Robert E. Cushman's statement highlights a fundamental dilemma concerning the nature and role of independent regulatory commissions: the tension between their necessary independence and the imperative for accountability. This paradox is central to understanding the challenges of governance in modern administrative states.

The Argument for Independence and the Risk of Irresponsibility: Regulatory commissions, such as the Securities and Exchange Commission (SEC) or the Federal Communications Commission (FCC) in the US context, are established to regulate specific sectors of the economy or aspects of public life. Their independence is crucial for several reasons:

1. Expertise and Non-Partisanship: These bodies often deal with highly technical and complex issues. Independence allows them to recruit and retain experts who can make decisions based on evidence and specialized knowledge, free from political interference or short-term electoral cycles. This fosters non-partisan decision-making.
2. Impartiality and Fairness: To effectively regulate, commissions must be perceived as impartial arbiters between competing interests (e.g., industry vs. consumers). Political pressure or direct control by the executive or legislature could compromise their fairness and lead to biased outcomes.
3. Stability and Predictability: Independence provides stability in regulatory policy, which is vital for long-term planning by industries and for public confidence. Frequent shifts due to political changes would create uncertainty.

However, Cushman rightly points out the potential downside: "If the Regulatory Commissions are wholly independent, they are... completely irresponsible for the doing of very important policy determining and administrative work." This 'irresponsibility' stems from:

1. Lack of Direct Political Accountability: Unlike elected officials or cabinet ministers, commissioners are typically appointed for fixed terms and are not directly accountable to the electorate. This can create a 'democratic deficit,' where powerful policy decisions are made by unelected officials without direct public oversight.
2. Potential for Capture: While independent of political branches, commissions can become 'captured' by the very industries they are supposed to regulate. Close relationships, revolving doors, and shared interests can lead to decisions that favor industry over public interest.
3. Policy Drift and Lack of Coordination: Extreme independence might lead to commissions pursuing their own agendas, potentially diverging from broader government policy or failing to coordinate with other agencies, leading to fragmented governance.
4. Absence of Clear Oversight: If there are no effective mechanisms for review or oversight, commissions might operate without sufficient checks and balances, making decisions that are not aligned with public welfare or legislative intent.

The Argument Against Robbing Independence and the Menace to Impartial Judicial Work: On the other hand, Cushman warns that "to rob the commissions of their independence is seriously to menace the impartial performance of their judicial work." This refers to the quasi-judicial functions performed by many regulatory commissions, such as adjudicating disputes, enforcing regulations, and imposing penalties. For these functions, independence is paramount:

1. Fair Hearing and Due Process: Like courts, commissions must provide fair hearings and due process. If their independence is compromised, their decisions could be influenced by political pressure, leading to unfair outcomes for parties involved.
2. Protection from Political Retribution: Commissioners need to be able to make tough, unpopular decisions without fear of political retribution. If their tenure or funding is subject to political whims, their impartiality in adjudicating cases would be severely undermined.
3. Credibility and Public Trust: The legitimacy of a commission's quasi-judicial decisions rests heavily on its perceived impartiality. Stripping independence would erode public trust in the fairness and integrity of the regulatory process.

Balancing Independence and Accountability: The challenge, therefore, is to strike a delicate balance. Complete independence risks irresponsibility, while complete subservience to political masters risks partiality and ineffectiveness. Modern administrative law and governance seek to achieve this balance through various mechanisms:

• Structured Independence: Granting independence in decision-making while maintaining accountability through other means. This includes fixed terms for commissioners, protection from arbitrary removal, and independent funding.
• Legislative Oversight: Congressional or parliamentary committees can conduct oversight hearings, review budgets, and demand reports from commissions.
• Judicial Review: Courts can review commission decisions to ensure they act within their statutory authority, follow due process, and do not make arbitrary or capricious decisions.
• Transparency Requirements: Mandating public hearings, open records, and reasoned decisions enhances transparency and allows for public scrutiny.
• Ethical Guidelines and Conflict of Interest Rules: Strict rules prevent commissioners from having financial or other conflicts of interest with regulated entities.

In conclusion, Cushman's statement highlights an enduring tension. Regulatory commissions require a degree of independence to perform their complex, expert, and quasi-judicial functions impartially and effectively. However, this independence must be tempered with robust mechanisms of accountability to prevent them from becoming unresponsive or irresponsible. The goal is not absolute independence or absolute control, but a carefully constructed framework that allows for both expert governance and democratic legitimacy.