Assessing inter-institutional attention to and influence on government regulations

British Journal of Political Science

Volumn 36, Issue 4, 2006, Pages 723-744

  Yackee, Susan Webb ^a  

^a UNIVERSITY OF SOUTHERN CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33747881923     PISSN: 00071234     EISSN: 14692112     Source Type: Journal    
DOI: 10.1017/S000712340600038X     Document Type: Article

References (142)

1. Jeffrey M. Berry, The Interest Group Society, 2nd edn (Glenview, 111.: Scott Foresman, 1989), p. 147.
2. Marissa Martino Golden, 'Interest Groups in the Rule-Making Process: Who Participates? Whose Voices Get Heard?' Journal of Public Administration Research and Theory, 8 (1998), 245-70, p. 245.
3. B. Guy Peters, American Public Policy: Promise and Performance, 5th edn (Chappaqua, N.Y.: Seven Bridges Press, 1999), p. 76.
4. Cornelius M. Kerwin and Scott R. Furlong, 'Time and Rulemaking: An Empirical Test of Theory', Journal of Public Administration Research and Theory, 2 (1992), 113-38, p. 114.
5. William F. Funk, Sidney A. Shapiro and Russell L. Weaver, Administrative Procedure and Practice: Problems and Cases (St Paul, Minn.: West Publishing, 1997), p. 19.
6. Stephen P. Croley, 'Theories of Regulation: Incorporating the Administrative Process', Columbia Law Review, 98 (1998), 85-168, p. 113.
7. William F. West, 'Formal Procedures, Informal Procedures, Accountability, and Responsiveness in Bureaucratic Policy Making: An Institutional Policy Analysis', Public Administration Review, 64 (2004), 66-80, p. 66.
8. Such as B. Dan Wood and Richard W. Waterman, Bureaucratic Dynamics: The Role of a Bureaucracy in a Democracy (Boulder, Colo.: Westview Press, 1994).
9. Mathew McCubbins, Roger G. Noll and Barry R. Weingast, 'Administrative Procedures as Instruments of Political Control', Journal of Law, Economics, and Organization, 3 (1987), 243-77;
10. Mathew McCubbins, Roger G. Noll and Barry R. Weingast, 'Structure and Process as Solutions to the Politicians Principal-Agency Problem', Virginia Law Review, 74 (1989), 431-82.
11. Steven J. Balla, 'Administrative Procedures and Political Control of the Bureaucracy', American Political Science Review, 92 (1998), 663-73;
12. David C. Nixon, Robert M. Howard and Jeff R. DeWitt, 'With Friends Like These: Rule-Making Comment Submissions to the Securities and Exchange Commission', Journal of Public Administration Research and Theory, 12 (2002), 59-76;
13. James T. Hamilton, 'Going by the (Informal) Book: The EPA's Use of Informal Rules In Enforcing Hazardous Waste Laws', Advances in the Study of Entrepreneurship, Innovation, and Growth, 1 (1996), 109-55.
14. Terry M. Moe, 'The Politicized Presidency', in John E. Chubb and Paul Peterson, eds, New Directions in American Politics (Washington, D.C.: The Brookings Institution, 1985);
15. William F. West, Controlling the Bureaucracy: Institutional Constraints in Theory and Practice (New York: M. E. Sharpe, 1995).
16. See Stephen P. Croley, 'White House Review of Agency Rulemaking: An Empirical Investigation', University of Chicago Law Review, 70 (2003), 820-85.
17. Such as John E. Chubb, Interest Groups and the Bureaucracy: The Politics of Energy (Stanford, Calif: Stanford University Press, 1983); Balla, 'Administrative Procedures and Political Control of the Bureaucracy'; West, 'Formal Procedures, Informal Procedures, Accountability, and Responsiveness in Bureaucratic Policy Making'.
18. Golden, 'Interest Groups in the Rule-Making Process'.
19. Cornelius M. Kerwin, Rulemaking: How Government Agencies Write Law and Make Policy, 3rd edn (Washington, D.C.: CQ Press, 2003);
20. Scott R. Furlong, 'Interest Group Influence on Rule Making', Administration and Society, 29 (1997), 325-48;
21. Scott R. Furlong, 'Political Influence on the Bureaucracy: The Bureaucracy Speaks', Journal of Public Administration Research and Theory, 8 (1998), 39-65.
