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Article Excerpt
It is widely believed that insulating an administrative agency from the influence of elected officials, whatever its other benefits or justifications, reduces the agency's responsiveness to the preferences of political majorities. This Article argues, to the contrary, that a moderate degree of bureaucratic insulation from political control alleviates rather than exacerbates the countermajoritarian problems inherent in bureaucratic policymaking. An elected politician, though responsive to majoritarian preferences, will almost always deviate from the majority in one direction or the other. Therefore, even if the average policy position of a given elected official tends to track the policy views of the median voter in the electorate, the average divergence between the preferences of that official and the median voter in the electorate is generally greater than zero. Forcing the politically responsive official to share power with a partially insulated bureaucracy can reduce the variance in policy outcomes, because bureaucratic insulation creates a kind of compensatory inertia that mutes the significance of variation in the elected official's policy preferences. Up to a point, the median voter's benefit from this reduction in outcome variance outweighs the costs associated with biasing the expected outcome away from the median voter's ideal policy.
TABLE OF CONTENTS INTRODUCTION I. THE CONVENTIONAL WISDOM II. ANALYSIS A. Assumptions 1. The Normative Standard 2. The Positive Framework B. The Baseline Analysis 1. Optimal Bureaucratic Insulation at the Policymaking Stage 2. Optimal Bureaucratic Insulation at the Institutional Design Stage C. Extensions 1. Voter Internalization of Presidential Control Costs 2. Voter Monitoring and Lobbying of the President. 3. Strategic Voter Selection of a Biased President 4. Extended Policy Time Horizon CONCLUSION APPENDIX A. Players and Order of Play B. Equilibrium Strategies 1. Equilibrium Strategy of the Bureaucracy and the President 2. Optimal Bureaucratic Insulation in the Policymaking Stage 3. Optimal Bureaucratic Insulation in the Institutional Design Stage C. Extensions 1. Social Costs of Bureaucratic Control Efforts 2. Alternate Methods of Accountability 3. Strategic Voter Selection of Biased Presidents 4. Longer Time Horizons
INTRODUCTION
The degree to which elected politicians ought to influence bureaucratic policymaking is one of the most important and contested questions in public law. A prominent school of thought--endorsed by influential scholars, practitioners, and public servants--maintains that increasing political influence over the bureaucracy enhances the majoritarian legitimacy of the administrative state, while insulation of the bureaucracy from political control (whatever its other benefits or justifications) is necessarily "countermajoritarian" and therefore problematic. This conclusion is supported by a simple, powerful, and intuitive argument: most bureaucratic policy choices involve fundamentally political value trade-offs, and in a democracy there is a strong presumption that such choices should reflect the interests of electoral majorities. Elected politicians--for example, the president--tend to respond to majoritarian interests; appointed bureaucrats are much less responsive. It therefore seems self-evident that giving politicians greater influence over agencies, all else equal, will always increase the degree to which agency decisions reflect majoritarian preferences.
This Article argues that this seemingly obvious conclusion is false: a moderate degree of bureaucratic insulation alleviates rather than exacerbates the countermajoritarian problems inherent in bureaucratic policymaking. Even if elected politicians are more responsive to voters than are agencies, and even if agencies do not have any special expertise or other advantages, a majority of the electorate is still better off with some degree of bureaucratic insulation from political control. The reason has to do with the fact that an elected politician, though responsive to majoritarian preferences, will almost always deviate from the majority in one direction or the other. Republican presidents, for example, are almost always more conservative than a majority of the electorate, while Democratic presidents are typically more liberal. So even if the average policy position of presidential administrations tends to track the policy views of the median voter in the electorate, the average divergence between the preferences of the median voter and the president is generally greater than zero. Forcing the politically responsive president to share power with a partially insulated, politically unresponsive bureaucracy tends to reduce the variance in policy outcomes, because bureaucratic insulation creates a kind of compensatory inertia that mutes the significance of variation in the president's policy preferences. Up to a point, the benefit to a majority of voters from a reduction in outcome variance outweighs the cost associated with biasing the expected outcome away from the median voter's ideal outcome. A majority of voters therefore prefers a moderate level of bureaucratic insulation from political control.
