Divided Agencies

54 Pages Posted: 20 Sep 2021 Last revised: 21 Apr 2022

See all articles by Brian D. Feinstein

Brian D. Feinstein

University of Pennsylvania - The Wharton School

Abby K. Wood

University of Southern California Gould School of Law

Date Written: 2021

Abstract

Clashes between presidential appointees and civil servants are front-page news. Whether styled as a “deep state” hostile to its democratically selected political principals or as bold “resisters” countering those principals’ ultra vires proposals, accounts of civil-servant opposition are legion. Move beyond headlines, however, and little is known about the impact of political divisions within agencies on their workaday functioning.

This Article presents the first comprehensive, empirical examination of the effects of intra-agency political dynamics on policymaking. Leveraging data on political preferences based on campaign donations, we identify “ideological scores” for both appointees and civil servants in dozens of agencies over 34 years—the first measure of the political gap between these two groups across agencies and time. We use these scores to examine how ideological divergence between appointees and civil servants affects regulatory activity.

We find that agencies with greater distance between these two groups—which we term divided agencies—may adopt a more cautious posture. They tend to extend the rulemaking process and allow consideration of late-filed comments. These features provide appointees with extra time to gather and digest comments from politically aligned outside experts. Divided agencies’ caution may extend to the completion of final rules, which—in some but not all models—tend to be less numerous. Remarkably, we find no evidence that divided agencies are any less successful in shepherding proposed rules to final status. That finding casts doubt on the claim that the longer rulemaking timeframes in these agencies are attributable to civil servants’ attempts to derail oppositional appointees’ initiatives. Instead, one possible interpretation is that divided agencies’ caution pays off.

These findings imply that, with agency heads oscillating between left and right based on the party in power, the generally more moderate civil service can serve as a ballast. Specifically, faced with appointees that may be responsive only to a bare electoral majority, the presence of oppositional civil servants may encourage regulatory caution and push decision-making away from the extremes—thus, paradoxically, moving policy toward the median voter.

Our findings also spotlight the critical role that the notice-and-comment process—which is often maligned as pretextual—can play in divided agencies. Generalist appointees face a principal-agent problem when crafting rules; their key source of necessary in-house expertise, civil servants, may be misaligned. In this circumstance, comments from outside allies can provide a check on civil servants’ work. That civil servants can play a pro-majoritarian, moderating role in divided agencies highlights the importance of preserving civil-service protections—especially in today’s polarized political climate.

Keywords: administrative agencies, polarization, regulation, administrative law, civil service

JEL Classification: K23, H11,

Suggested Citation

Feinstein, Brian D. and Wood, Abby K., Divided Agencies (2021). Southern California Law Review, Forthcoming, C. Boyden Gray Center for the Study of the Administrative State Research Paper No. 21-40, USC CLASS Research Paper No. CLASS21-47, USC Law Legal Studies Paper No. 21-47, The Wharton School Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3925861

Brian D. Feinstein (Contact Author)

University of Pennsylvania - The Wharton School ( email )

3641 Locust Walk
Philadelphia, PA 19104-6365
United States

Abby K. Wood

University of Southern California Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States

HOME PAGE: http://weblaw.usc.edu/contact/contactInfo.cfm?detailID=71046

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