Partisan Balance With Bite

74 Pages Posted: 14 Aug 2017 Last revised: 3 Feb 2018

See all articles by Brian D. Feinstein

Brian D. Feinstein

University of Pennsylvania - The Wharton School

Daniel J. Hemel

New York University School of Law

Date Written: August 11, 2017


Dozens of multimember agencies across the federal government are subject to partisan balance requirements, which mandate that no more than a simple majority of agency members may hail from a single party. Administrative law scholars and political scientists have questioned whether these provisions meaningfully affect the ideological composition of federal agencies. In theory, Presidents can comply with these requirements by appointing ideologically sympathetic members of the opposite party once they have filled their quota of same-party appointees (i.e., a Democratic President can appoint liberal Republicans or a Republican President can appoint conservative Democrats). No multi-agency study in the past 50 years, however, has examined whether — in practice — partisan balance requirements actually prevent Presidents from selecting likeminded individuals for cross-party appointments.

This article fills that gap. We gather data on 578 appointees to 23 agencies over the course of six presidencies and 36 years. We identify the estimated ideological preferences of those appointees based on personal campaign contributions. We then compare the ideological preferences of co-party and cross-party appointees across agencies and across presidencies. Our analysis indicates that partisan balance requirements had at most a modest impact on the ideological composition of multimember agencies from the late 1970s to the early 1990s, but a stronger effect from the mid-1990s onward. We then consider several possible explanations for these findings. Our results are consistent with a story of “partisan sort”: as ideology and party affiliation have become more tightly linked, cross-party appointees have become more likely to share the ideological preferences of their co-partisans rather than those of the appointing President. Our findings suggest that the increasing polarization of political parties is contributing to a concomitant increase in the ideological heterogeneity of multimember agencies subject to partisan balance mandates.

Keywords: Partisan Balance Requirements, Administrative Law, Independent Agencies, Partisan Sort, Ideological Polarization

JEL Classification: K23, K31

Suggested Citation

Feinstein, Brian D. and Hemel, Daniel J., Partisan Balance With Bite (August 11, 2017). 118 Columbia Law Review 9 (2018), University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 824, U of Chicago, Public Law Working Paper No. 649, Available at SSRN:

Brian D. Feinstein

University of Pennsylvania - The Wharton School ( email )

3641 Locust Walk
Philadelphia, PA 19104-6365
United States

Daniel J. Hemel (Contact Author)

New York University School of Law ( email )

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