Our History: Told By You - a 50th Anniversary Blog Post Series
Present at the Re-Creation
People like to say that they were “present at the creation” of something. I wasn’t present at the creation of the Administrative Conference of the United States in 1964, but when the Conference came back from hibernation in 2010, Chairman Paul Verkuil asked me to take a leave from GW Law School and serve as Director of Research and Policy. So I was “present at the re-creation.” Here are some vignettes from the early days of ACUS 2.0.
Starting from Nothing. When I started in 2010, ACUS had no offices, no membership, no Council, and no staff. David Pritzker, a stalwart from the old days, was on detail from GSA to help us get started. Jeff Lubbers, longtime Research Director of the original ACUS, was helping out as a contractor, as were a fellow named Bill Richardson (not the former governor of New Mexico) and Sherland Peterson, Paul’s executive assistant. Unbeknownst to me, Preeta Bansal, the General Counsel of OMB, had been named the Vice Chair. But that was it.
We were working in temporary space in some unused offices in the FTC building on M Street. Paul had an office, I had an office, and we had the use of a conference space. David and Bill dropped in from elsewhere. We all had to be approved by FTC security to enter the offices. And when David figured out how to get business cards for us, it was a big breakthrough.
New Title. At first, Paul recruited me to be the Executive Director, but after a few discussions he decided (quite rightly) that my academic skill set was more suitable for the position of Research Director. I didn’t like that title—it sounded too bookish—so I asked to be called the “Director of Research and Policy.” Paul agreed. My successor, Gretchen Jacobson, went back to the traditional title of Research Director, so I was the only Director of Research and Policy that ACUS ever had.
The Council and the Membership. President Obama named the Council in July, but we still needed members. We read our organic statute, figured out who was entitled to membership, and notified agencies that they needed to appoint the government members. We had to explain to everyone what ACUS was and what it meant to be a government member. The public members were to be appointed by the Chairman with the Council’s approval, so we suggested names for Paul’s consideration. Paul struck a good balance among academics, practicing lawyers, and others, and also a good political balance, to ensure that ACUS would be nonpartisan.
Getting Around Town. Paul made it a priority to let the agencies know that ACUS was back in business. My first day on the job we met with a cabinet secretary—Kathleen Sebelius, Secretary of Health and Human Services. In the subsequent months, we made the rounds of the agencies and had meetings with cabinet secretaries, chiefs of staff, and general counsels.
Legal Challenge. In late July we received a FOIA request. That was an education. That single FOIA request brought most of ACUS’s work to a halt as we diligently searched our files for responsive documents and as Bill Richardson figured out what portions of the documents were disclosable. I don’t know how big agencies deal with thousands of FOIA requests a year.
First Council Meeting. The Council first met on August 30. We prepared frantically. On August 23 (our self-imposed deadline for getting meeting materials to Council members), several of us were standing around Sherland’s desk at 8 p.m. staring at her while she finished entering some last-minute changes. That can’t have made her job easy.
In the last day or two before the meeting, we went through the agenda and practiced each item, trying to imagine what Council members might say and what further information we’d have to be ready to provide. On the day of the meeting, the Council ripped into things. Council members had really studied the details and had some significant thoughts.
Expanding the Staff. Another initial task was hiring the staff, including my own staff of four. We received hundreds of applications for those four positions. The applications provided a window into the crisis in legal employment that was occurring at the time. I saw many resumes from young lawyers who had graduated from law school in 2008 or 2009 and hadn’t worked since.
One applicant, Emily Bremer, showed unusual initiative: she applied before we even advertised the positions. She had seen Paul give a talk and decided that ACUS was for her. We ended up hiring her as the first of the Attorney Advisors and today she is the Research Coordinator.
Legal Challenge, Part II. In September, we put out our first requests for proposals on Conference projects. We hoped to award the contracts by September 30, but on September 14 someone filed a bid protest and claimed that we hadn’t gone through proper contracting procedures. Even though the complaining party wasn’t seeking to be a contractor on any of the projects (so how could he have standing?), and even though we’d done everything correctly, we had to wait until the GAO resolved the protest before we could move forward. That held us up a long time—GAO didn’t dismiss the protest until December 14. That left only six months before the next plenary to award the contracts, do the research, have the committee meetings, and prepare the recommendations.
