ADMINISTRATIVE PROCEDURES AS INSTRUMENTS OF POLITICAL CONTROL
McCybbins, Noll, Weingast
A problem of representative democracy is how to ensure that policy decisions are responsive to the interest of citizens. Elected officials delegate policymaking authority to non elected bureaucrats.
2 general types of controls elected officials can have: oversight (monitoring, rewarding and punishment) and administrative procedures. Political control of agencies is a principal agent problem. So, Much of the administrative law is written for the purpose of helping elected politicians to retain control.
SOLUTIONS TO THE PROBLEM OF BUREAUCRATIC COMPLIANCE Creating an agency with discretionary authority causes a problem: the agency may make decision that depart form policies that Congress and the President would have chosen. Bureaucrats have personal preferences which conflict with members of the Congress and president. In absence of effective oversight policies are likely to reflect personal preferences and aversion to effort that does not serve personal interests. The problem is about asymmetry of information, bureaucrats become more experts, the main consequences are shirking corruption and oligarchy.
REWARDS SANCTIONS AND MONITORING AS CONTROL Politicians have several means to reward or punish agencies: they can be removed from office, impeached of fired, they can be called to public hearings and investigations; finally they can reorganize agencies and reshuffle policy. So the value of political punishment, multiplied by the likelihood that improper behavior will be detected enters as a cost for bureaucrats. Though, this system is unlikely to be effective due to the costs of monitoring (2 forms: oversight & evaluation, and fire alarm monitoring), limitations in the range of rewards and punishments (just big actions can be punished) and the costs that most meaningful rewards and punishments imply for politicians (they send to their electorate, the message that there is something wrong)
PROCEDURAL SOLUTIONS Procedures can be solutions to problems of noncompliance by agencies only if procedures affect the outcomes of decision making processes. Alterations in procedures will change the expected policy outcomes of administrative agencies by affecting the relative influence of people who are affected by the policy. There are 2 forms of control problems: political principals in both branches of government suffer an informational disadvantage with respect to bureaucracy; and the coalition that forms to create an agency will seek to ensure that the bargain struck among the members of the coalition does not unravel once the coalition disbands (the coalition stacks the deck in the agency’s decision making to enhance the durability of the bargain struck among members of the coalition. By structuring the rules of the game, administrative procedures sequence agency activity, regulate its information collection and dissemination, limit its available choices and define its strategic advantage.
POLITICAL CONSEQUENCES OF THE ADMINISTRATIVE PROCEDURES ACT (1946) APA is a political document written to enhance political control: Incentives to gain relevant information: leaders are uncertain about what politically os the most desirable policy.
Delegation of authority makes it possible for agencies to adjust policies in directions desired by political leaders as more information is obtained; delegation allows agencies to pursue their own goals, so a control mechanism is needed. Administrative procedures can be used to guide agencies to make decisions consistent with the policy preferences of political principals. With APA in US, courts ensure agency actions are neither arbitrary nor capricious. The requirement are:
A) Agency cannot announce a new policy without warning, it must give notice that it will consider an issue. (in this way the cannot conspire against the officials).
B) Agencies must solicit comments and allow all interested parties to communicate their views (this valuable information shows which are the political costs and benefits)
C) Agencies must allow participation in the decision making process, with the extent often mandated by the organic statue creating the agency as well as the by the courts. (this prevents secret deals)
D) Agencies must deal with evidence presented to them. (this have the political side benefit of selectively causing the most politically contentious issues) Public disclosure requirements: The freedom of information act was added to APA, this limits the ability of an agency to impose a change in policy without warning by requiring that, with minor exceptions, all records and publicly available. These enable interested parties to learn about any attempt by the agency to develop a new constituency of to change policy while it is on the drawing board (before the agency can mobilize a new constituency).
APA reduces the agencies information advantage, which produces an increase on efficiency of expost sanctions. Evidentiary Standards: Rules and standards of evidence in administrative law serve another political function, the key is to select the stringency of the evidentiary standard that an agency must satisfy to make its decision withstand a court appeal. Weak standards give more flexibility.
Deck Stacking: political actors control the extent of representation of varioys interests in administrative process. By controlling the details of procedures, political actors stacl the deck un favor of constituents who are intended beneficiaries of the bargain struck by the coalition whoch created the agency. Because the processes endure far into the future, elected representatives can be expected to be unsure about substantive details of their must desired policy, stacking the deck helps preventing this.
Elaborated procedures with stiff evidentiary burdens for decisions and numerous opportunities for seeking judicial review before the final policy is reached will benefit constituents that have considerable resources for representation. So assignment of the burden of proof is another mechanism of deck stacking. Deck stacking enables political officials to cause the political environment in which an agency operates to mirror the political forces that gave rise to the agency’s legislative mandate long after the coalition behind the legislation has disbanded. The agency is not free to manipulate policy by seeking to create a new coalition tha supports its preferred policies.
DECENTRALIZED ENFORCEMENT AND THE COURTS Procedures will only have the desired effect if their requirements are enforce. If the constraints they impose are binding, they will establish an automatic control mechanism for Congress that keeps the agency from choosing undesirable outcomes.
CHANGING CIRCUNSTANCES Procedural constraints have yet another advantage. From the perspective of elected politicans, one potential problem with delegating policy making authority is that the relevant political interests may change over time. The political costs and benefits of a policy also change. Establishing a bias in favor of participants in the process of the policy decision made by the agency evolve as the composition of participating groups changes.