This result contrasts sharply with the received wisdom that majoritarian values are best served by maximizing the degree to which politically responsive elected officials can control unaccountable bureaucrats. It is important to stress, though, that the optimal level of bureaucratic insulation has the expected relationship with other political and institutional variables. The more responsive an elected politician is to majoritarian preferences, the lower the majority's optimal level of bureaucratic insulation. Likewise, the greater the bureaucracy's expected policy bias, the lower the optimal level of bureaucratic insulation. And the more voter preferences tend to shift over time--or, equivalently, the more serving a majority's interests may require sudden and dramatic policy changes--the lower the optimal level of bureaucratic insulation. These comparative results, however, do not alter the fact that, except in special cases, the optimal level of bureaucratic insulation will be positive.
This Article develops the central argument and several extensions using a positive political theory ("PPT") framework. Part I surveys existing scholarship. With very few exceptions, the conventional wisdom is that if one presumes that (1) politicians are responsive to majoritarian preferences, (2) bureaucrats are not, (3) bureaucrats do not have special expertise or other advantages that would be undermined by greater political control, and (4) responsiveness to majoritarian preferences is the only relevant normative criterion, then elected politicians should have maximum influence over bureaucratic policymaking, except in special circumstances. Part II, the heart of the Article, assesses this conventional wisdom using a stylized PPT framework. Section II.A lays out the normative and positive assumptions that structure this analysis. Section II.B derives the optimal degree of bureaucratic insulation under these assumptions. This analysis establishes the main result: except in special cases, majoritarian values are best served by a degree of bureaucratic insulation from political control. Because this baseline analysis incorporates a number of strong simplifying assumptions, Section II.C considers several extensions. These variants generate additional insights, but they do not substantially undermine the central claim that political majorities often prefer to limit the influence of accountable politicians over unaccountable bureaucrats. A technical appendix presents the formal model on which the analysis and conclusions in the body of the Article are based.
I. THE CONVENTIONAL WISDOM
Many distinguished scholars and practitioners believe that it is illegitimate and undesirable for bureaucrats to pursue policy goals that diverge from those of the nation's elected representatives. Over thirty years ago, Lloyd Cutler and David Johnson concisely summarized this view by defining a "regulatory failure" as a situation in which "an agency has not done what elected officials would have done had they exercised the power conferred on them by virtue of their ultimate political responsibility." (1) In other words, agencies fail "when they reach substantive policy decisions ... that do not coincide with what the politically accountable branches of government would have done if they possessed the time, the information, and the will to make such decisions." (2) This definition of bureaucratic failure rests on two premises, one normative and the other positive. The normative premise is that regulatory policy should be maximally responsive to the preferences of a majority of the electorate. The positive premise is that the best way to assure bureaucratic responsiveness to majoritarian preferences is to make agency policy choices as responsive as possible to the preferences of the elected political leadership.
The normative premise that democratic institutions should generally maximize majoritarian responsiveness is vulnerable to a variety of criticisms, including the claims that one cannot ascribe coherent preferences to a collective body, (3) that majoritarianism may actually reduce aggregate voter welfare, (4) and that political institutions should advance normative goals other than satisfaction of the preferences of current electoral majorities. (5) This Article brackets these objections and provisionally assumes, consistent with much of the existing literature advocating extensive political control of the bureaucracy, that majoritarianism is a legitimate and coherent institutional goal.
What about the positive premise--that if majoritarianism is our objective, we should confer as much authority as possible on politically accountable elected officials? The notion that one can increase the political responsiveness of bureaucratic decisions by increasing the influence of the most politically responsive decision maker commands widespread acceptance. Richard Pierce, for example, states that political control over agency decisions is desirable because "[p]olicy decisions should be made by the most politically accountable institution available." (6) Similarly, Peter Strauss and Cass Sunstein assert that "[f]or those who believe that regulatory issues present questions to be resolved 'politically'--in accordance with (informed) constituent desires--decisionmaking power should be placed in the hands of those most accountable to the public." (7)
Of course, most political-control advocates concede that it is too costly to eliminate bureaucratic insulation completely. The fact that elected officials have limited time and expertise, for example, may make some de facto bureaucratic autonomy inevitable. (8) Furthermore, aggressive political monitoring that deprives agencies of policymaking autonomy may erode agency incentives to invest in expertise, thereby raising the costs to elected politicians of acquiring policy-relevant information. (9) These informational considerations may induce even committed majoritarians to tolerate some degree of bureaucratic autonomy. But this "agency slack" is viewed as acceptable only if the costs (to majoritarian interests) of bringing the bureaucracy to heel are too high. Furthermore, these informational arguments do not necessarily undermine the claim that majoritiarian interests are best served by giving politicians maximum authority over bureaucratic policy, because the politicians themselves may choose to give agencies a degree of autonomy if doing so would serve majoritarian interests.
