Agency Policymaking Research Articles

A foot out the door: what drives bureaucratic exit into lobbying careers?

Abstract The revolving door is a potential mechanism of private influence over policy. Recent work primarily examines the revolving of legislators and their staff, with little focus on the federal bureaucracy. To analyze decisions to turnover into lobbying, we develop an argument emphasizing the (1) policy expertise acquired from federal employment; (2) the proximity of employees to political decision-making; and (3) the agency policymaking environment. Leveraging federal personnel and lobbying data, we find the first two factors predict revolving whereas the policymaking environment has an inconsistent impact. We highlight the importance of studying selection into lobbying for estimating casual effects of lobbyist characteristics on revenue and contribute to the literature on bureaucratic careers and the nature of private influence in policymaking.

Public Citizens: The Attack on Big Government and the Remaking of American Liberalism by Paul Sabin

Undeniably, the public-interest movement fundamentally altered American politics, but calibrating its precise impact is difficult given all the cross-currents and complexities of the U.S. system of government. Such is the challenge that Sabin accepts in this book. His primary focus is on Ralph Nader since Naderism catalyzed the larger movement. With the publicity surrounding his 1965 auto safety expose, Unsafe at Any Speed: The Designed-In Dangers of the American Automobile (New York, 1965), Nader brilliantly crafted for himself the image of a selfless ascetic speaking out on behalf of ordinary Americans. He capitalized on his expanding notoriety by mobilizing resources that he used to commission reports about the incompetence and pro-business biases of the administrative state. His unique style of advocacy inspired a generation of political activists. Indeed, in 1970, one-third of the students at Harvard Law School applied to work as summer interns on Nader’s projects.Despite Nader’s centrality, Sabin correctly credits other important figures in the early public-interest movement, notably John Gardner, Mark Green, Charles Halpern, Gus Speth, Harrison Wellford, and David Zwick. Nader was considerably better at generating news coverage of policy failures than he was at building an organizational edifice that could sustain itself. The environmental movement was more successful at institutionalizing its advocacy through the creation of new organizations such as the Environmental Defense Fund and the Natural Resources Defense Council, and through the growth of existing groups like the Sierra Club and the Audubon Society. Nader’s own ideology was oddly contradictory. He excoriated administrative agencies like the Federal Trade Commission and the National Highway and Transportation Safety Administration, arguing for weakening them by bestowing a greater role on citizens in agency policymaking. Yet, he also wanted agencies to be powerful enough to effectuate his recommended policy changes.In this well-researched book, Sabin relies on a mix of historical tools, including archival work with records from some of the groups, interviews with key figures, and oral histories. The book’s time frame is largely confined to the period between the publication of Unsafe at Any Speed and the end of President Carter’s administration, with just a little coverage in the last chapter of President Reagan’s administration. But what is most conspicuous by its absence in the book is coverage of the fierce mobilization of lobbyists in Washington to combat the assault on the preeminence of big business. This effort, well underway long before Reagan was elected, was effective at checking the rising power of the public-interest movement. David Vogel’s Fluctuating Fortunes (New York, 1989) covers this part of the story in great depth.The best part of Public Citizens is its chapter about Carter’s appointment of sixty public-interest movement leaders to positions in his administration. Nader, however, quickly concluded that Carter was disingenuously trying to coopt the progressive side of the Democratic Party. In Nader’s mind any compromise that the administration made to move policy forward was an abdication of principle. His vitriol aimed at former colleagues was shocking and, ultimately counterproductive, as it altered his image from crusader to loose cannon. Nader’s petulance aside, the conflict between principle and pragmatism is a familiar one in both U.S. political parties. Sabin details how this dynamic involving the public-interest movement frequently divided the Democrats during this period, though he showed little interest in trying to tie this movement to larger currents in the evolution of liberalism between the Great Society and Reagan’s election. As conservatives began leaving the Democrats in a backlash against the Civil Rights movement, the Party was transformed, becoming at once more diverse and more dominated by liberals.Although more definitive judgments await, Nader’s legacy is twofold. First, he and other progressives succeeded in gaining passage of groundbreaking legislation to promote consumer protection and to enhance environmental protection. Second, Nader’s belief that the parties were similar—“Tweedle Dum and Tweedle Dee” (157)—led him to run as the Green Party candidate for president in 2000. As a result, he threw Florida to the Republicans and thus the election to George W. Bush. Nader made an unconscionable choice, one that worked against everything for which he had fought.

