As the Congress considers legislation to create a Consumer Financial Protection Agency, jurisdictional conflict in the House between the Financial Services and Energy and Commerce committees once again raises the question of how to structure the leadership of an important Federal regulatory agency.
There are two principal options: a single agency head, or a multi-person commission. A long history of experience suggests that a regulatory agency is better managed and more productive if it has a single head who can lead effectively. A study panel of the National Academy of Public Administration concluded that "To the extent that management needs dictate the form of leadership, it is strongly advocated that a single commissioner be appointed and the use of a board be avoided as neither necessary nor desirable."
The counter argument is that a multi-person commission might bring more diverse views to the table and produce more balanced decisions. But no regulatory agency ever invented has lacked for diverse views, and in fact an agency may often be inundated by them. Diverse views best derive not from individual commission members but from powerful tools such as public hearings and notices of proposed rulemaking that solicit public opinion and ensure that agency staff considers and analyzes a multiplicity of views. Most regulatory issues are complex; often very technical and competent analysis will be called for, regardless whether a single head or a multi-person commission governs the regulatory agency.
Multi-person commissions are also more prone to political paralysis. Politics being what it is in Washington, the two major political parties will almost inevitably compete to capture seats for a majority of the commission. This often happens. It introduces highly disruptive conflict into the process of leadership selection, without respite. Each future appointment can trigger a new political competition, with little public benefit from the friction. This causes confusion and uncertainty within the agency itself and tends to spill over to the President and Congress, as partisans jockey for appointment. When seats become vacant, delay in appointing or confirming new commissioners can bring the agency's work to a halt for want of a working quorum.
Additionally, with a multimember board, staffers can also be pitted against one another as board members seek to enlist them to take one side or another of a particular issue. Such conflict damages an agency as commissioners and their staff supporters sharpen arguments to score points rather than to reach a reasonable resolution.
A single agency head has a far greater chance of leading the new agency rapidly and productively than does a multimember board. With a single agency head, the political leadership can concentrate on selecting a single person for qualities of knowledge and leadership -- rather than fight a multi-pronged battle that hinges on political loyalty. Strong - rather than divided - leadership will also help the consumer agency move quickly to build strong public confidence and a strong public constituency in its first few years. Even assuming that members are promptly appointed and confirmed, a multimember board is likely to move more slowly in establishing the agency and making needed decisions promptly. Positive public reaction and a sense of regard for the agency's activities in its first few years are critical; stalemate would simply destroy that acceptance and undermine the agency's support for years to come.
In today's climate of growing public dissatisfaction with the financial crisis and its consequences, surely the Congress and the President both will want to create an agency that really works.
Charles F. Bingman, formerly of the Johns Hopkins University Washington Center, is a fellow a the National Academy of Public Administration.