Public Agencies as Lobbyists

Abstract

In this Article Professors DeShazo and Freeman identify a new mechanism by which Congress can control delegated power: the use of other agencies as lobbyists - a phenomenon the Article calls lateral legislative control. Agency lobbying can help to solve the problem that Congress creates when it charges an agency with additional mandates that conflict with the primary mandates in the agency's enabling act. Rather than balancing these competing duties, agencies frequently resolve such interstatutory conflicts by prioritizing their primary mission and letting their secondary obligations fall by the wayside. The Article proposes that Congress can overcome this problem of agency reluctance to comply with secondary mandates by enabling other public agencies to lobby the reluctant agency to take the mandates more seriously. The Article presents an empirical study of the Federal Energy Regulatory Commission's (FERC) hydropower relicensing decisions between 1982 and 1998 to show that passage of the Electric Consumers Protection Act (ECPA) of 1986 strengthened resource agencies' ability to lobby FERC, and resulted in a significant increase in the number of environmental conditions imposed. The Article thereby shows that agencies lobby one another, that Congress can facilitate interagency lobbying, and that lobbying alters agency outcomes.

The Article concludes by showing that interagency lobbying has significant implications for several current issues in administrative law and political science. It presents a new mechanism for controlling delegated discretion, suggests a means for counterbalancing private interest groups that challenges conventional interest group theory, and proposes, paradoxically, that interagency conflict can be constructive. Additionally, the Article examines the separation-of-powers concerns that interagency lobbying may raise and suggests that interagency lobbying supplies a new rationale for judicial deference to agency decisions.

Keywords: administrative law, environmetal law, natural resource law, public law

JEL Classification: K19, K23, K32, Q20, Q28, Q30