The Procedure Fetish - Niskanen Center

America has a procedure problem.

Now and in the coming decades, the country faces a daunting set of challenges: transitioning to renewable energy, forestalling financial crises, increasing housing supply, and preparing for the next pandemic. Yet our public infrastructure is in tatters, as suggested by the staggering governmental failures associated with our COVID-19 response. Institutional distrust is at historically high levels; the number of public employees relative to the U.S. population has plummeted; and government agencies struggle to discharge their basic responsibilities, much less do big things.

Despite the mismatch between the scope of the challenges and the fragility of our institutions, there is little appetite on either the right or the left to rethink public administration and administrative law. Republicans and Democrats instead are locked in the same tired pas de deux that has characterized their approach to state capacity for five decades.

The right’s familiar move, pressed with increasing urgency in recent years, is to call for new procedural rules to discipline a regulatory state that does too much with too little care. Conservative reform proposals travel under an array of names and acronyms, but they embrace a common tactic: They stack procedure on procedure to create a thicket so dense that agencies will either struggle to act or give up before they start. The proposed Regulatory Accountability Act, which would require agencies to hold trial-like proceedings before issuing some rules, reflects that impulse, as do similar laws that have been proposed and adopted at the state level. By tilting the scales against agency action, Republicans hope to end “job-killing regulations” and invigorate the free market.

Democrats have generally opposed these anti-statist measures, which would frustrate their efforts to protect the environment, consumers, and workers. But Democrats do not usually ask the obvious follow-up. If new administrative procedures can be used to advance a libertarian agenda, might not relaxing existing administrative constraints advance progressive ones?

That question deserves an answer. Inflexible procedural rules are a hallmark of the American state. The ubiquity of court challenges, the artificial rigors of notice-and-comment rulemaking, zealous environmental review, pre-enforcement review of agency rules, picayune legal rules governing hiring and procurement, nationwide court injunctions — the list goes on and on. Collectively, these procedures frustrate the very government action that progressives demand to address the urgent problems that now confront us.

But attention on the left is elsewhere. In today’s political landscape, “regulatory reform” is strictly the province of Republican policymakers, so much so that the phrase has acquired an anti-regulatory connotation. Republicans have a reform agenda. Democrats don’t.

What gives? Part of the answer, I think, is that our legal and political culture is in thrall to the belief that strict procedural rules are necessary to address pervasive anxiety about state power. This belief is rooted in at least two stories we tell about the regulatory state. The first is about legitimacy: Robust, legally mandatory procedures are necessary to legitimize an administrative leviathan that rests on a precarious constitutional foundation and that the public views with suspicion. The second is about accountability: that procedural rules, by stitching the public into agency decision-making, guard against the risk that influential minorities will wield undue influence.

Gauzy claims about legitimacy and accountability serve as ready-made arguments in defense of most any procedure. No one can prove that relaxing procedural constraints won’t damage the legitimacy of the administrative state. No one can prove that agency capture won’t come roaring back. Why roll the dice? We should be thankful for the procedures we have and nervous about their elimination.

Yet these beliefs are wildly overdrawn; indeed, they are myths. Procedural rules have a role to play in preserving legitimacy and discouraging capture, but they advance those goals more obliquely than is commonly assumed and can even exacerbate the problems they’re meant to solve. Addressing our common problems and achieving our collective aspirations will require us to revive a much more positive vision of the administrative state — one in which its legitimacy is measured not by the stringency of the constraints under which it labors, but by how well it works.

Administration and distrust

The laws that structure the American administrative state were built on a bedrock of distrust. When it was adopted in 1946, the Administrative Procedure Act — the federal law that creates default procedural rules for agencies and which has been widely copied in the states — aimed to soothe the jangled nerves of legal and business communities alarmed by the New Deal and the muscular wartime exercise of state power. Discipline would come through procedures to channel, improve, and restrain agency action.