Going for Goals: Presidential Appointments and Agency Goal Change

AbstractWith dozens of mandates, federal agencies have considerable discretion in how they focus their time and resources. In this article, I explain how presidents influence agency goals, focusing on how appointee teams are essential to prioritizing and resetting agency goals. Using original data on federal agency goals from the Obama administration to the Trump administration, my analysis of strategic and priority goals across 56 agencies reveals that agencies in which the president has a higher percentage of key appointed positions filled experienced higher levels of long‐term goal change. This finding highlights the president's immediate need to get their appointee teams in place to alter the course of agency policymaking for their whole first term.

Gridlock, Bureaucratic Control, and Nonstatutory Policymaking in Congress

AbstractIncreasing ideological polarization and dysfunction in Congress raise questions about whether and how Congress remains capable of constraining the activities of other actors in the separation of powers system. In this article, I argue Congress uses nonstatutory policymaking tools to overcome the burdens of legislative gridlock in an increasingly polarized time to constrain executive branch actors. I leverage a new data set of committee reports issued by the House and Senate appropriations committees from fiscal years 1923 through 2019 to empirically explore these dynamics and evaluate my argument. Traditionally, these reports are a primary vehicle through which Congress directs agency policymaking in the appropriations process. Committees increasingly turn to them when passing legislation is most difficult and interbranch agency problems are most pronounced. In this way, nonstatutory mechanisms may help maintain the balance of power across branches, even when Congress faces gridlock‐induced incapacity.

When does the multiple principals hypothesis hold? The politics of U.S. agency policymaking autonomy

AbstractWhen the bureaucracy's political principals hold different preferences for policy, does this increase the bureaucracy's policymaking autonomy? Existing theory strongly suggests “yes.” We, however, argue that this pattern will materialize only when the bureaucracy's principals are all on the same side of the political divide. (i.e., unified government). Using data gathered from the American states at two time points, we capture preference divergence by measuring the ideological distance between the bureaucracy's key political principals—legislators, governors, and courts—on the common left–right dimension. We measure policymaking autonomy through multi‐faceted surveys of state agency leaders. In keeping with our argument, we demonstrate that greater preference divergence across the bureaucracy's principals is associated with increased agency policymaking autonomy under unified—but not under divided—government. The results shed new light on when, and why, the bureaucracy's political principals may provide an oversight check on the policymaking power of the modern administrative state.

SNAP EXCLUSIONS AND THE ROLE OF CITIZEN PARTICIPATION IN POLICY-MAKING

AbstractThis essay uses a specific example—proposals to exclude sugary drinks from the Supplemental Nutrition Assistance Program (SNAP)—to explore some features of the contemporary U.S. administrative state. Dating back to the Wilsonian origins of the U.S. administrative state there has been uncertainty about whether we can and should separate politics and administration. On the traditional view, the agencies are to be kept separate from politics—technocratic and value-neutral—although they are indirectly accountable to the president and Congress. The SNAP exclusions example shows, however, that agencies often must make complex and controversial decisions on their own, decisions that go beyond value-neutral technocratic administration. When authorizing legislation has multiple goals, as we’ll argue is the case in the SNAP example, an agency will have to choose between conflicting statutory mandates. Moreover, as the SNAP example shows, agencies often face complex normative questions of ethics and justice that go beyond the question of how to balance competing aims. The appropriate response to the SNAP exclusions example is not to keep politics out of administrative decision-making, but to develop procedures that allow ethical and political questions to be addressed in agency policy-making, consistent with overarching commitments to fairness and democracy.

Transnational agency and domestic policies: The case of childcare deinstitutionalization in Georgia

This article describes a policy adoption case study about deinstitutionalization of childcare in Georgia since independence. It highlights the evolving and non-homogeneous nature of transnational agency in the area of childcare deinstitutionalization, and offers insights into the complex relationship between transnational agency and national policymaking. The analysis draws on national policy documents, reports of United Nations agencies, the European Union, the United States Agency for International Development (USAID) and non-governmental organizations that contributed to the evolution of childcare deinstitutionalization in Georgia. We trace several developments: evolution of Georgian domestic policy versus the changing role of childcare deinstitutionalization in activities of various transnational actors. We find that Georgian childcare was shifting towards deinstitutionalization at the same time as global policy actors were developing their interventions in this policy area, showing how a lower middle-income country can develop its domestic social policies in conditions of an incoherent external environment.