Scholars have also identified special circumstances in which the satisfaction of majoritarian preferences may require a degree of bureaucratic independence from political control. For example, a time-consistency problem, also known as a credible commitment problem, may provide a majoritarian justification for insulating central banks, the judiciary, and some public utility commissions from direct political control. (10) Some level of bureaucratic insulation may also improve voter welfare by reducing political risk. (11) Additionally, the insulation of certain institutions--such as courts or legislative districting commissions--may be important for ensuring that elected politicians remain sufficiently responsive to majoritarian interests. (12) But these are special cases. For the mine-run of bureaucratic policy decisions--from environmental protection to workplace safety to criminal prosecution to food and drug regulation--the conventional view is that giving maximum authority to the most politically responsive decision maker maximizes the responsiveness of policy to majoritarian preferences.
This general view may imply a variety of legal and institutional conclusions. Some believe that the need to put politically accountable officials in charge of bureaucratic policy demands a revitalization of the nondelegation doctrine. On this view, Congress is too eager to delegate authority to unaccountable bureaucrats who cater to narrow interests rather than broad majorities. According to nondelegation advocates, if Congress could not transfer responsibility for making fundamental policy decisions, Congress would make more of these decisions through the legislative process and would be held accountable for its choices. (13) The plausibility of this claim has been vigorously challenged, (14) and the strong form of the nondelegation view has virtually no traction under current doctrine. (15) Nonetheless, arguments that emphasize Congress's relatively greater majoritarian responsiveness may provide support for the judicial application of "nondelegation canons" of statutory construction. (16) Moreover, some scholars have suggested that administrative procedures and interpretive default rules can and should increase the control of the current Congress over regulatory policy, even--or perhaps especially--if broad delegations are considered legitimate. (17)
Proponents of strong presidential control over the administration also argue for maximum feasible political responsiveness in bureaucratic policymaking. Scholars with diverse ideological and methodological commitments have asserted that the two premises discussed above--that bureaucratic policy should track majoritarian values and that this goal is best advanced by giving decision-making authority to the most politically accountable officials--imply the need for presidential control over bureaucratic policymaking, because the president is the institutional actor most responsive to the preferences of a national majority. Lawrence Lessig and Cass Sunstein, for example, posit that presidential control over the bureaucracy is necessary to serve the constitutional commitment to political accountability because, "to the extent that an agency official makes discretionary decisions about the content of public policy, the best reading of the constitutional plan is that in general, the official may not be insulated from presidential supervision." (18) Putting Lessig and Sunstein's constitutional views to one side, numerous other experts agree that the political responsiveness of bureaucratic policy to the preferences of the national electorate correlates strongly with presidential control of the administration. In addition to Lessig and Sunstein, prominent proponents of this hypothesis include James Blumstein, (19) Steven Calabresi, (20) Philip Hatter, (21) Elena Kagan, (22) Jerry Mashaw, (23) Richard Pierce, (24) and Peter Strauss. (25)
Some of those who support strong presidentialism on majoritarian grounds believe that the Constitution, sound institutional-design principles, or both require a "unitary executive" in which the president has complete authority over all aspects of the administration. (26) Other strong presidentialists do not take their conclusions quite this far, but this is not because they reject the premise that presidential control maximizes the political responsiveness of bureaucratic policy. Rather the allowance for some degree of bureaucratic insulation from the president is a concession to values other than majoritarian responsiveness. Elena Kagan is explicit about this. After noting that individuals and institutions other than the president (including interest groups, congressional committees, and the agencies themselves) have a "far more tenuous connection to national majoritarian preferences and interests," Kagan nonetheless allows that these entities "may have important roles to play and contributions to make in the administrative process." (27) But, she explains, this is only because "responsiveness to the general electorate is not the sole criterion by which to assess administrative action." (28) On the dimension of political responsiveness to the electorate, Kagan is unequivocal that "the President holds the comparative advantage." (29) Thus she concludes that, "given the current ubiquity of broad delegations, [democratic] values support the strongest feasible presidential control of administrative decisions." (30) Strauss and Sunstein take a similar approach. They acknowledge a need to maintain "tension" between the "neutral expertise" and "political" views of regulation, (31) and they admit some role for the former in shaping procedural constraints on the president's authority to direct the administration. That said, Strauss and Sunstein are quite clear that on the dimension of political responsiveness, presidential control over the bureaucracy is always a benefit. (32) The implication is that the more one cares about majoritarianism, the more one ought to favor presidential control over the administration.