On the page, the APA’s procedural strictures were spare. They were not to remain so. Against the backdrop of Watergate and the Vietnam War, liberal lawyers in the 1960s and 1970s grew increasingly disenchanted with the idea that agencies could act as disinterested experts. They likewise grew attuned to the risk of agency capture, and came to believe that intensive judicial review was necessary to prevent powerful interest groups from getting special favors in the regulatory process. At the vanguard were newly formed public interest organizations staffed by idealistic young lawyers who had been inspired by the courtroom successes of the Civil Rights Movement. Their heroes were not the New Dealers who had once labored in agency trenches, but crusaders like Ralph Nader, Rachel Carson, and Thurgood Marshall who held the government to account.

By the 1970s, too, Congress had adopted a rash of new laws to regulate automobiles, air and water quality, workplace safety, and more. In these laws, liberals made common cause with political conservatives, joining them in calling for rules that would limit administrative discretion and expose agency action to judicial review. These rules were piled on top of new transparency measures, including the Freedom of Information Act, the Federal Advisory Commission Act, and the Government in the Sunshine Act, each of which imposed their own procedural burdens on agencies.

As the courts began to read novel obligations into the spare language of the APA, the procedural net was drawn tighter still. By 1971, Judge David Bazelon could herald “a new era in the history of the long and fruitful collaboration of administrative agencies and reviewing courts,” one in which courts would “insist on strict judicial scrutiny of administrative action.” (The equation of “strict judicial scrutiny” with “fruitful collaboration” was emblematic of the times.) Among other things, the courts subjected compliance with the National Environmental Protection Act (NEPA) to judicial review, making what Robert Kagan called “adversarial legalism” a “recurrent feature of governmental efforts to build highways and license power plants, implement forestry plans, dredge harbors, construct waste disposal facilities, and issue offshore oil exploration leases.”

With support from Congress, the executive branch stepped into the game. Shortly after taking office, President Reagan charged the Office of Information and Regulatory Affairs with responsibility for restraining agencies that were heedless of the costs they were imposing on American industry. By executive order, no major agency rule could take effect without OIRA’s signoff, which would be forthcoming only after an interrogation of the agency’s justification for acting and a thoroughgoing review of costs and benefits. Because OIRA’s gatekeeping role stymied agency decision-making — indeed, that was the point — many observers expected President Clinton to rescind the order upon taking office. But Clinton made OIRA review his own, and it has become an apparently permanent feature of the administrative state.

More procedures were to come. When Republicans swept Congress in 1994, they quickly adopted, with Clinton’s support, a slew of novel procedural rules, including the Congressional Review Act, the Unfunded Mandates Reform Act, the Regulatory Flexibility Act, and the Information Quality Act. All of those laws remain on the books today.

The pattern seems to be that an ever-present (indeed, ever-increasing) anxiety about the state periodically generates calls for stiffer procedural rules. The sediment deposited by this accretion of procedures can channel agency action into unproductive courses or even dam it altogether. There’s an analogy here to complaints about how a multiplicity of government rules can stifle business activity. Complaints about overzealous regulation, however, are taken seriously in our political culture. Fears that procedural rules make it hard for agencies to do their jobs are not.

Legitimacy

If America has a procedure problem, it may be because it has a lawyer problem. Among lawyers, anxiety about agency legitimacy is reflexively invoked to defend the legally imposed procedures that structure agency decision-making. Here’s Richard Stewart, a titan in the field: “The traditional conception of administrative law . . . bespeaks a common social value in legitimating, through controlling rules and procedures, the exercise of power over private interests by officials not otherwise formally accountable.” Similar statements abound in the literature. Every procedure under the sun has been defended, at one time or another, as a guarantor of the fragile legitimacy of the administrative state.

But it pays to be precise. It is reasonable to believe that procedural regularity is an important facet of government legitimacy. But legitimacy is not solely — not even primarily — a product of the procedures that agencies follow. Legitimacy arises more generally from the perception that government is capable, informed, prompt, responsive, and fair. Mandatory procedures may sometimes advance those values. They can focus agencies on priorities they may have ignored, orient bureaucracies to broader public goals, and improve the quality of agency deliberations. But procedures can also burn agency resources on senseless paperwork, empower lawyers at the expense of experts, and frustrate agencies’ ability to act. When procedures impair an agency’s ability to do its job, they can drain an agency of legitimacy.