22. Chubb, Interest Groups and the Bureaucracy;
23. David B. Spence, 'Agency Discretion and the Dynamics of Procedural Reform', Public Administration Review, 59 (1999), 425-40;
24. Balla, 'Administrative Procedures and Political Control of the Bureaucracy'; Hamilton, 'Going by the (Informal) Book;
25. James T. Hamilton and Christopher Schroeder, 'Strategic Regulators and the Choice of Rulemaking Procedures: The Selection of Formal vs. Informal Rules in Regulating Hazardous Waste', Law and Contemporary Problems, 57 (1994), 111-60.
26. James Q. Wilson, Political Organizations (New York: Basic Books), chap. 16;
27. James Q. Wilson, The Politics of Regulation (New York: Basic Books), chap. 10.
28. Such as: West, 'Formal Procedures, Informal Procedures, Accountability, and Responsiveness in Bureaucratic Policy Making';
29. Furlong, 'Interest Group Influence on Rule Making';
30. Wesley A. Magat, Alan J. Krupnick and Winston Harrington, Rules in the Making: A Statistical Analysis of Regulatory Agency Behavior (Washington, D.C.: Resources for the Future, 1986).
31. Many agencies have the autonomy to initiate rule making on their own when the rule furthers the agency's underlying organizational mission. For example, the Occupational Safety and Health Administration's (OSHA) mandate is to protect workers, and it can initiate rules to accomplish this goal without additional legislative action from Congress and the President.
32. See APA §553(b) and (c). This framework has been updated over time by the courts; however, the procedural regularity of rule making established in the APA remains.
33. West, Controlling the Bureaucracy,
34. Kerwin, Rulemaking.
35. Rules are subject to judicial review and numerous court cases have established that agencies must take comments seriously, and if the agency is in disagreement with the commenters, must justify agency actions or lack thereof (Martin Shapiro, Who Guards the Guardians? Judicial Control of Administration (Athens: The University of Georgia Press, 1988);
36. Robert L. Rabin, 'Federal Regulation in Historical Perspective', Stanford Law Review, 38 (1986), 1295-315;
37. Thomas O. McGarity, 'Some Thoughts on "Deossifying" the Rulemaking Process', Duke Law Journal, 41 (1992), 1384-1462;
38. Thomas O. McGarity, 'The Courts and the Ossification of Rulemaking: A Response to Professor Seidenfeld', Texas Law Review 75 (1997), 525-58.
39. Participation costs may be high because of a need to monitor the Federal Register for notices of proposed rule making, to understand complex technical and scientific information or to construct convincing comments. See Kerwin, Rulemaking',
40. William F. West, Administrative Rulemaking: Politics and Processes (Westport, Conn.: Greenwood Press, 1985);
41. Jim Rossi, 'Participation Run Amok: The Costs of Mass Participation for Deliberative Agency Decisionmaking', Northwestern University Law Review, 92 (1997), 173-249.
42. The empirical research on those who participate in making comments indicates that organized interests are the primary contributors to the notice and comment period (see Kerwin, Rulemaking', Golden, 'Interest Groups in the Rule-Making Process'.
43. Jonathan Bendor and Terry M. Moe, 'An Adaptive Model of Bureaucratic Politics', American Political Science Review, 79 (1985), 755-844;
44. Mathew D. McCubbins, 'Legislative Design of Regulatory Structure', American Journal of Political Science, 29 (1985), 721-48;
45. Randell L. Calvert, Mathew D. McCubbins and Barry R. Weingast, 'A Theory of Political Control and Agency Discretion', American Journal of Political Science, 33 (1989), 588-611.
