Intra-Agency Polarization and the Fate of Agency Independence

Abstract

Independent multimember agencies, a staple of the administrative state for more than a century, face existential threats as the Supreme Court prepares to overturn Humphrey’s Executor. Using a new dataset of more than 3,000 votes cast from 1985 to 2024 by commissioners appointed to one of the most structurally independent commissions, the U.S. Consumer Product Safety Commission (CPSC), this Article offers a new empirical analysis showing how partisan polarization has reshaped commission activity. Our findings provide a window into the real-world operations of an independent agency—and, in doing so, offers clues for what might change in a post-Humphrey’s world.

We find that the intra-agency polarization has accelerated over the past two decades. Between 2008 and 2024, unanimous votes at CPSC plummeted, and party-line votes surged by nearly 75%. Partisan polarization is even more pronounced for votes on key decisions, such as rulemakings, investigations and enforcement actions, and public disclosures of critical safety information. Party control of the Commission majority, congressional polarization, and the proportion of former congressional staff on the Commission all relate to levels of intra-commission partisanship. The Commission chair is in the majority for the vast proportion of Commission votes. Moreover, periods of partisan alignment between the chair and the president are also associated with a decreased probability of party-line votes.

Taken together, this data provides evidence that independent agencies (i) increasingly feature partisan-tinged battles; (ii) echoes polarization within Congress; and (iii) are dominated by chairs, especially when the chair enjoys a partisan majority on the agency. Moreover, the evidence from CPSC suggests that the extent of intra-agency partisan polarization is greater than reflected by vote data alone for a variety of reasons, including staff filtering, the chair’s exercise of staff-supervision and agenda-setting power, and contentious items never reaching a formal vote. We term this phenomenon “submerged partisanship.”

Accelerating intra-agency partisan polarization suggests that independent agencies may be less “independent” and functional than intended. If the Supreme Court overturns Humphrey’s, and allows presidents to unilaterally dismiss commissioners, remaining features of independent agency design (such as partisan-balance and quorum requirements) may prove increasingly fragile mechanisms. We offer several alternatives to promote deliberation or constrain executive power even in a post-Humphrey’s universe.

Patrick J. Gauding

Assistant Professor

Welcome! I am Assistant Professor of Politics at the University of the South. My research and teaching interests lie at the intersection of American politics, public policy, and public administration, and include criminal justice reform, local government, gun politics, and research methods.