What’s more, if an agency consistently makes bad decisions, the lawyer’s assumption that more procedures will force it to make good ones is dubious. Bad decisions may sometimes occur because the agency didn’t follow the proper procedures, but they’re more often the product of resource constraints, poor leadership, misplaced legal obligations, organizational dysfunction, ill-trained employees, political infighting, and the like. In general, the best way to build an agency’s legitimacy will be to address those concerns, either by turning to Congress for resources and reform or by enlisting someone who knows something about management.

Yet lawyers, not managers, have assumed primary responsibility for shaping administrative law in the United States. And if all you’ve got is a lawyer, everything looks like a procedural problem.

The point is worth dwelling on. By international standards, lawyers play an unusually central role in the United States. That’s been true from the beginning: “It is at the bar or the bench that the American aristocracy is found,” Alexis de Tocqueville wrote in the 1830s. And it’s true today. Law is a high-status profession; law schools attract many of our brightest and most ambitious young people; and the halls of power are filled with lawyers. Though they make up less than 1 percent of the population, lawyers currently constitute more than one-third of the House of Representatives and more than half the Senate. Fully half of the last 10 ten presidents were lawyers, as are more than a third of the officials now serving in the states as governor, lieutenant governor, and secretary of state. Every state attorney general and judge in the land is, naturally, a lawyer. Is this “lawyerly hegemony” a healthy approach to governance? Jeremy Kessler worries that it reflects “the capture of the administrative state by lawyers themselves.”

Lawyers are also apt to ascribe their anxiety about procedural irregularity to the broader public — a public that, as it happens, is mercifully unaware of intricate debates over administrative procedure. But by leveraging the public’s (imaginary) anxieties, lawyers can defend any procedure they like. For even if all the lawyers agree that a given procedure is useless, wasteful, and capricious, who’s to say that the public sees matters the same way? If the public is anxious, the performance of adhering to procedural rules may itself signal the agency’s conscientiousness and thus conduce to its legitimacy. Framed that way, the claim about legitimacy is unfalsifiable: A procedure is either worthy of adherence for its own sake or worthy of adherence because of what it signals to the public. Indeed, the more burdensome the procedural rule, the more convincing the performance of adhering to that rule will be — and the greater the legitimacy payoff. The rhetoric of legitimacy thus transforms a procedure’s costs into a benefit, supplying a ready defense for even the most taxing procedural rule.

Often, too, administrative law deals with the rights and obligations of corporations, for which the very concept of legitimacy is an awkward fit. In general, these artificial entities will have a relatively instrumental attitude toward agency action, and their compliance with the law is less likely to turn on some ambient sense of legal, ethical, or moral obligation. For them, a cold-blooded weighing of the material risks of noncompliance (agency enforcement, shareholder lawsuits, reputational damage, etc.) will matter more.

It’s telling that many of the institutions in our society that enjoy the greatest legitimacy are those least subject to mandatory procedural rules. The Federal Reserve, for example, matters enormously for lives and livelihoods across the country. But it is not subject to the traditional constraints of administrative law. The Fed does not use notice-and-comment rulemaking to set the federal funds rate; as an independent agency, it is exempt from White House oversight; and its activities are largely shielded from judicial review. Yet the Fed faces no crisis of legitimacy. Its 69 percent favorability rating would be the envy of most agencies.

Or take the Department of Defense. The APA exempts anything pertaining to a military function from the procedural obligations that normally attend rulemaking or adjudication and, as Jonathan Masur has argued, “courts have diverged drastically from the principles outlined in . . . administrative law jurisprudence when confronted with cases they understand as involving military or wartime matters.” But the special treatment afforded to the military has not drained it of legitimacy. As Gallup has reported, “while Americans’ faith in many U.S. institutions has fallen from the levels of previous decades, the public’s confidence in the military has remained consistently high.”