A Change of Policy: Promoting Agency Policymaking by Adjudication

The Administrative Procedure Act and Supreme Court precedents permit federal agencies to articulate new policy through both rules and adjudicative orders. Yet over the past several decades, a once strong culture of policymaking by adjudication within agencies has given way in favor of informal rulemaking, such that President Trump issued an executive order last year that appears to be intended to, in part, prohibit the practice. At the same time, some in academia, such as Kristin Hickman and Aaron Nielson in their new piece titled Narrowing Chevron’s Domain, have sought to limit agencies’ abilities to develop policy through adjudicative orders, arguing, for example, that courts should deny Chevron deference even to policies announced in formal adjudications and as designated precedential because they lack the public legitimacy of notice-and-comment rulemakings. In this article, I discuss why agencies must again give adjudication its due consideration as a real policymaking option, and why the method remains worthy of Chevron deference. Though it need not be used in every circumstance, developing policy through case-by-case adjudications—akin to courts’ development of the common law—can offer significant benefits over informal rulemaking, both to agency policymakers (e.g., speed, case-by-case policy development, ex post policy clarification, increased policymaking opportunities) and to the public (e.g., increased participation by marginalized communities, tailored policies). Adjudication can offer just as much rational reason-giving and accountability as informal rulemaking through practices that broadly permit public participation (e.g., intervention, amicus briefing, oral argument, publishing notice in the Federal Register of opportunities for public input, informing the public of newly-articulated policies) as does informal rulemaking. Agencies should consider how to incorporate adjudication into their policymaking activities, and courts should not exclude adjudicatory policymaking from receiving Chevron deference based solely on its form.

This Article Makes You Smarter! (Or, Regulating Health and Wellness Claims).

Information has power - to inspire, to transform, and to harm. Recent technological advancements have enabled the creation of products that offer consumers direct access to a level of personal health information unprecedented in history. But how are we to balance the promise of health and wellness information with its risks? Two agencies are tasked with protecting consumers from false claims of health products: the FDA and the FTC. This Article investigates if they are up to the task. In part a study of agency policymaking choices, and in part a prescription for more thoughtful and focused regulation, this Article compares both intra-agency and inter-agency regulation of informational health and wellness products. Certain procedural and substantive characteristics of FDA regulation are unsuited to informational health and wellness products, rendering comprehensive regulation by the FDA unrealistic. This gap creates an opportunity for the FTC to use its distinct and well-tailored enforcement tools to police harmful product claims that escape the FDA's purview. I posit that by tailoring the FDA's responsibility and sustaining the FTC's engagement with health claims, the agencies can dovetail into a cohesive and comprehensive regulatory regime.

Participation, process and policy: the informational value of politicised judicial review

AbstractWe develop a model of “notice and comment” rulemaking, focussing on strategic issues facing agencies and interest groups in light of judicial review in this process. Specifically, we analyse the incentives for agencies and groups to produce and reveal information during rulemaking. We show that judicial review can produce informed policymaking, but that participatory rulemaking can bias agency policymaking in favour of groups with access to the rule-making process. In addition, the model allows an analysis of doctrines of judicial review of agency policymaking. The model reveals that “politicised” judicial review can be beneficial because of its effects on agency incentives for information acquisition in policymaking. Accordingly, socially optimal judicial review may be “legally irrational” and, contrary to standard doctrines of judicial review in the United States, judicial deference to rules with thin records can be optimal.

Reviewing Procedure vs. Judging Substance: The Effect of Judicial Review on Agency Policymaking

Reviewing Procedure vs. Judging Substance: The Effect of Judicial Review on Agency Policymaking

The Costs and Benefits of American Policy-Making Venues

Many law and policy scholars consider judges inimical to good public policymaking, and the criticisms they level on the judiciary implicitly reflect some of the concerns raised by Alexander Bickel and other critics. Despite the charge by critics that judges are institutionally ill equipped to participate in the policy-making process and that legal processes are costly, there are reasons to believe otherwise. This article uses field interviews and three case studies of an environmental dispute in the Pacific Northwest to show that the judiciary can be an institutional venue that enhances public input, can be more inclusive than other venues, and produces positive-sum outcomes when other venues cannot. The findings also suggest that legislative and agency policymaking are just as contentious and costly as judicial policy-making processes.

