Agency Hygiene

Texas Law Review

Volumn 89, Issue 1, 2010, Pages 1-14

  Bagley, Nicholas ^a  

^a UNIVERSITY OF MICHIGAN   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79952774212     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (70)

1. Rachel E. Barkow, Insulating Agencies: Avoiding Capture through Institutional Design, 89 TEXAS L. REV. 15 (2010).
2. See Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 COLUM. L. REV. 1260, 1284-92 (2006) (providing a brief intellectual history of capture theory);
3. Barkow, supra note 1, at 21, n.23.
4. For a terse discussion of the contours of modern public choice theory, see JERRY L. MASHAW, GREED, CHAOS, AND GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE PUBLIC LAW 10-21 (1997).
5. Andrew W. Lehren, Millions of Miles of Pipe, and Years of Questions, N.Y. TIMES, Sept. 25, 2010, at A1.
6. See, e.g., U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-04-801, PIPELINE SAFETY: MANAGEMENT OF THE OFFICE OF PIPELINE SAFETY'S ENFORCEMENT PROGRAM NEEDS FURTHER STRENGTHENING 13 (2004).
7. See, e.g., PAUL W. PARFOMAK, CONG. RESEARCH SERV., RL33347, PIPELINE SAFETY AND SECURITY: FEDERAL PROGRAMS 15-16 (2008).
8. See Lehren, supra note 4, at A1.
9. KAY LEHMAN SCHLOZMAN & JOHN T. TIERNEY, ORGANIZED INTERESTS AND AMERICAN DEMOCRACY 344 (1986) (''Capture is not by any means the norm, and where capture occurs, it does not always last.'').
10. PAUL J. QUIRK, INDUSTRY INFLUENCE IN FEDERAL REGULATORY AGENCIES 31- 32, 177 (1981) (testing incentives related to capture theory at four federal agencies and finding it wanting).
11. See 49 U.S.C. § 60105(a) (2006).
12. See George J. Stigler, The Theory of Economic Regulation, 2 BELL J. ECON. & MGMT. SCI. 3, 3 (1971) (arguing that ''regulation is acquired by the industry and is designed and operated primarily for its benefit'').
13. Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1667, 1685-86 (1975).
14. See Mark Seidenfeld, Bending the Rules: Flexible Regulation and Constraints on Agency Discretion, 51 ADMIN. L. REV. 429, 459 (1999).
15. Bagley & Revesz, supra note 2, at 1285.
16. SCHLOZMAN & TIERNEY, supra note 8, at 342.
17. Barkow, supra note 1, at 22.
18. See SCHLOZMAN & TIERNEY, supra note 8, at 341
19. ''Just as there is no single theory of the origins of regulatory capture, there is no single explanation of how capture is perpetuated.'')
20. See Jerry L. Mashaw & David L. Harfst, Regulation and Legal Culture: The Case of Motor Vehicle Safety, 4 YALE J. ON REG. 257, 271-72 (1987) (observing that regulatory regimes necessarily benefit some groups, and that those groups will normally ''attempt to sustain or even improve these beneficial results'').
21. Cf. Philip Shabecoff, Jury in E.P.A. Case Finds Lavelle Guilty of Perjury, N.Y. TIMES, Dec. 2, 1983, at A1 (recounting the criminal conviction of an EPA administrator for impeding Congressional investigations into hazardous waste programs).
22. See JAMES Q. WILSON, BUREAUCRACY: WHAT GOVERNMENT AGENCIES DO AND WHY THEY DO IT 31 (1989) (''In the United States, high-level government executives are preoccupied with maintaining their agencies in a complex, conflict-ridden, and unpredictable political environment, and middle-level government managers are immersed in the effort to cope with the myriad constraints that this environment has imposed on their agencies.'').
23. See U.S. GEN. ACCOUNTING OFFICE, GAO/HEHS-97-147, CONSUMER PRODUCT SAFETY COMMISSION: BETTER DATA NEEDED TO HELP IDENTIFY AND ANALYZE POTENTIAL HAZARDS 22 (1997) (reporting that data collected by the CPSC is ''generally insufficient to support thorough and detailed analysis'').
24. U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-09-803, CONSUMER SAFETY: BETTER INFORMATION AND PLANNING WOULD STRENGTHEN CPSC'S OVERSIGHT OF IMPORTED PRODUCTS 13 (2009) (finding that ''CPSC's authorities have the potential to be effective,'' but that ''implementation is limited by competing priorities and resource and practical constraints'').
