The Accountable Bureaucrat

77 Pages Posted: 29 Apr 2022

See all articles by Anya Bernstein

Anya Bernstein

University at Buffalo Law School

Cristina Rodriguez

Yale Law School

Date Written: March 26, 2022

Abstract

Common wisdom has it that, without close supervision by an elected official, administrative agencies are left unaccountable to the people they regulate. For both proponents and detractors of the administrative state, agency accountability thus hangs on the concentrated power of the President. This Article presents a different vision. Drawing on in-depth interviews with officials from numerous agencies, we argue that everyday administrative practices themselves support accountability—an accountability of a kind that elections alone cannot achieve. The electoral story focuses on the aspect of accountability that kicks in as a sanction after decisions have already been made. We propose instead that the ongoing justification of policy positions to multiple audiences empowered to evaluate and challenge them forms the heart of accountability in a republican democracy. The continual process of reason-giving, testing, and adaptation instantiates the values that make accountability normatively attractive: deliberation, inclusivity, and responsiveness.

Our interviews reveal three primary features of the administrative state that support such accountability. First, political appointees and career civil servants, often presented as conflictual, actually enact complementary decisionmaking modalities. Appointees do not impose direct presidential control but imbue agencies with a diffuse, differentiated sense of abstract political values. Civil servants use expertise and experience to set the parameters within which decisions can be made. The process of moving these differing but interdependent approaches toward a decision promotes deliberation. Second, agencies work through a networked spiderweb of decisionmaking that involves continual justification and negotiation among numerous groups. This claim stands in stark contrast to the strict hierarchy often attributed to government bureaucracy: we show how the principal-agent model, frequently used to analyze agencies, obscures more than it reveals. The dispersion of decisionmaking power, we claim, promotes pluralistic inclusivity and provides more support for ongoing accountability than a concentration in presidential hands would. Finally, many two-way avenues connect agencies to the people and situations they regulate. Those required by law, like notice-and-comment rulemaking, supplement numerous other interaction formats that agencies create. These multiple avenues support agency responsiveness to the views of affected publics and the realities of the regulated world.

Our research provides crucial empirical evidence of how the everyday work of government gets done, and gives the notion of accountability content. Rejecting formalistic claims about what must constitute accountability in the abstract, we focus on the values that make accountability normatively attractive: the way it reveals arbitrariness, incorporates multiple perspectives, and encourages negotiated, provisional outcomes. In short, our work illuminates rich resources for promoting republican democracy within the bureaucracy—resources that not only encourage agencies to act accountably, but give them the means to do so. These resources, however, are not inherent or eternal: they must be actively maintained and nourished. This Article should thus both change how we think about government accountability, and inform how we structure our institutions to achieve it.

Suggested Citation

Bernstein, Anya and Rodriguez, Cristina, The Accountable Bureaucrat (March 26, 2022). Yale Law Journal, Vol. 132, 2022, Available at SSRN: https://ssrn.com/abstract=4067359

Anya Bernstein (Contact Author)

University at Buffalo Law School ( email )

School of Law
624 O'Brian Hall
Buffalo, NY 14260-1100
United States

Cristina Rodriguez

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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