Policy: Two on agency capture

Rachel E. Barkow (NYU), "Insulating Agencies: Avoiding Capture Through Institutional Design". Abstract:

So-called independent agencies are created for a reason, and often that reason is a concern with agency capture. Agency designers hope that a more insulated agency will better protect the general public interest against interest group pressure. But the conventional approach to independent agencies in administrative law largely ignores why agencies are insulated. Instead, discussions about independent agencies in administrative law have focused on three features that have defined independent agencies: whether their heads are removable at will or for cause by the President, whether they must submit regulations to the President's Office of Information and Regulatory Affairs for cost-benefit analysis, and whether the agencies have a multi-member structure or a single head at the top.

But these traditional metrics for an independent agency are not the only, or necessarily even the most effective, ways in which insulation from interest groups and partisan pressure can be achieved. In fact, under modern conditions of political oversight, other design elements and mechanisms are often just as important if the goal is to create an agency that is best suited to achieve a long-term public interest mission free from capture. This is particularly true of agencies tasked with protecting the general public in the face of one-sided and intense political pressure. This kind of lopsided pressure can be seen in a range of areas, including banking, criminal justice, and consumer protection.

The goal of this Article is to move the conversation about insulation beyond the traditional hallmarks of independence and identify overlooked elements of agency design, deemed “equalizing factors,” that are particularly well-suited to addressing the problem of capture. The Article identifies five such equalizing factors that have received little or no attention in the legal literature on independent agencies, but that are critically important to insulation against one-sided interest group dominance. The Article then compares the importance of traditional and equalizing factors in the context of consumer protection, an area with the kind of one-sided interest group pressure that is a breeding ground for capture. The creation this year of the Bureau of Consumer Financial Protection, the most significant new federal agency created in decades, showcases both the continuing danger of capture and the critical importance of institutional design in policing it.

Nicholas Bagley (Michigan), "Agency Hygiene" . 8 Texas Law Review See Also 1 (2010). Abstract:

Rachel Barkow's important article on structuring agencies to insulate them from interest-group capture leaves largely unanswered the problem of what to do with an agency that has already been captured. Although nothing in principle prevents Congress from reshaping existing agencies along the lines she suggests, experience suggests that we might wait a very long time for Congress to enact structural reforms.

To eliminate capture that has already taken hold, the political branches need two things: good information and political will. They need information in order to identify capture where it occurs, to understand the contours of the relevant capture dynamic, and to suggest agency-specific strategies for ameliorating capture. More significantly, the political branches also need the will to implement those strategies even in the face of stiff resistance from well-funded groups with a potent interest in perpetuating the status quo. Although information and political will are in short supply, they need not be. Congress can and should establish a body housed within the Executive Branch and vested with the authority to investigate allegations of capture and document the existence of capture dynamics where they arise. Adequately funded and appropriately staffed, this body would coordinate with offices of inspectors general across the federal bureaucracy to identify capture where it occurs. At the same time, Congress should create legislative mechanisms to spur action on the recommendations of this newly instituted body.

Thanks to Lawrence B. Solum's Legal Theory Blog. EMM