R.I.P. A.C.U.S.

by William Funk
Professor, Lewis and Clark Law School
Editor, Administrative and Regulatory Law News

On September 13, 1995, a House-Senate conference committee voted to terminate funding for the Administrative Conference of the United States (ACUS). This action may have saved $1.8 million a year, but it eliminated the only federal agency chartered specifically to ensure that federal agency programs are administered fairly, efficiently, and effectively. This "penny-wise, pound-foolish" decision was made despite entreaties on behalf of the Conference from such bipartisan sources as: Justices Stephen Breyer, a Conference member, and Antonin Scalia, a former Conference Chair; Senators Orrin Hatch, Charles Grassley, Carl Levin, and John Glenn; former White House Counsel C. Boyden Gray; David Vladeck, director of the Public Citizen Litigation Group; President Reagan's budget director, James C. Miller; and OMB Director Alice Rivlin. Given until the end of October to wind up affairs, the Conference, its staff, and its accumulated expertise is now spread to the winds.

Little known "outside the Beltway," ACUS was a unique entity. Comprised of between 75 and 101 individuals drawn from agencies, academia, and the private sector, the Conference was classified as both an independent agency and a federal advisory committee. Organizationally, it consisted of a Chair, a Council, and an Assembly. The Chair, appointed by the President and confirmed by the Senate for a five-year term, was responsible for the day-to-day activities and supervision of the 18 permanent staff. The Council, which functioned like a board of directors, consisted of ten members appointed by the President for three-year terms, five of whom were always current senior federal officials. The Assembly was made up of the Chair, the Council, and the other members of the Conference, a majority of whom had to come from government service. All of the members (other than the Chair) served without compensation.

The primary, although not exclusive, function of the Conference was to study administrative processes with an eye to recommending improvements to Congress and the agencies. It performed this function by commissioning studies by law professors expert in the administrative process that then were reviewed by one of six standing committees: adjudication, administration, governmental processes, judicial review, regulation, and rulemaking. The recommendations developed by committees of the Conference would be considered for adoption by the Assembly in plenary sessions, which were typically held twice a year.

The improvements occasioned by the Conferences recommendations are legion. Inasmuch as the Conference never had the power to impose its recommendations on unwilling subjects, the fact that so many of its recommendations bore fruit is a testimony to their intrinsic sense. Some, like the Conference's recommendation in 1968, its first year of operation, to eliminate a jurisdictional amount in suits under the APA, were followed by Congress in passing new legislation. Another example is its recommendation to provide administrative penalty authority to agencies to increase the effectiveness of agency enforcement activities at lower cost, first proposed by the Conference in 1972 and since adopted by Congress in over 200 statutes. A third is its 1980 recommended solution to unseemly races to the courthouse in rulemaking appeals, adopted by Congress in 1988.

Other recommendations, like the Conference's early recommendation to eliminate the exemption from the APA's notice-and-comment requirements for rules relating to public property, loans, grants, benefits, and contracts, were sufficiently influential to lead agencies to adopt the recommendations on their own. Its recommendation in 1988 on Presidential Transition Workers' Code of Ethical Conduct were used by President Bush as the basis for his transition standards of conduct, and the Clinton administration likewise followed what had become standard procedures. From 1968 to 1995, the Conference issued approximately 200 recommendations, most of which have been at least partially implemented.

Probably the area in which the Conference had its greatest influence was in introducing and supporting the use of alternative dispute resolution techniques in agency practice. Its recommendation in 1982 provided procedures by which agencies could negotiate proposed regulations, and it followed the recommendation with support and encouragement to agencies to experiment with this new technique. Ultimately, Congress adopted the Negotiated Rulemaking Act in 1990, virtually copying the procedures contained in the Conference's original recommendation. Similarly, in 1986 the Conference issued the first of some fifteen recommendations on using alternative means of dispute resolution in agency adjudications. In 1990 Congress again followed the Conference's lead and enacted the Administrative Dispute Resolution Act. Recognizing the Conference's leadership role in this area, that Act gave the Conference the principal role for coordinating and promoting ADR in the federal government.

Another area in which the Conference had a major influence involved its study of Presidential review of agency rulemaking undertaken during the Reagan administration. This was a subject that had the potential to become highly partisan, but the Conference's reputation for neutrality and expertise enabled it to review the practice, generally validate its exercise, and makes certain recommendations to improve its openness and public acceptability. Because of the Conference's track record of useful and expert studies of the administrative process, all the regulatory reform bills considered by the Senate in the last session included provisions for the Conference to study the effects of the legislation.

The Conference's contribution to administrative law and procedure was not limited just to studies. Drawing on its expertise, ACUS issued numerous publications designed to assist agencies in their administrative processes. For example, in 1972 the Conference published the first edition of its Manual for Administrative Law Judges (now in its 3d edition); in 1978 it published its Interpretive Guide to the Government in the Sunshine Act; in 1981 it issued Model Rules for Agency Implementation of the Equal Access to Justice Act. The latter two of these documents were responsive to Congress's requirement for agencies to consult with the Conference in implementing these statutes. In addition, the Conference has published sourcebooks on Federal Administrative Procedure, Negotiated Rulemaking, and Alternative Dispute Resolution, as well as the Guide to Federal Agency Rulemaking.

Finally, in recent years, following the collapse of the Soviet Union, Congress authorized the Conference to lend its expertise to newly emerging democracies in their creation of administrative law and procedures. As a result, the Conference sponsored seminars in the Ukraine, Hungary, the People's Republic of China, and South Africa.

The ABA has long been a strong supporter of the Conference, and over the years the Conference and the Section on Administrative Law and Regulatory Practice have enjoyed a close and mutually supportive relationship. Many Section Chairs have been active ACUS members, and two Conference Chairs (Jerre Williams and Antonin Scalia) have also chaired this Section. Three other ACUS Chairs have been Section Council Members (Robert Anthony, Reuben Robertson, and Marshall Breger). Jeff Lubbers, the longtime Research Director of the Conference, has been very active in the Section, serving as Rulemaking monitor, Secretary, and currently Council Member. The Section will miss the Conference greatly and hopes that before long it will be reestablished.