Regulatory Brainstorming

by Former State Commissioner

Nice essay. My biggest plea to my staff when I was a regulator was to at least “think about what issues this filing raises” and point them out to us. I told them I wasn’t as interested in the end result as I was in evidence that they had thought about the competing issues before drafting an entry approving (or disapproving) the application before them. 

Too often I found the system was more focused on the process of moving paper in a rote way. There wasn’t even much of a talent, much less a reward for “thinking about it.” Plus, commissioners both at the state and federal level usually get packets of orders to sign with no evidence of the thought processes or issues and alternative dispositions of the case that might arise as a result of the facts of the particular case.  And, of course, commissioners do what they are supposed to do…they sign the rote orders without necessarily reading the briefs, hearing the parties or getting a briefing from staff on issues they should think about before they sign…

I think it would be really instructive to do a survey or [obtain] anecdotal evidence of what information a commissioner actually receives before he or she signs an order. I’m sure the world would be shocked at how little they do get and how it's spoonfed by a system focused more on timely case processing than on considering alternatives and the implications of that case on other cases. Might be an interesting survey/article for the future for you.