The Psychology of Accountability and Political Review of Agency Rules

Abstract

This article uses literature on the psychology accountability to evaluate the likely impact of the various forms of political review on the quality of agency decisionmaking. It begins by briefly reviewing the basic findings of psychological research regarding the impact of accountability on decisionmaking. It next applies those findings to three mechanisms of political review: OMB scrutiny of cost-benefit analyses that accompany rules, congressional committee oversight of rulemaking, and congressional fast-track review. Finally, it discusses the implications of those findings, in particular addressing the contention of some scholars that judicial review is unnecessary in light of political review, and opining on the desirability of each political review mechanism. The analysis of the accountability provided by these mechanisms for political review suggests that each mechanism is likely to have some unique impact on the behavior of agency staff members who formulate agency rules. Of the three mechanisms, OMB review holds the greatest promise for improving the quality of staff decisionmaking. OMB, review, however, also can induce the agency to formulate economically conservative rules rather than rules that promise uncertain but potentially large benefits at a certain and significant cost, or to accede to direct White House pressure for a particular outcome. Traditional congressional oversight is unlikely to improve the care of agency staff analyses or the propensity of the staff to use inappropriate decision rules and to succumb to heuristic biases because Congress cares almost exclusively about outcomes rather than the process that the agency uses to formulate rules. For this same reason, traditional congressional review might induce the agency staff to become defensive about its initial rule preference or it might cause the staff to formulate a rule more in line with the preferences of influential congresspersons - for example chairs of oversight committees. Fast track review is the least likely of the mechanisms canvassed in this article to encourage significant change in agency decisionmaking because the agency does not know in advance which rules will actually be subject to fast track scrutiny after they are promulgated. The article concludes that, overall, none of the mechanisms for political review are capable of replacing judicial review as a means of improving the quality of agency rulemaking.