An update on doings of a crucial federal agency almost no one ever heard of

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President Biden recently appointed four new members to the 10-member council of the Administrative Conference of the United States. The conference is not an agency widely known to the public. So for an update, the Federal Drive with Tom Temin  turned to the chairman, Andrew Fois.

Interview transcript:

Tom Temin: ACUS is really crucial because it has so much to do with individuals and companies interactions with the government, but a little civics lesson here. To start with, the 10 member council of the ACUS and then you also have a more than 100 member membership. Tell us how the whole structure works.

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Andrew Fois: Sure, this was established by statute back in 1968, and then reauthorized in 2010. And the structure is you start with my job of the chairman. I am presidentially appointed by President Biden and Senate confirmed and I’m the only one at ACUS in that category. I’ve been here since May. So it is my sixth month. I succeed tremendous chairmen, like Paul Verkuil and Antonin Scalia was actually chairman of ACUS before he became a judge, then under the chairman, there’s the council. It’s 10 members plus the chairman, so 11. Altogether, it’s a mixture of government members and what we call public even though they’re in the private sector members. The President appoints them, but no Senate confirmation is needed. Some of the duties of the council are to approve the subjects that we pursue with our consultants and staff to make recommendations that come from those subjects to the full assembly, to approve new voting members of the assembly that I recommend and to also give an approval for the budget that we submit to the administration and to Congress.

Tom Temin: So it sounds as if the council sets the agenda, but the entire assembly actually votes on what comes out of the ACUS itself?

Andrew Fois: That’s right. Yeah, the voting members of the assembly are 100 people plus again, me so 101. Forty of them, no more than 40 can be from the government sector. So we get general counsel’s and deputy secretaries, sometimes they appoint other people to cover it. And then the rest of the voting assembly comes again from the private sector from a lot of academics who study and are expert in administrative law, and also a nice group of private practitioners, lawyers who practice with the agencies that we’re trying to help. Then on top of that non-voting, we’ve got about 100, more people who have usually been members and become senior fellows or special counsels. The man who was acting chairman before me is now one of our special counsels, and liaisons who don’t vote. But when we further our contact with the government, and with the lawyers, administrative law organizations to get their advice they’re allowed to speak in committees, they are allowed to speak at the assembly, but they don’t vote.

Tom Temin: And is there a general I guess, gestalt, for the Administrative Conference, that there is a need to maintain fairness with how the government deals with people in the context of what I guess there’s a founding philosophy of the country, that government is limited into how much it can reach deeply into people’s private affairs and into their bank accounts?

Andrew Fois: Absolutely. Fairness is one of our bye words around here. We try to make proposals and recommendations and studies that increase the fairness of particularly the adjudication process, where people are corporate entities or small businesses find themselves basically on trial for violating this regulation or that regulation. And to put in a few words, what we do and what our motto is around here is we try to help make government work better. It really is as simple as that. And we look for improving the effectiveness and the efficiency. And as you say, the fairness of the government across the board. And when we make recommendations, we then seek to implement them. Because you know, it doesn’t do a lot of good if we’re shouting into the wind, and no one is listening. We have pretty good record over the years of Congress and the judiciary and the executive agencies, implementing what we recommend. Other themes for us are transparency, and accessibility. We’re working hard now on a couple of recommendations for the December assembly that really emphasize those themes.

Tom Temin: We’re speaking with Andrew Fois. He’s chairman of the Administrative Conference of the United States. And before I get to my next question, tell us a little bit about what is on that agenda coming up. What are you going to be taking up?

Andrew Fois: Sure, we’ve got a committee process that we’re just finishing up now. We have five committees and all voting members are assigned to a committee. The recommendations themselves start with a project origination idea. They refer to consultants, we hire consultants to work with our staff to produce the first report that goes to committee, then to the council and then to the assembly. So we’re right now in between the committee and the council process. Things we’re working on right now include a study of enforcement manuals, those manuals, papers, documents that tell internal players in the agency and the public what the enforcement policy and procedures are. Some agencies have them some don’t. We’ll be making a recommendation as to whether agencies should have them and if so, how they should write them how they should make them available, how they should be fair, that sort of thing. Then on the theme of public availability, we’re trying to shed some light on settlement agreements. Just like in the courtroom system, the majority of enforcement and adjudication cases that agencies bring are settled far short of any evidentiary type of hearing. And those settlements are usually not public. We’re going to make a series of recommendations to reverse that and try to make those settlement agreements more public. And the third thing we’re doing is a little bit legal. It’s what use should decisions of an agency be applied in the future as precedent? So if you’ve got a case that has been decided before, and now I’ve got a case before me, that’s pretty much the same thing? Can I use that prior case as a way to guide me in this case, and it’s complex because a lot of people throughout the agency make decisions on cases, not just administrative law judges. So you have to kind of parse through the decisions and see what should be precedential? And what should stand on its own.

Tom Temin: Yes, because besides administrative law judges, several adjudicative of types of agencies have a different class of person that sounds similar, but they’re very different. And that’s administrative judges. And sometimes there’s an overseeing body above them that looks at whether cases are precedential, or simply a rehash of something that happened before.

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Andrew Fois: Right. Sometimes even the secretary makes the final decision. So there’s a lot to it.