The view that increasing presidential control over the administration would increase the political responsiveness of agency policy may imply a variety of legal or institutional arrangements that reduce bureaucratic insulation from the president, at least to the extent this can be done without excessive erosion of other relevant values (such as bureaucratic competence or fairness). (33) Versions of the majoritarian responsiveness argument have been used to justify, for example, deferential judicial review of agency action on questions of both law (34) and policy; (35) conditioning such deference on evidence that the president or her immediate subordinates were involved in making the relevant decision; (36) allowing agencies to change their policies easily in response to a new president's political priorities; (37) imposition of centralized regulatory review through the Office of Management and Budget ("OMB"); (38) allowing the president to issue policy directives to agencies; (39) shifting the authority within the executive branch to interpret statutes from the agencies to the Department of Justice ("DOJ"); (40) increasing the power of White House representatives within agencies; (41) and restricting Congress's ability to limit the president's removal authority or to delegate to officials not under the president's direct control. (42)
The enthusiasm for presidential control of the administration, however, is far from universal. Indeed the critics of strong presidentialism may outnumber the proponents. Yet an interesting feature of the varied and vociferous criticisms of strong presidentialism is that few, if any, reject the notion that placing decision-making authority with the most politically responsive officials will increase the majoritarian responsiveness of the decisions themselves. Instead, critiques of strong presidentialism tend to make one or both of two other claims.
First, many critics assert the priority of other values, such as "rule of law," "procedural regularity," or "rationality," over majoritarian responsiveness. (43) Lisa Bressman, for example, has argued that excessive attention to political accountability has obscured the importance of preventing arbitrary agency decision making. (44) Furthermore, these critics sometimes assert that the type of direct responsiveness that strong presidentialists attribute to the chief executive can pose a threat to important public values other than majoritarianism. (45) These criticisms, however, do not directly undermine the hypothesis that the majoritarian responsiveness of bureaucratic policy correlates positively with the influence of politically accountable elected officials. Rather, these critics posit that the costs of presidential control, in terms of damage to other values, outweigh whatever majoritarian benefits presidential control might confer.
Second, many critics dispute the claim that the president is more politically responsive than other institutions to national majorities. Some argue that greater presidential control over the administration might actually threaten majoritarian values by eroding the influence of Congress, which arguably has even stronger majoritarian credentials than the president, (46) or by undermining an administrative process that does, or could do, a reasonably good job of responding to voter preferences. (47) These concerns are exacerbated by the lack of transparency associated with some forms of presidential control. (48) Whatever the validity of these criticisms, however, none of them rejects the premise that increasing the authority of the most majoritarian decision makers over the bureaucracy will increase the majoritarian responsiveness of bureaucratic decisions. Indeed the preceding criticisms are not targeted at the political responsiveness theory per se, but rather at its strong presidentialist variant.
In sum, the conventional majoritarian case for strong presidentialism rests on three premises: (1) political and legal institutions should increase the responsiveness of bureaucratic policy to the values held by a majority of voters, (2) increasing the relative influence of the most politically accountable entities over the bureaucracy will increase the majoritarian responsiveness of bureaucratic policy, and (3) of our existing institutions, the president is the most responsive to majoritarian preferences. Critics of strong presidentialism have attacked the first and third premises, but for the most part they have left the second intact. Part II of this Article develops a simple theoretical framework to assess the idea that maximizing the power of the institution most responsive to majoritiarian preferences in fact maximizes the majoritarian responsiveness of bureaucratic decisions. The analysis concludes that this hypothesis is at best seriously incomplete and at worst flat-out wrong.