Old Statutes, New Problems

Congress is more ideologically polarized than at any time in the modern regulatory era, which makes legislation ever harder to pass. As a result, Congress is increasingly absent from the policymaking process, and fails to regularly update statutes in the face of social, economic and technological change. This leaves agencies to adapt old statutes to new problems. The challenge of managing statutory obsolescence affects many agencies, and arises in areas as diverse as financial, telecommunications, and food and drug regulation. We examine this dynamic in two fast-moving policy domains, environmental and energy regulation, where Congress has been remarkably absent in recent decades. Contrary to what some might suspect, we find that agencies manage these statutory fit problems carefully, strategically and often with deliberate restraint. Rather than “going for broke,” they tend to choose policies that stop short of open conflict with Congress, yet reflect the agency’s mission, the president’s priorities, and the limits of their statutory authority. We show how, following the Goldilocks principle, agencies seek to get it “just right.” We then explore the implications of this dynamic — in which agencies are the primary statutory updaters — for the institutions in our Separation of Powers scheme: the president, Congress, the courts and the agencies. We argue that the absence of Congress from the policy process can inure to the president’s benefit in the contest to shape agency decisions, especially when the president’s priorities are consistent with the agency’s traditional mission, meaning that the White House and agency are aligned. Finally, we focus on what this new strategic environment of agency policymaking means for judicial review of agency efforts to update the regulatory regime. We argue that, for a variety of reasons, agencies are better suited than courts to do that updating work, and that the case for deferring to agencies in that task is stronger than ever with Congress absent from the updating process. Our account also challenges the view that courts should return important regulatory matters to Congress rather than allow agencies to adapt statutes, because to do so is “democracy forcing.” We argue that the normative commitment to democracy forcing is based on a flawed empirical assumption about the probability of congressional action. Indeed, because the agency is the legally designated custodian of the statute (so designated by the enacting Congress), the agency may have the superior claim to interpret the statute’s application to new problems during periods of congressional quiescence.

Representative democracy and policy-making in the administrative state: is agency policy-making necessarily better?

AbstractThis study focuses on how voters and politicians rationally select a preferred policy-making venue (Politician or Agency), and its implications for the principal-agent relationship between voters and politicians in a representative democracy. This study allows for incomplete information, as well as solving for the comparative static conditions pertaining to the extent that a politician's policy-making venue choices mirror those preferred by a representative voter. The comparative static results highlight when a politician (1) chooses the representative voter's preferred policy-making venue (ActiveorPassive Political Responsiveness); (2) is able to choose freely either policy-making venue without committing agency loss (Political Discretion); and (3) willing to deviate from the representative voter's preferred policy-making venue (Political Shirking). In contrast to the study by Spence, this study analytically demonstrates that one cannot infer that the benefits accrued from agency policy-making will necessarily exceed those from electoral institutions.

Delegation and Positive-Sum Bureaucracies

I develop a formal model to investigate why Congress would choose to delegate authority to an agency whose actions can be controlled, ex post, by a President with divergent policy preferences. Because the President and the Congress might find different policies to be salient to their constituencies, I demonstrate that executive review of agency rulemaking can benefit both branches of government, relative to legislative delegation without the possibility of such review. In trying to undermine the impacts of executive oversight, agencies propose policies that could benefit Congress if the President chose not to intervene in agency policymaking. If the President does intervene, it will establish policy outcomes that can be more desirable than what would ensue absent such review. This joint-desirability of executive review is more likely when congressional and presidential policy preferences are relatively aligned and when congressional and agency policy preferences are relatively divergent. Executive review can increase social welfare depending on the relative effectiveness of the President's oversight of agency policymaking. These results provide insight for why institutions such as the Office of Information and Regulatory Affairs (OIRA) continue to survive in a separation of powers system despite their potential to advantage one branch of government at the expense of the other.

Delegation and Positive-Sum Bureaucracies

I develop a formal model of bureaucratic policymaking to investigate why a legislature would choose to delegate authority to a bureaucratic agency whose actions can be controlled, ex post, by an executive with divergent policy preferences. Because the executive and legislature might find different policies to be salient to their constituencies, I demonstrate that executive review of agency rulemaking can benefit both branches of government, relative to legislative delegation without the possibility of such review. In trying to undermine the impacts of executive oversight, agencies propose policies that could benefit the legislature were the executive to choose not to intervene in agency policymaking. Likewise, if the executive does intervene, executive review allows him to implement a policy more desirable than absent such review. This joint-desirability of executive review is more likely when legislative and executive policy preferences are relatively aligned, and when legislative and agency policy preferences are relatively divergent. The broader social welfare consequences of executive review depend on the relative effectiveness of the executive's oversight of agency policymaking. These results provide insight for why mediating lawmaking institutions such as the Office of Information and Regulatory Analysis (OIRA) continue to survive in a separation of powers system despite their potential to advantage one branch of government at the expense of the other.