The FOIA request and the bid protest were filed by the same person, a self-appointed ACUS gadfly from the old days. He certainly gave the new ACUS a lot to think about.
Busy Office. One day in September Paul remarked that there were now so many people in the office that no one of us fully knew what all the others were doing. There was indeed a different feeling in the agency. When the whole office consisted of five people, everyone knew everything that was going on. By mid-September, we were up to 11 people, and that wasn’t so true anymore.
First Committee Meeting. We wanted to set our first committee meeting for October 19. That provided another education. Under FACA, an agency is supposed to provide 15 calendar days’ notice of a committee meeting, but it takes three business days to get notice in the Federal Register, so you have to count back 15 calendar days plus three business days to determine when to get the notice to the Federal Register’s offices. I suggested we try to get the notice to the Federal Register a day early to allow for problems.
The whole office ended up working on that notice. We realized that before writing the notice we had to make numerous decisions. Would we be webcasting the meeting? How would the public submit comments? Would public attendees have to register in advance? A dozen such details had to be decided so the notice could contain correct information. I ran the draft past the General Counsel, the Executive Director, and the Communications Director. Everyone spotted lots of details that needed changing. Finally, we were nearly ready for the courier to pick the notice up at noon when we heard from our consultant that she wasn’t sure when we’d be able to post her report on our website. So at the last minute we changed our statement that the consultant’s report “is” posted to “will be” posted and got it out.
The notice was rejected. It turned out we’d used Paul’s signature stamp instead of an original signature. Unacceptable. Luckily, we were able to fix it the next day.
Relations with Congress. In 2006, when discussions about bringing ACUS back surfaced on Capitol Hill, a House subcommittee wrote a report with suggested research topics for a renewed ACUS. In November 2010, once we were back, Paul and Michael McCarthy (the Executive Director) returned one day from a Hill meeting and reported that our draft reauthorization bill said something like, “The Conference shall study the topics described in the 2006 House subcommittee report,” and it gave us a deadline of September 1 of the following year. I pointed out that the House subcommittee report contained 60 topics and that even if we studied nothing but topics in that report it would take at least seven to ten years to get to all of them. Paul and Mike agreed to push back on that requirement. I felt like the Conference had been saved from disaster.
First Plenary. The first plenary session of the revived Conference (the 53rd plenary session overall) was scheduled for December 9-10, 2010. There were a thousand details to work out. The location, the agenda, the Federal Register notice, conflict-of-interest forms. Where people would sit, how debate would proceed, what would show up on the screen and the webcast. Hand mikes. Guest speakers. Breakout sessions. Travel arrangements. Catering.
Justice Antonin Scalia (ACUS Chairman, 1972-1974) attended and swore in the membership. Senator Sheldon Whitehouse addressed the plenary session. David Ferriero, the Archivist of the United States, displayed relevant historical documents.
We needed to divide the public members into two classes to serve staggered terms. I suggested that the division be modeled on the division of the first United States Senators into classes back in 1789: we would put numbered slips into a box and have one representative from each class choose a slip. Paul liked that idea and we did it. I bought the box myself and I keep pens in it in my office today.
Thanks to extremely hard work by the Committee on Regulation and particularly Committee Chair Russell Frisby, there was even a recommendation for the Conference to consider. The membership discussed the recommendation rather generally until people realized that if they wanted any changes they had to move an actual amendment. Then the discussion got more pointed. There isn’t much time. The Conference is like a legislative body that’s only in session four days a year. Debate time is at a premium.
In the end, everything went off remarkably smoothly. The recommendation was adopted. Members showed excellent command of and interest in the details. The members also made useful suggestions for future Conference work.
ACUS Established Once Again. With the plenary behind us, we had the Conference solidly re-established for the future. I stayed another year. We got better at things all the time. After a while, committee meetings were no longer all-consuming affairs but just another day at the office. By December 2011, we were rather calm even about planning plenary sessions.
ACUS re-established its reputation for sound thinking on administrative issues. At one committee meeting, a government member said that her agency’s general counsel had been interested in the issue we working on, but said, “let’s see what ACUS does—we wouldn’t want to get out ahead of ACUS.”
By December 2011, ACUS felt like a real government agency. It had come a long way in a short time. I was pleased to have been present at the re-creation.