46. Mathew D. McCubbins and Thomas Schwartz, 'Congressional Oversight Overlooked: Police Patrols versus Fire Alarms', American Journal of Political Science, 28 (1984), 164-79;
47. Joel D. Aberbach, Keeping a Watchful Eye: The Politics of Congressional Oversight (Washington, D.C.: The Brookings Institution, 1990);
48. Joel D. Aberbach, 'What's Happened to the Watchful Eye?' Congress and the Presidency, 29 (2002), 3-24.
49. John D. Huber and Charles R. Shipan, Deliberate Discretion ? The Institutional Foundations of Bureaucratic Autonomy (New York: Cambridge University Press, 2002).
50. John D. Huber and Charles R. Shipan, 'The Costs of Control: Legislators, Agencies, and Transaction Costs', Legislative Studies Quarterly, 25 (2000), 25-52;
51. B. Dan Wood and John Bohte, 'Political Transaction Costs and the Politics of Administrative Design', Journal of Politics, 66 (2004), 176-202.
52. Moe, 'The Politicized Presidency';
53. West, Controlling the Bureaucracy.
54. Morris S. Ogul, Congress Oversees the Bureaucracy: Studies in Legislative Supervision (Pittsburgh, Perm.: The University of Pittsburgh Press, 1976);
55. Seymour Scher, 'Conditions for Legislative Control', Journal of Politics, 25 (1963), 526-51.
56. Barry R. Weingast, 'Regulation, Re-regulation, and Deregulation: The Political Foundations of Agency Clientele Relationships', Law and Contemporary Problems, 44 (1981), 147-77.
57. Scholars point to congressional and presidential techniques that ease the direct monitoring costs for elected officials. In particular, some have argued that the best way to solve the problems associated with the principal-agent relationship is to structure the incentives of agents (bureaucrats) so they are inclined to work towards the principal's (elected officials) goals (such as McCubbins, Noll and Weingast, 'Administrative Procedures as Instruments of Political Control'; McCubbins, Noll and Weingast, 'Structure and Process as Solutions to the Politicians Principal-Agency Problem'). Other scholars point to specific constraints placed on agencies, such as whether legislation contains a deadline before which an agency has to act (see Kerwin, Rulemaking;
58. Magat, Krupnick and Harrington, Rules in the Making).
59. The terms 'attention' and 'control' are used here to place a finer distinction on the ability of stakeholders to influence bureaucratic behaviour. The term 'attention' portrays a potentially responsive relationship between agencies and elected officials without having agency policy preferences removed from consideration and also allowing agencies to strategically react to elected officials.
60. Croley, 'White House Review of Agency Rulemaking'.
61. Marver Berstein, Regulating Business by Independent Commission (Princeton, N.J.: Princeton University Press, 1955);
62. Francis E. Rourke, Bureaucracy, Politics, and Public Policy, 3rd edn (Boston, Mass.: Little, Brown, 1984).
63. Joseph A. Pika, 'Interest Groups and the Executive: Presidential Intervention', in Allan J. Cigler and Burdett A. Loomis, eds, Interest Group Politics (Washington, D.C.: CQ Press, 1983);
64. Ronald J. Hrebenar, Interest Group Politics in America, 3rd edn (Armonk, N. Y.: M. E. Sharpe, 1997).
65. Croley, 'Theories of Regulation'.
66. Hrebenar, Interest Group Politics in America, 3rd edn;
67. Rourke, Bureaucracy, Politics, and Public Policy.
68. Berry, The Interest Group Society.
69. Hrebenar, Interest Group Politics in America, Pika, 'Interest Groups and the Executive'.
70. Daniel P. Carpenter, 'Groups, the Media, Agency Waiting Costs, and PDA Drug Approval', American Journal of Political Science, 46 (2002), 490-505.
71. Rourke, Bureaucracy, Politics, and Public Policy.
72. James Q. Wilson, Bureaucracy: What Government Agencies Do and Why They Do It (New York: Basic Books, 1989); Carpenter, 'Groups, the Media, Agency Waiting Costs, and FDA Drug Approval'.
73. McCubbins and Schwartz, 'Congressional Oversight Overlooked'.
74. Chubb, Interest Groups and the Bureaucracy;
75. West, Controlling the Bureaucracy;
76. Kerwin, Rulemaking;
77. Patrick Schmidt, 'Pursuing Regulatory Relief: Strategic Participation and Litigation in U.S. OSHA Rulemaking', Business and Politics, 4 (2002), 71-89.
