1. 2. 3. The procedures employed by the Commission The potential impact of such a joint : the automobile industry; and Other relevant trends in the autho On January 27, 1984, FTC Chairman Miller responsed in a letter to Chairman We believe that a postponement of the hearing unjustified, that out final decision was influenced The letter then outlines a series of judicial decisions, including the Pillsbury case, relating to bias or prejudice of agency proceedings. A separate concurring statement of Commissioner Bailey is attached to the letter in which she explains her support for staff appearance before the 9/ Letter dated January 24, 1984 to FTC Chairman Miller from Chairman Florio. Hachment #3 10/ Letter dated January 27, 1984 to Chairman Florio from FTC Chairman Miller. A Hachment #4 Subcommittee in lieu of Commission appearance. Also attached to the letter is a dissenting statement from Commissioner Pertschuk, who disagrees with the application of the legal precendent cited by Chairman Miller: . The Commission relies on the Pillsbury case In contrast, the GM/Toyota matter is currently 11/ Dissenting Statement of Commissioner Pertschuk attached to Letter dated January 27, 1984 to Chairman Florio from FTC Chairman Miller. Attachment #4" On January 1, 1984, Chairman Florio sent another letter to FTC Chairman Miller indicating that the Subcommittee hearings would be I am afraid that neither of these proposals Testimony by staff is an inadequate substitute for On February 1, 1984, John D. Dingell, Chairman for the full House Committee on Energy and Commerce sent a letter to FTC Chairman Miller. In the letter Chairman Dingell indicated that he had reviewed the January 27, 1984 letter from Miller to Florio, and asked Chairman Miller to outline "...for me in writing the specific areas of inquiry concerning this matter that you believe could (separately or collectively), if examined by the Subcommittee, lead a court to conclude that the agency's action is invalid because of improper pressure. 13/ 12/ Letter dated January 31, 1984 to FTC Chairman Miller from Chairman Florio. it Hacment #5 13/ Letter dated Feb ́ssy 1, 1987 to FTC, Chairman Miller from Chairman Dingell. A Hachment #6 It is out of all these exchanges that the legal issues that are the subject of your inquiry arise. And it is to the legal issues raised directly and indirectly by these communications that we now direct our attention. THE CONSTITUTIONAL AUTHORITY FOR CONGRESSIONAL INVESTIGATIONS The power of the Congress to conduct investigations of goverment operation, enforcement of current laws and other bona fide legislative activities generally subsumed under the category of Congressional oversight is well established, and has long been recognized by the courts. 14/ Even though the Congress has the recognized inherent powers under Article I of the Constitution to conduct legislative investigations, the exercise of these Congressional powers can have a consequential impact upon the legal rights of private parties and upon Federal agencies. Congressional oversight hearings relating to the operation of Federal agencies raise potential legal issues with respect to 1) communications by agency decisionmakers relating to certain pending and prospective proceedings and 2) communications from Members of Congress urging that certain agency actions be taken. Federal court decisions have developed two closely related principles of law. First, the questioning of an agency official, regarding the reasons or rationale for deciding an issue still pending before that official, 14/ Kilbourn v. Thompson, 103 U.S. (1881); McGrain v. Daugherty, 273 U.S. 135 (1927); Watkins v. United States, 354 U.S. 178 (1957); and, Barenblatt v. United States, 360 U.S. 109 (1959). may be an impermissible intrusion into the administrative process if it denies a litigant his due process right to impartiality in the decisionmaking process. The second principle holds that agency action will be struck down where it results, either in whole or in part, from congressional pressure. Although the judicial opinions distinguish these two situations, one fundamental principle appears to be applied in all interference in an ongoing administrative proceeding from members of the legislative branch of government can so infect or influence the proceeding that a court will nullify the decision reached in the tainted process and order the agency to take any appropriate action to ensure reasoned, independent decisionmaking. cases: PREJUDICE OR BIAS ON THE PART OF AGENCY DECISION MAKERS It is well established that agency decisionmakers must be free from bias or prejudice in order to render fair and impartial decisions presented to them under a variety of procedures governing decisionmaking. The need for avoidance of bias or prejudice in connection with any particular pending proceeding arises from concepts of due process under the 5th Amendment of the Constitution and has been articulated by many courts as applicable to various types of agency proceedings. Generally, there is a presumption that an administrative official is objective and has been "capable of judging a particular controversy fairly 15/ on the basis of its own circumstances." 15/ U.S. v. Morgan, 313 U.S. 409, 421 (1941). |