Public Interested Regulation

Abstract:     
Most accounts of regulation view administrative agencies as suppliers of regulatory favoritism to powerful political interest groups. Species of the "interest group" theory of regulation see agencies as the willing or perhaps unwitting servants of a legislature that uses agencies to deliver regulatory benefits to interest groups in exchange for such groups' political support. This article seeks to qualify that conventional wisdom by exploring several reasons why, notwithstanding legislative pressures, administrative agencies may at times be well situated to advance broad-based interests even over interest-group opposition. In particular, this article focuses on administrator idealogy, agencies' institutional relationships to the President and the courts, and especially administrative procedure as sources of agency autonomy, arguing that these features of administrative decisionmaking attenuate any simple claims about legislative dominance. The article advances that argument in part by relying on three case studies of agency decisionmaking, including the EPA's ozone and particulate matter rules, the FDA's tobacco rule, and the OCC's deregulation of national banks, all of which illustrate to greater or lesser degrees the relevance of agency autonomy, the potential for broad-based regulation, and the limits of legislative control.

Accepted Paper Series