78. Wilson, Political Organizations;
79. Wilson, The Politics of Regulation.
80. Such as Wilson, Bureaucracy;
81. Daniel P. Carpenter, The Forging of Bureaucratic Autonomy: Reputations, Networks, and Policy Innovations in the Executive Agencies, 1862-1928 (Princeton N.J.: Princeton University Press, 2001);
82. Huber and Shipan, Deliberate Discretion?
83. Rourke, Bureaucracy, Politics, and Public Policy;
84. Larry B. Hill, 'Who Governs the American Administrative State? A Bureaucratic-Centered Image of Governance', Journal of Public Administration Research and Theory, 3 (1991), 261-94.
85. West, Controlling the Bureaucracy;
86. William Niskanen, Bureaucracy and Representative Government (Chicago, Ill.: Aldine, 1971);
87. David Epstein and Sharyn O'Halloran, 'Administrative Procedures, Information, and Agency Discretion', American Journal of Political Science, 38 (1994), 697-722.
88. Spence, 'Agency Discretion and the Dynamics of Procedural Reform';
89. Evan J. Ringquist, 'Political Control and Policy Impact in EPA's Office of Water Quality', American Journal of Political Science, 39 (1995), 336-63.
90. Balla, 'Administrative Procedures and Political Control of the Bureaucracy';
91. Hamilton, 'Going by the (Informal) Book'.
92. Chubb, Interest Groups and the Bureaucracy;
93. Kerwin, Rulemaking.
94. Chubb, Interest Groups and the Bureaucracy; Schmidt, 'Pursuing Regulatory Relief.'
95. McCubbins, Noll and Weingast, 'Administrative Procedures as Instruments of Political Control';
96. McCubbins, Noll and Weingast, 'Structure and Process as Solutions to the Politicians Principal-Agency Problem.'
97. McCubbins and Schwartz, 'Congressional Oversight Overlooked'.
98. Steven J. Balla and John R. Wright, 'Interest Groups, Advisory Committees, and Congressional Control of the Bureaucracy', American Journal of Political Science, 45 (2001), 799-812.
99. Frank Baumgartner and Beth L. Leech, Basic Interests (Princeton, N.J. Princeton University Press, 1998), p. 144.
100. Golden, 'Interest Groups in the Rule-Making Process';
101. Nixon, Howard and DeWitt, 'With Friends Like These';
102. but see Magat, Krupnick and Harrington, Rules in the Making.
103. The data limitations surround the OMB significance variable.
104. Golden, 'Interest Groups in the Rule-Making Process';
105. Kerwin, Rulemaking.
106. I relied on the Federal Register Index to detect rules promulgated by OSHA, FRA and ES A. I used the DOT website to obtain the rule and comment information for FHWA. DOT has an on-line docket system that provides the rule making activities for FHWA. The FHWA rules were placed on-line in a random fashion; yet information on rules promulgated before 1998 is limited.
107. Four rules came from OSHA, four from ESA and three from FHWA. Additionally, I faced missing data problems in the archived information that caused the further exclusion of two rules from OSHA, two from ESA and one from FRA. Sensitivity analysis uncovered no patterns in the missing data.
108. I use Kerwin's definition of interest groups (also 'organized interests'). He suggests 'companies, business and trade associations, unions, other levels of government, and the so-called public interest groups' (Kerwin, Rulemaking, p. 178).
109. I selected six rules (15 per cent) to be coded twice, including one rule from OSHA, one from ESA and two rules from FRA and FHWA. I employed van der Eijk's measure of agreement for all ordinal-level variables in the analysis, which ranges from - 1 to +1.1 used percentage agreement for non-ordinal variables (see Gees van der Eijk, 'Measuring Agreement in Ordered Ranking Scales', Quality and Quantity, 35 (2001), 325-41.
110. The coders counted up the number and type of changes that took place between the proposal and the final rule to differentiate between weak and moderate shifts. The coding rule was that when an agency made a few minor changes that shifted the final rule towards more (or less) regulation then a 0.5 would be recorded; however, if there were many minor changes or major alterations then a 1 would be recorded.
