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State PUCs: Still Setting the Agenda

Fortnightly Magazine - July 15 1996

Quizzed by lawmakers, and buffeted by political winds, regulators ponder an uncertain future.

Agree or not, utility commissioners are part judge, part regulator, and part politician.

Appointed or elected (em for some, that debate never ends (em commissioners face politics on all sides: from the governor, the legislature, the populace, and special interest groups. Add to that each commissioner's personal leanings.

Democratic, Republican, or Independent, utility commissioners often say political tags are meaningless. They fill six-year terms and step down. A new governor, often from a new party, appoints another panel.

But commissioners can't escape their political roots. Their jobs have always served as stepping stones to higher office. Think of Huey "Kingfish" Long, Louisiana Public Service Commissioner in the 1920s, who parlayed his anticorporate reforms into a powerful governor's seat and, later, a U.S. Senate post. Or consider, more recently, Christine Todd Whitman, the Board of Public Utilities Commissioner who commands New Jersey's governor's office. Today, however, those political roots threaten some of the traditional independence of state public utility commissions (PUCs).

To take the pulse of PUCs, PUBLIC UTILITIES FORTNIGHTLY talked to five commissioners whose regulatory bodies are, or have been, caught in political crosswinds. Generally, these officials found it difficult to admit that they face anything more than politics as usual, or that precedents are being set.

Take the case of the California Public Utilities Commission (CPUC). In August 1994, the California legislature passed Assembly Concurrent Resolution 143 (ACR 143). The resolution "urged the Commission to refrain from issuing a final order" on electric restructuring until the legislature held hearings. Did that measure tie the commission's hands?

"We are, frankly, in the business of making fundamental policy calls, and I don't want to get ahead of the will of the elected representatives of California in that regard," offers Daniel Wm. Fessler (R), CPUC president.

In other words, Fessler had little choice.

He and his colleagues across the nation dance on the same tightrope. Politics and legislative oversight clearly absorb them.

"Absolutely," says Robert W. Gee (D), a Texas PUC commissioner says of his brethren. "[Commissioners] don't want to be perceived as out there hammering on their legislatures to move in a particular direction or not to move. And they want to give themselves a lot of wiggle room.

"They're saying a lot of stuff is going on and they're caught in political crosswinds," Gee says. "I think everybody is walking on eggshells right now. And I'm not critical at all. I identify with that."

According to the Yearbook of Regulatory Agencies 1994-95, published by the National Association of Regulatory Utility Commissioners (NARUC), the legal status of PUCs is clear. All are independent, their decisions are not subject to revision by higher administrative authority, and nearly all claim quasi-judicial, quasi-legislative power. Some 26 PUCs form part of the executive branch; 12 function as arms of the legislature. Nine operate as solely statutory bodies; four act as constitutional entities. Legal status blurs, however, when it comes to formulating policy. The CPUC is a constitutional body. Perhaps that was why ACR 143

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