evidence. And even in court, he would allow it to cherry-pick what evidence goes into the record. Talk about "secret science"!

Kavanaugh was also willing to let the agency short-circuit its explanations and analysis. With regard to one key issue in the case – how quickly the radio interference decreased with distance from its source – the FCC simply borrowed a number that fit earlier technologies, even though opponents of the rule offered evidence that the technology in question was different. The FCC brushed off this evidence, saying only that it wasn't conclusive enough. The lack of serious analysis was fine with Kavanaugh because FCC was making a "highly technical determination committed to the Commission's expertise and policy discretion." So, he thought, it was fine to rely on glib generalities with no real analysis.

Kavanaugh argued that the current law has made rulemaking cumbersome and slow. He complained that procedural safeguards hampered quick changes of policy due to new circumstances or changes in control of the White House. No doubt the rulemaking process could be streamlined. But Kavanaugh wanted to throw out the baby, the bathwater, and the tub, replacing a regime of public dialogue and reasoned decision-making with one of executive fiat.

Kavanaugh's approach could transform the process of rulemaking across the executive branch. Adopting his approach could undermine public participation in decisions affecting the health, safety, and environment of millions of Americans. It would allow agencies to cherry-pick the evidence that supports their actions while ignoring the rest and would free them from subjecting their analysis to serious public scrutiny. We cannot afford to follow his lead and jettison crucial transparency and accountability protections.

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Daniel A. Farber is the Sho Sato Professor of Law and Director of the California Center for Law, Energy and the Environment at the University of California, Berkeley.

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