Finally, consider the thousands of police agencies — federal, state, and local — scattered throughout the country. As Barry Friedman and Maria Ponomarenko remind us, “of all the agencies of executive government, those that ‘police’ — i.e., that engage in surveillance and employ force — are the most threatening to the liberties of the American people.” Police departments do face challenges to their legitimacy, particularly in minority communities. Yet, even after the Black Lives Matter protests in the summer of 2020, 51 percent of Americans still report that they have confidence in the police. Is that because police follow rigorous administrative procedures? Not at all. “From the standpoint of democratic governance, they are the least regulated,” especially when “compared to the sprawling administrative codes that detail every aspect of agency practice.”

So maybe rigorous legal procedures aren’t necessary for agencies wishing to cultivate their legitimacy with the public. But what about the Constitution? As lawyers constantly remind us, agencies house executive, legislative, and judicial functions under one roof. They thus evade the checks and balances that are supposed to channel the exercise of governmental authority. Agencies are also said to labor under an acute democratic deficit: They lack the populist pedigree of either the legislature or the executive, yet they wield immense power. Against this backdrop, procedures serve as a rough substitute for the deliberation and accountability that attend conventional lawmaking.

It’s almost impossible to overstate how entrenched this perspective has become. Judging from the casebooks, law students are barely introduced to the administrative state before they are told of its enduring tension with the Constitution. Endless pages have been devoted to defending the view that separation-of-powers principles inspire or even compel various aspects of administrative law. The warnings in the case law are dark: Chief Justice Roberts, in deploring the rise of federal agencies, likes to quote James Madison for the view that the “accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.” The lesson is clear: The modern administrative state is a regrettable symptom of constitutional decay.

It is long past time to retire this line of reasoning. The delegations upon which the administrative state rests were not enacted in the teeth of the Constitution. They were enacted pursuant to the Constitution. When we read into the spare text of the Constitution some kind of distaste for agencies — because they wield “too much” power, because they blend functions, or because they’re too insulated from the public will — we are projecting our own anxieties onto a document that does not share them.

Agencies have wielded legislative, executive, and judicial powers from the beginning of the Republic. Their proliferation was essential to the prosecution of two world wars, to the rise of the post–New Deal welfare state, and to the regulation of novel risks ranging from automobile safety to industrial pollution. There must be an expiration date for worrying about the fundamental consistency of the administrative state with our constitutional structure. Surely that date has passed.

Legitimacy arguments that turn on agencies’ perceived democratic deficits are similarly misplaced. Agencies are the products of a democratic process, one in which the legislature and the executive have jointly resolved that delegating to an agency is the best way to serve the public interest. Even if the goal is to insulate agency decisions from the vicissitudes of plebiscitary politics, that’s a democratic choice. Public accountability does not mean that agencies must respond like tuning forks to every change in public opinion, nor does it mean that they must adopt every policy that an unreflective public might endorse. All it means is that agencies must be the product of our collective will and subject to our collective control. And they are: What legislatures can make, legislatures can unmake.

It’s alluring to believe that scrupulous adherence to procedure might redeem the administrative state from its supposed constitutional sins. But it can’t. Constitutional law is generally hostile to second-best solutions. If the administrative state really is constitutionally defective, the only way to restore the balance is to undo the whole damn thing. Because that’s unthinkable, the legitimacy of the administrative state can never — will never — be secure. In the meantime, any procedure that slows, checks, and constrains agencies will be constitutionally virtuous precisely because it hobbles them. And no matter how many more procedures you add, they will never, ever be enough. It’s a sucker’s game, and we should stop playing it.

Capture

When legitimacy runs out as a justification for legally mandated procedures, claims about agency capture — and the attendant lack of public accountability — come to the fore. The meaning of capture has shifted over the decades, and the term is sometimes used loosely to refer to the exercise of any undesirable influence over an agency. More precisely, however, capture arises when relatively small groups deploy their superior organizational abilities to distort governmental decisions at the public’s expense.

Nailing down the scope and extent of capture presents a difficult and probably insoluble problem. In a democracy, it is not intrinsically problematic for a committed minority to prevail over a large, apathetic majority. To the contrary, depending on the relative intensity of views in play, any plausible conception of deliberative democracy suggests that the minority should sometimes prevail. Capture thus does not arise merely because the agency attends to narrow interests. Capture requires something more — namely, a judgment that the pressure brought is undue in some sense. But what counts as undue? When we fight about capture, we’re really fighting over whose views ought to matter most. Naturally, we don’t agree about that, which is why there’s often no consensus over the extent to which capture has taken hold.