25. AboutGAO,U.S.GOV'TACCOUNTABILITYOFFICE(2010), http://www.gao.gov/about/index.html.
26. See, e.g., Bowsher v. Synar, 478 U.S. 714, 728 (1986) (observing that the Comptroller General, who heads GAO, is removable by Congress '''at any time''' (quoting 31 U.S.C. § 703(e)(1) (1982))).
27. Charlie Savage, Sex, Drug Use and Graft Cited in Interior Department, N.Y. TIMES, Sept. 11, 2008, at A1;
28. Noelle Straub, Interior Probe Finds Fraternizing, Porn and Drugs at MMS Office in La., N.Y. TIMES(May 25,2010), http://www.nytimes.com/gwire/2010/05/25/25greenwire-interior-probe-finds-fraternizing-porn-and-dru-45260.html?emc=eta1.
29. See U.S. SEC. & EXCH. COMM'N, OFFICE OF INSPECTOR GEN., SEMIANNUAL REPORT TO CONGRESS: OCTOBER 1, 2009-MARCH 31, 2010, at 55 (2010) (finding an apparent violation of ethics rules prohibiting former government employees from ''working on matters in which that individual participated as a government employee'').
30. U.S. SEC. & EXCH. COMM'N, OFFICE OF THE INSPECTOR GEN., CASE NO. OIG-526, INVESTIGATION OF THE SEC'S RESPONSE TO CONCERNS REGARDING ROBERT ALLEN STANFORD'S ALLEGED PONZI SCHEME 28 (2010) [hereinafter INVESTIGATION OF THE SEC'S RESPONSE TO STANFORD'S ALLEGED PONZI SCHEME] (same).
31. See Inspector General Act of 1978, 5 U.S.C. app. 2 § 3(a) (2006) (providing that IGs at cabinet-level agencies ''shall be appointed by the President, by and with the advice and consent of the Senate, without regard to political affiliation and solely on the basis of integrity and demonstrated ability'').
32. See id. § 6(a)-(b) (providing IGs with broad access to records and mandating investigatory assistance from agency heads).
33. See id. § 6(c) (requiring agencies to give IGs office space within ''central and field office locations'').
34. See PAUL C. LIGHT, MONITORING GOVERNMENT: INSPECTORS GENERAL AND THE SEARCH FOR ACCOUNTABILITY 16(1993)(noting that IGs have become''instruments of retrospective, or backward-looking, compliance rather than catalysts for either performance incentives or capacity building'').
35. Inspector General Act of 1978, 5 U.S.C. app. 2 § 2(2);
36. see also LIGHT, supra note 28, at 40 (calling ''fraud, waste, and abuse'' the ''three horsemen'' of the IG concept).
37. Cf. LIGHT, supra note 28, at 16 (noting that IGs ''are to look, not act; recommend, not implement'').
38. See Eric Lipton, 3 Congressmen May Face Further Inquiry, N.Y. TIMES, Sept. 1, 2010, at A13 (reporting on lawmakers who held fund-raising events with lobbyists and executives of financial firms ''just days before they voted on financial regulatory legislation last year'').
39. See H.R. COMM. ON OVERSIGHT AND GOV'T REFORM, 110TH CONG., MAJORITY STAFF REP.: FDA CAREER STAFF OBJECTED TO AGENCY PREEMPTION POLICIES 4 (2008) (noting that FDA ''ignored the warnings from FDA scientists and career officials'' that a generous policy toward pharmaceuticals ''was based on erroneous assertions'').
40. See Leslie Wayne, Ex-Pentagon Official Gets 9 Months for Conspiring to Favor Boeing, N.Y. TIMES, Oct. 2, 2004, at C1 (reporting the admission of a former Air Force procurement official that a military contractor ''would not have been selected for some military projects or would have received lower payments if not for her efforts to obtain jobs for herself, her daughter and her son-in- law'').
41. See INVESTIGATION OF THE SEC'S RESPONSE TO STANFORD'S ALLEGED PONZI SCHEME, supra note 24, at 17 (critiquing the SEC practice of prosecuting easy cases to inflate ''stats'' and ignoring complex, but more serious, frauds).
42. See Barkow, supra note 1, at 62-64 (discussing public advocates).
43. Protecting the Public Interest: Understanding the Threat of Agency Capture: Hearing Before the S. Subcomm. on Admin. Oversight and the Courts of the S. Judiciary Comm., 111 th Cong. (2010) (statement of Sen. Whitehouse), webcast available at http://judiciary.senate.gov/ hearings/hearing.cfm?id=4746 (statement at 93:30).