Interest Group Competition on Federal Agency Rules

In the lobbying literature, the effects of competition—two or more interests lobbying on opposing sides of a policy debate—have not been assessed with regard to government agency policymaking. Consequently, neither the amount nor the effect of competitive lobbying is well understood. Using nearly 1,700 comments on 40 federal agency rules, we evaluate two questions: Do government agencies respond to lobbying by changing agency policies? and Does lobbying on one side of a policy issue beget lobbying on the opposing side? We demonstrate that agencies change the content of final rules in favor of the side that dominates the submission of comments. Thus, it seems the “squeaky wheel gets the grease” during rulemaking. We find no evidence, however, of counteractive lobbying during agency rulemaking. Our results suggest that interest groups may further their policy goals by observing more closely the actions of opposing groups during agency policymaking.

A Bias Towards Business? Assessing Interest Group Influence on the U.S. Bureaucracy

We test the proposition that the federal bureaucracy exhibits a “bias toward business” during notice and comment rulemaking. We analyze over 30 bureaucratic rules and almost 1,700 comments over the period of 1994 to 2001. We find that business commenters, but not nonbusiness commenters, hold important influence over the content of final rules. We also demonstrate that as the proportion of business commenters increases, so too does the influence of business interests. These findings contrast with previous empirical studies and generally suggest that notice and comment procedures have not succeeded in “democratizing” the agency policymaking process to the extent sometimes suggested in the normative rulemaking literature.

Behind the Web site: An inside look at the production of Web-based textual government information

This paper describes an exploratory, multisite case study of the production of textual content for state agency Web sites. The qualitative field study explored internal agency Web staff characterizations of textual Web content and staff perceptions of factors affecting the production of content. Study results suggest that staff characterize content in terms of its format, its style age, its rate of change, its degree of change, its owner, and the degree to which it is sensitive. Staff described nine factors affecting content production including information intensity, public education mission, public inquiry burden, top-down directives, existing maintenance burden, review and approval process, resources, management interest and goals, and support from other program staff. A better understanding of how internal agency staff perceive and treat content is important because staff play a large role in determining what content is produced and what characteristics the content contains. The inclusion or exclusion of certain characteristics in content has important implications for information usability, costs, citizen participation in agency policymaking, government transparency, and public trust in government.

An Apology for Administrative Law in 'The Contracting State'

This essay responds to Jody Freeman's Article, The Contracting State, which will soon appear in the symposium on Regulatory Theory and Administrative Law in the Florida State University Law Review. I agree with Freeman's assessment that regulation by agreement between the state and a contractor or regulated entity adds a significant arrow to the quill of regulatory weapons. Like her, I too have concerns about how the courts will address such contracts. I, however, do not see contract mechanisms as a means of providing regulatory accountability, but rather as a means of avoiding the overbreadth of traditional regulation and of assigning roles required by the regulatory state to those best able to perform them. Moreover, I fear that emphasis on contract as a means of providing accountability will lead to incorporation of contract law principles that will seriously undermine the flexibility of current administrative processes. Unlike Freeman, I am not certain that administrative law's lack of explicit reference to contractual processes reflects ignorance. Rather, I believe that current understandings of administrative law recognize that over the past several decades much of regulation has been implemented through contract like processes, and seek to place such processes within a framework that allows administrative agencies leeway to structure and implement regulatory programs as they think best. So viewed, too a great extent administrative law already accommodates contractual bargaining processes, and with merely a little tweaking provides sufficient accountability for most of the types of bilateral regulatory contracts that Freeman discusses. This essay begins by reviewing the potential benefits of regulatory contracts, stressing in particular that those benefits flow from attributes of contractual relationships other than the desire to hold the government accountable for regulatory policy. It goes on to describe what I consider basic understandings of the current adminstrative state - that the principal checks on agency policymaking are procedure and politics. Finally, the essay considers what these understandings imply about how courts should treat the four types of regulatory contracts that Freeman identifies in her principal paper: (i) procurement contracts, (ii) contracts under which private entities perform government services, (iii) agreements between administrative agencies and regulated entities regarding implementation or enforcement of regulations, and (iv) contracts between an agency and private entity that specify the requirements that govern the regulated conduct of the entity. In particular, the essay analyzes how these understandings inform when and how government contracts should be enforceable by the nongovernment party or by the public beneficiaries of these contracts.