At the same time, we all recognize that small, well-heeled groups do punch above their weight in getting what they want from government. Sometimes what they want is less regulation: a less aggressive emissions restriction on a power plant, for example, or a more permissive safety overseer.

But sometimes what they want is protection. With increasing success in recent decades, as Brink Lindsey and Steven Teles document in The Captured Economy, incumbents have used their influence to create barriers to entry and smother competition. Lindsey and Teles canvass four areas in which government action is hard to square with the public interest: Congress’s reckless support for excessive risk-taking at financial institutions; the never-ending expansion of copyright and patent protections; homeowners’ squelching of new development in cities across the country; and the grotesque excesses of occupational licensure. More could be added to the list: the tax-preparer industry’s opposition to the simplification of tax filing; hospitals’ ability to maintain grossly excessive Medicare payments for cancer drugs; and massive federal subsidies for unproductive farms, dairies, and ranches.

The upshot is that insiders exploit their organizational capacity and financial resources to rig the game in their favor. The problem, as Lindsey and Teles argue, is getting worse. Growing concentrations of wealth at the top of the income distribution enable incumbents to more effectively turn government to their own ends. At the same time, a precipitous drop in unionization has meant the loss of a countervailing political force. With bloated coffers and an enervated opposition, the rich and powerful get richer and more powerful, in a cycle with disquieting implications for economic growth and innovation.

Because capture is such a serious problem in 21st-century America, it’s natural to look for solutions. All too often, those solutions come in the form of new procedures for agencies. The assumption is that procedures that demand more deliberation, more transparency, and more rationality will mitigate the risk of capture. That assumption is in some respects reasonable. A more deliberative action will incorporate input from a wider array of actors. A more transparent decision will allow courts and voters to hold agencies accountable when they cater to private interests at the expense of the public. And a more rational decision will reject partisan influence and special pleading.

But there is a curious mismatch here. For all the focus on agency capture, the most corrosive forms of capture tend to arise from forces outside an agency’s control. It is politicians — not agency bureaucrats — whose careers most acutely depend on securing support, financial and otherwise, from powerful groups. That’s why politicians are more likely than civil servants, all else equal, to succumb to capture. If politicians adopt laws that reflect corrupt bargains with powerful groups, insisting on procedural fastidiousness at the agencies that implement those laws will do no good. All it will do is enfeeble agencies — a result that is broadly congenial to the interests of the very groups responsible for capture in the first place.

In any event, it is simply wrong to assume that more procedures will discourage capture because those procedures aim to foster deliberation, transparency, and rationality. The reverse will usually be true. Exploiting a procedural opportunity takes time, attention, and resources. The same interest groups that are the villains of the capture narrative can deploy their relative organizational advantages to pull procedural levers with more frequency and greater expertise than groups representing the public interest. Under common conditions, the proliferation of procedural opportunities will magnify the ability of well-organized groups to influence agency decisions, not the reverse.

Consider, for example, notice-and-comment rulemaking — a process that has long been thought to guard against capture. It turns out that business organizations dominate notice and comment. One study examined 40 rules across four agencies and found that business interests submitted nine times as many comments as did public interest groups. Those comments were also of higher quality and appeared more likely to provoke changes. Another study of 90 Environmental Protection Agency rules governing the release of air toxins found that industry submitted 81 percent of all the comments, with public interest groups submitting just 4 percent — and that EPA’s rules were more apt to be weakened as the number of comments increased. Earlier work examining the development of hazardous waste rules at EPA over a three-year period found that industry groups submitted 30 times more comments than public interest groups.

Collectively, the studies suggest that more comments correlate with more influence. But why? The empirical picture is puzzling because the informational value of comments has nothing to do with their volume. In theory, a single comment from a public-interest group should be at least as persuasive as a deluge of thousands of duplicative comments from industry.