II. ANALYSIS
A. Assumptions
1. The Normative Standard
One problem afflicting much of the literature that invokes the concepts of "political responsiveness," "political accountability," and "political representativeness" is that these malleable terms are not always clearly defined. (49) This Article adopts a simple, functional definition of political responsiveness and treats the closely related concepts of political accountability and political representativeness as synonymous. (50) For the purposes of this Article, "political responsiveness" is the degree of correspondence between the policy the bureaucracy implements and the policy that a majority of the electorate would select if the issue were put to a vote.
More specifically, the analysis assumes that the policy outcome (which can be interpreted as a single decision or as the aggregate effect of multiple decisions) can be characterized as a point in a one-dimensional space (that is, a line). For convenience, one might think of the line as capturing a traditional left-right (liberal-conservative) policy continuum, but the dimension could be anything. The preferences of a majority of the national electorate can be represented, in abstracted form, as the preferences of a single median voter (referred to simply as the "voter") with a most-preferred outcome (an "ideal point") in the policy space. The voter's utility is a decreasing function of the distance between the policy outcome and the voter's ideal point. The degree of "expected policy responsiveness" is simply the expected distance between the policy outcome and the voter's ideal point. (51)
The following analysis uses expected policy responsiveness as the exclusive normative criterion to judge different institutional arrangements. This is not because policy responsiveness is the only value that legal and political institutions ought to respect, but rather because this Article focuses on how well different institutional arrangements serve majoritarian values. Because much of the case for strong presidentialism (or political control of the bureaucracy more generally) rests on claims about advancing majoritiarian responsiveness, it makes sense to put that case on its strongest footing by temporarily excluding consideration of other values.
It is worth noting, however, that the following analysis could proceed in exactly the same way if what I refer to as the "voter's ideal point" were redefined as something other than the median voter's most preferred policy. For example, one could define this point as the policy that maximizes aggregate voter welfare, the policy that most closely approximates what the policy outcome would have been under the original understanding of the Constitution's decision-making process, or some other definition of the "optimal democratic outcome." As long as the positive assumptions outlined in the next subsection hold, the main substantive conclusions will also hold. While little in the analysis depends on identifying the optimal democratic outcome with the median voter's ideal point, this identity is often made or assumed in discussions of the appropriate degree of political control over agencies, and so I will use this terminology for expositional convenience.
2. The Positive Framework
This Article considers a stylized model of bureaucratic policymaking that includes two, and only two, government decision makers: an elected politician, referred to as the president, and an unelected bureaucracy. It is important to emphasize that the decision to label the elected politician the "president" is purely for expositional convenience. The analytical framework would apply in exactly the same way if this actor were labeled "Congress" or "Congress-plus-the-president." (52)
The model divides the decision-making process into two stages: an "institutional design stage" and a "policymaking stage." (53) In the institutional design stage, two important events occur. First, a bureaucracy is created. The bureaucracy's initial ideal point may diverge from the voter's initial ideal point by some amount, and the magnitude of this distance is the "initial bureaucratic bias." (54) Second, institutional rules are established, and these rules determine the degree of "bureaucratic insulation" from presidential control. (55)
At the beginning of the policymaking stage, the voter's ideal point may shift some amount to the left or right; neither direction is more likely ex ante. Although the analysis assumes that institutional designers do not know which direction voter preferences will shift, or exactly how much, the expected magnitude of the shift is known at the institutional design stage. We can use the term "voter preference instability" to characterize the expected magnitude of the voter's preference shift. When voter preferences are stable, shifts are likely to be relatively small; when voter preferences are unstable, shifts are likely to be relatively large. (56) This feature of the model allows assessment of the claim that political control over the bureaucracy is necessary to respond to changes in the voter preferences. (57)
After the voter settles on a new ideal point, the political process determines the president's ideal point. The president is politically responsive to the electorate in the sense that the president's (induced) policy preferences are positively correlated with the voter's preferences. More precisely, the expected value of the president's ideal point is equal to the...
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