44. See, e.g., Emergency Economic Stabilization Act of 2008, Pub. L. No. 110-343, § 125(d)(3), 122 Stat. 3765, 3793 (to be codified at 12 U.S.C. 5233) (permitting agencies to ''detail, on a reimbursable basis, any of the personnel of that department or agency to the [congressional] Oversight Panel to assist it in carrying out its duties under this Act'').
45. Cf. Richard L. Revesz, Specialized Courts and the Administrative Lawmaking System, 138 U. PA. L. REV. 1111, 1148-50 (1990) (explaining that capture is less likely to take hold at bodies beholden to diverse interest groups).
46. See Eric Biber, Too Many Things To Do: How to Deal with the Dysfunctions of Multiple Goal Agencies, 33 HARV. ENVTL. L. REV. 1, 7 (2009).
47. See id. at3(''[F]ederal public land management agencies have been accused of systematically privileging one or more of their goals-often related to economic development-over others-often related to environmental protection.'').
48. Matthew 6:24 (King James) (''No man can serve two masters: for either he will hate the one, and love the other; or else he will hold to the one, and despise the other.'').
49. Barkow, supra note 1, at 65-72.
50. Congress recently enacted a reform bill in response to the public outcry over lead paint in children's toys. Consumer Product Safety Improvement Act of 2008, Pub. L. No. 110-314, § 101, 122 Stat. 3016, 3017 (to be codified at 15 U.S.C. 1278a). The early returns suggest that the legislation has fallen short of revitalizing the agency.
51. See, e.g., Andrew Martin, Toy Makers Fight for Exemption from Rules, N.Y. TIMES, Sept. 29, 2010, at A1 (noting that CSPC commissioners have failed on three separate occasions to reach an agreement on the definition of ''children's product'').
52. E.g., NAT'L COMM'N ON TERRORIST ATTACKS UPON THE U.S., THE 9/11 COMMISSION REPORT (2004).
53. Barkow, supra note 1, at 59.
54. See Bagley & Revesz, supra note 2, at 1305-06.
55. See SCHLOZMAN & TIERNEY, supra note 8, at 346 (observing that during the early 1980s, ''EPA was not so much captured by industry as donated to it by the Reagan administration'').
56. Cf. MARVER H. BERNSTEIN, REGULATING BUSINESS BY INDEPENDENT COMMISSION 282- 87 (1955) (documenting capture at independent agencies).
57. SEC'Y OF THE INTERIOR, U.S. DEP'T OF THE INTERIOR, ORDER NO. 3299 (2010).
58. 5 U.S.C. app. Reorganization Plan No. 3 of 1950 § 2 (2006).
59. 5 U.S.C. app. Reorganization Plan No. 5 of 1950 § 2 (2006).
60. 5 U.S.C. app. Reorganization Plan No. 6 of 1950 § 2 (2006).
61. 5 U.S.C. app. Reorganization Plan No. 8 of 1950 § 2 (2006).
62. 5 U.S.C. app. Reorganization Plan No. 10 of 1950 § 2 (2006).
63. 6 U.S.C. § 112(a)(3), (b)(1) (2006).
64. 31 U.S.C. § 321(b)(2), (c) (2006) (but declining to vest in the Secretary the duties of administrative law judges, the Comptroller of the Currency, and the now-defunct Office of Thrift Supervision).
65. Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, § 202(b)(2), 105 Stat. 1733, 1737 (codified as amended at 8 U.S.C. § 1101 note).
66. See H.R. REP. NO. 100-747, pt. 1, at 3 (1988) (reporting favorably on amendments requiring hearings on an agency report and providing that the relevant Senate committee ''shall issue a report not later than 270 days after that date which describes the findings and recommendations of the committee regarding. appropriate action'').
67. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 3403(a), 124 Stat. 119, 489 (2010) (to be codified at 42 U.S.C. § 1395kkk);
68. cf. Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, Pub. L. No. 109-13, § 102(c)(1), 119 Stat. 231, 306 (codified as amended at 8 U.S.C. § 1103 note) (authorizing the Secretary of Homeland Security, in his ''sole discretion,'' to ''waive all legal requirements'' pertaining to the border fence ''[n]otwithstanding any other provision of law'').
69. Patient Protection and Affordable Care Act § 3403(e)(1), 124 Stat. at 499.
70. But see Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 322 (2000) (observing that''the conventional doctrine has had one good year, and211 bad ones (and counting)'').