Tom Temin: And how does the Administrative Conference kind of steer clear of the politics because sometimes policy changes, so rapidly toggling between administrations, I’ll just give you one example. There’s a rule now from more of a executive order from the Biden administration. And it was extant during the Obama administration, taken away by the Trump administration, taken away prior to that by the George W. Bush administration, and that is simply when one contractor wins an award away from an incumbent contractor to an agency, should the new contractor have to hire the people from the old contractor? Right now they are required to hire, a huge burden and it may be that the government took the new contractor on because it didn’t want those people from the old contractor, that type of thing comes up, and it varies by the party and power. How does ACUS stay clear of all of that?

Andrew Fois: Well, coincidentally, it’s funny you pick on contractors, because we in June, at our last meeting, we issued a recommendation on how the government should use and work with contractors. So we’ve been in that space. But as to the politics and changes of policy, one of the important things about ACUS from the chairman to the staff is that we do everything we can to stay nonpartisan, not even bipartisan, nonpartisan. Now that translates into bipartisanship as a practical matter. We don’t let ourselves be swayed by the politics, are the changes one way or the other? If it’s a good change, doesn’t matter who issues that. If it’s a bad change, and the other policy was better than if we look at it, that’s what we’ll say. And I think a lot of our credibility and a lot of our ability, we you know, we have no direct power to implement anything ourselves, we have to convince other people with the quality of our arguments. And I think we have a lot of credibility by being nonpartisan. We have Republican appointed council members, President Biden just appointed a bunch of council members. They have three year terms, and maybe they’ll be appointed by different Republican presidents. So that’s how we handle the politics of it.

Tom Temin: Now, you were a deputy attorney general, you worked for a couple of administrations. Is this a slower pace? Is it exciting compared to being at that level in the Justice Department?

Andrew Fois: Yeah, well, I loved that job in the Justice Department. And working with Janet Reno, it was an inspiring time. This job I thought, frankly, was going to be a little bit that way. Was going to be a little bit slower than what I was used to, but turned out not to be the case. Even though we have a small staff here about 15 people, we really punch above our weight, I think and we’re constantly generating new ideas, working on recommendations in tremendous detail. We have committees on councils and assembly who you know, parse every word to get it just right. I’m making some changes, not major ones, but I have to always keep an eye on staying funded and continuing our support on both sides of the aisle on the Hill and with the administration. A lot of things have been put in place and a lot of people who don’t need changing. So the second thing I’ve found that I do is I try not to do any harm, or the Hippocratic Oath of ACUS, to continue the quality work that we’ve produced. I’ve been working on us becoming a go-to spot for case law and for legislative activity. So if the public or practitioners want to know what the latest cases are in certain subjects, they can turn to us and find it or what the Hill has been up to. And I’ve been putting a particular emphasis on implementation, project origination, get making them more institutionalized rather than, you know, every six months hoping we come up with projects, and Congressional relations and communications are, I think, important to get out the word of what we do.

Tom Temin: And there’s a couple of products that have been out for a while. And I was just wondering any chance that you’ll be reviewing those and renewing them and maybe give us a sense of the take up of them. One is the Sourcebook, which is kind of an encyclopedia, if you will, of everything that goes on in the government. And then there’s the adjudication database. I think that’s a cooperative agreement with Stanford University, anything new on those?

Andrew Fois: They’ve been very popular, and we’re pleased with that, and that they’re useful, rather than sitting on the shelves. The Sourcebook is pretty stable. You know, the government doesn’t change that much in terms of agencies and how they get filled. But we do use it. I just used it the other day at the Justice Department in helping to move someone, a lawyer in the civil division is working on an appellate case that pertains to ACUS. And the database is also very popular. But that’s something we’ve got to keep populated and keep updating. And we’re on top of that.

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Tom Temin: And I guess my final question is rulemaking, and there was a gambit to overhaul rulemaking a couple of years ago, and it seemed to have disappeared. What’s going on with respect to review or possible updates to federal rulemaking, which at the time was described to me as the gold standard for open governments throughout the world?

Andrew Fois: Well, that’s a great place to be. I think you’re right. Other countries look to our process, because it is so thorough, and it is so open and it strives for fairness, and treating everybody equally. I’m familiar with the impetus a few years ago for major reform of the rulemaking process. But as the Congress has been constituted in the last couple of years, there really hasn’t been a lot of agreement on which way to head so that has stalled a bit. Maybe who knows in the next Congress when we can revise it. But we keep our eye on rulemaking, we again in June issued a recommendation about how to improve agencies giving notice to the public of changes in their regulatory process, which of course requires public notice and comment. So we’re hoping to work with agencies to get them to improve making their regulatory changes known to the public and to the regulated entities.

Tom Temin: But if the makeup of Congress changes, why would that affect what ACUS does, if rulemaking itself needs a good look at?

Andrew Fois: My point is that we don’t have the authority to legislate. We can’t reform the regulatory process writ large. We will have, as I said, discreet recommendations about the rulemaking system, which we communicate to Congress regularly, but Congress has the ball in its court for any legislative change.

Tom Temin: Andrew Fois is chairman of the Administrative Conference of the United States.

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