111. The standard deviation is 0.618.
112. If there was no discernable regulatory dimension, then a missing value was recorded.
113. The average and standard deviation for the predictor variable were -0.261 and 0.342, respectively.
114. For instance, in reality, some groups have more access, resources or political power than others.
115. Wilson, Political Organizations;
116. Wilson, The Politics of Regulation.
117. Five changes were recorded for most rules. However, in a number of cases, five separate effects did not emerge in the comments, and in these cases, only the top four, three or two changes were evaluated.
118. The variable's mean score was 0.249 with a standard deviation of 0.891.
119. The variable's mean score was 0.475 with a standard deviation of 0.506.
120. This measure was constructed broadly, and I coded hearings of the general issue and the specific rule. I used oversight hearings slightly before the issuance of the rule and during the rule making activity.
121. The mean score was 0.95. The standard deviation was 1.037.
122. Due to the size difference between the institutions, I counted each senator 4.3 times; thus, making the institutions comparable and accounting for the relative importance of one senator to one congressional representative.
123. The variable's mean score was 0.325 with a standard deviation of 0.474.
124. President Clinton also made reducing government regulation a priority of his administration.
125. William Gormley, 'Regulatory Issue Networks in a Federal System', Polity, 18 (1986), 595-620;
126. Jeff Worsham, Marc Allen Eisner and Evan J. Ringquist, 'Assessing the Assumptions: A Critical Analysis of Agency Theory', Administration and Society, 218 (1997), 419-42;
127. Evan Ringquist, Jeff Worsham and Marc Allen Eisner, 'Salience, Complexity, and the Legislative Direction of Regulatory Bureaucracies', Journal of Public Administration Research and Theory, 12 (2003), 141-64.
128. He writes, '[a] highly salient issue is one that affects a large number of people in a significant way' and 'a highly complex issue is one that raises factual questions that cannot be answered by generalists or laypersons' (Gormley, 'Regulatory Issue Networks in a Federal System', p. 598).
129. The mean was 1.825 with a standard deviation of 0.874. The complexity measure's average was 2.15 and standard deviation of 1.167.
130. I also measured complexity by way of the page length of the final rule and the number of weeks between the issuance of the proposal and the final rule. The OMB significance measure may be considered another measure of rule salience.
131. I used ordinary least squares regression to check the robustness of the results, and similar findings emerged. (2) Auxiliary regressions did not suggest a collinearity problem. (3) I included a simple frequency variable in the basic model to tap the total number of comments per rule, which helped me assess the appropriateness of the rule-level averages. The frequency variable was insignificant, suggesting that the findings were not caused by unit of analysis discrepancies. (4) I tested for a violation parallel regression assumption in the basic specification of the model and the results indicated that assumption was not violated. (5) I created an alternative measure of the main predictor variable by tapping the proportion of commenters that sought more (or less) regulation. This additional measuring strategy yielded analogous findings. (6) I used a number of additional control variables to assess the robustness of the conclusions, including measures related to rule hearings, working groups, rules with a small number of comments (under three), and rules with many comments (over 100). The inclusion of these indicators did not effect the conclusions drawn from the model.
132. Golden, 'Interest Groups in the Rule-Making Process';
133. Chubb, Interest Groups and the Bureaucracy.
134. One rival expectation was that after the inclusion of variables tapping the direction of the general regulatory environment provided for by the Congress, the key explanatory variables would drop from significance. This scenario does not play out in the data.
135. Croley, 'White House Review of Agency Rulemaking'.
136. See Furlong, 'Interest Group Influence on Rule Making';
137. Magat, Krupnick and Harrington, Rules in the Making;
138. West, 'Formal Procedures, Informal Procedures, Accountability, and Responsiveness in Bureaucratic Policy Making'.
139. Golden, 'Interest Groups in the Rule-Making Process';
140. Croley, 'Theories of Regulation;
141. West, 'Formal Procedures, Informal Procedures, Accountability, and Responsiveness in Bureaucratic Policy Making';
142. Kerwin, Rulemaking.