It doesn’t tend to work like that in practice. Although the courts only require agencies to respond to “vital” comments, agencies can’t reliably predict which comments a judge might someday find vital. Risk-averse agencies therefore have little choice but to respond, often in punitive length and detail, to all the substantive comments they receive. At the same time, the law places no filter on the information that commentators can submit to agencies. Recognizing as much, industry swamps agencies with hundreds of comments containing thousands of pages of unstructured, highly technical information, typically pertaining to regulatory costs.

Responding to those comments not only drains agency resources. It also raises the costs of participation for everyone else. Groups that lack the means to participate on the same footing as industry — which is to say, groups representing the public interest — find themselves at a disadvantage in debating industry’s technical arguments. Facing a stark participation imbalance, a rational agency will attend to the interests of those who credibly threaten legal action: better a weak rule than no rule at all. As Wendy Wagner says, “the parties with the resources to feed the information monster will benefit, to the detriment of actors with fewer resources and the administrative system as a whole.”

Similar dynamics plague other well-intentioned efforts to facilitate democratic participation: They are exploited by the powerful at the expense of the public. And so the Freedom of Information Act, as Margaret Kwoka has shown, is used most intensively by “private entities that seek information as part of their profit-making enterprise.” The transparency law is thus transformed into an implicit corporate subsidy. So too with judicial review, which is meant to assure that agencies take the public interest into account, but which as a practical matter favors those with the resources to mount expensive litigation campaigns. Etc., etc.

The point is not that it is impossible to structure agencies to resist the blandishments of well-heeled groups. Better laws and smarter institutional design choices can help agencies to cope with hostile interest-group environments. The point, instead, is that the reflexive adoption of ill-considered procedural rules is more likely to exacerbate capture than combat it.

Stop fetishizing procedure

The central dogma of administrative law is that strict procedural rules are essential to agency legitimacy and necessary for public accountability. That dogma is false. Mandatory legal procedures have a complex, contingent, and ambiguous connection to legitimacy and capture. The dogma is also pernicious. Endlessly wringing our hands over agency legitimacy and accountability breeds contempt for governance. Instead of the instruments of public aspirations, agencies become the bastard stepchildren of a damaged constitutional system, rife with corruption and inside dealing. That dyspeptic vision aligns neatly with the libertarian’s suspicion of government action. But it is difficult to harmonize with a belief in effective governance.

In time, too, the political right may come to regret their efforts to enfeeble the American state. Whatever conservative elites may think, the public has high hopes for what government can deliver. Endlessly frustrating government action may enhance the appeal of a strongman who promises to meet the demands of real Americans by flouting limits on his power. (Donald Trump: “I alone can fix it.”) The end result might be the accumulation of arbitrary powers in the executive branch — exactly the result that conservatives hope to avoid.

Instead of defending procedures at a high level of abstraction (legitimacy! accountability!), we need to take a more granular look at the effects that legally imposed procedures have on the task of governance. Minimalism should be the watchword. New procedures should be greeted with suspicion and old procedures should be revisited, with an eye to cutting them back or eliminating them. Some will be worth retaining: No one wants a latter-day Robert Moses bulldozing neighborhoods with impunity. It’s reasonable, for example, to require agencies to offer reasons for major actions. History and international experience suggest the need for rules protecting the civil service. And some targeted judicial review is appropriate to prevent agencies from flouting legal constraints. Beyond that, however, we should be cautious. Administrative law could achieve more by doing less.

We also need to revive a strain of thinking that connects the legitimacy of the administrative state to its ability to satisfy public aspirations. That means building up our agencies, not devising ever-more elaborate means of tying them down. Antiquated rules that make it hard to hire and retain qualified personnel should be scrapped. Legislatures need to appropriate the funds to expand an overstretched bureaucracy and to pay for top talent, much as some independent agencies can already do. Fewer tasks should be outsourced to poorly supervised contractors; more functions should be brought in-house. And we must make large investments in the information technology that forms the backbone of competent governance.

These aren’t tasks for lawyers, with their fetish for procedural rules. They are tasks for legislators, managers, and policy experts. They are the ones who will drive real regulatory reform and — perhaps — build the government institutions that will allow us to cope with the challenges of the 21st century. The lawyers need to get out of the way.