Deweyan democracy and the administrative state

Harvard Law Review

Volumn 125, Issue 2, 2011, Pages 580-601

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EID: 84055172793     PISSN: 0017811X     EISSN: None     Source Type: Journal    
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References (233)

1. James O. Freedman, Crisis and Legitimacy in the Administrative Process, 27 STAN. L. REV. 1041, 1044 & n.15 (1975).
2. Though the political branches have relied upon agencies to effectuate policy decisions since the founding, see id. at 1044-45, the New Deal administrative state marked a much bolder departure from the existing constitutional structure.
3. Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013, 1055 (1984).
4. Since the New Deal, "criticism of the administrative agencies has been animated by a strong and persisting challenge to the basic legitimacy of the administrative process itself." JAMES O. FREEDMAN, CRISIS AND LEGITIMACY 10 (1978).
5. Felix Frankfurter, The Task of Administrative Law, 75 U. PA. L. REV. 614, 614 (1927)
6. ('The control of banking, insurance, public utilities, finance, industry, the professions, health and morals, in sum, the manifold response of government to the forces and needs of modern society, is building up a body of laws not written by legislatures ... . These powers are lodged in a vast congeries of agencies.').
7. Christopher F. Edley, Jr., ADMINISTRATIVE LAW 4-7 (1990)
8. (remarking that '[t]he 'administrative' state is now inevitable because of the ever-lengthening agenda of complex public policy problems and the institutional limitations of legislatures' id. at 5).
9. Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1667, 1675-1678 (1975).
10. Jody Freeman, Collaborative Governance in the Administrative State, 45 UCLA L. REV. 1, 4 n.5 (1997)
11. ('Legitimacy is ... often conflated with the concept of accountability.'); cf. Edward Rubin, The Myth of Accountability and the Anti-Administrative Impulse, 103 MICH. L. REV. 2073, 2097 (2005) (contending that current accountability arguments are inconsistent and grounded in a 'hostility to modern administrative government').
12. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2334-2335 (2001).
13. See infra p. 584; see also, e.g., Stewart, supra note 4, at 1683; cf. Freeman, supra note 5, at 5 (distinguishing her theory of collaborative governance from the pluralist, interest group representation model).
14. Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988)
15. (exploring implications of republicanism for modern public law, including administrative law, and arguing for reforms to increase opportunities for public deliberation). See generally Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 HARV. L. REV. 1511 (1992) (arguing for broader citizen participation in administrative government).
16. Freeman, supra note 5, at 3.
17. Christopher Edley, Jr., The Governance Crisis, Legal Theory, and Political Ideology, 1991 DUKE L.J. 561, 561.
18. Freedman, supra note 1, at 1045 ('The failure of the federal administrative agencies to still the recurrent sense of crisis as to their legitimacy ... presents questions worthy of a serious quest for understanding ... .').
19. JOHN DEWEY, THE PUBLIC AND ITS PROBLEMS (1927).
20. DEWEY, supra note 12, at 177-179.
21. section II.B, pp. 591-94. Even at their most 'refreshingly democratic' stage of formal rulemaking, Michael Asimow, On Pressing McNollgast to the Limits: The Problem of Regulatory Costs, LAW & CONTEMP. PROBS., Winter 1994, at 127, 129, agencies exhibit a merely 'passive reliance on waiting for people and groups to realize they have an interest in the regulation'
22. Mariano-Florentino Cuéllar, Rethinking Regulatory Democracy, 57 ADMIN. L. REV. 411, 490 (2005).
23. Jason Webb Yackee & Susan Webb Yackee, A Bias Towards Business? Assessing Interest Group Influence on the U.S. Bureaucracy, 68 J. POL. 128, 135 (2006)
24. (reporting study findings). In informal rulemaking and guidance settings, agencies operate at a further remove from their respective publics.
25. Nina A. Mendelson, Regulatory Beneficiaries and Informal Agency Policymaking, 92 CORNELL L. REV. 397, 417, 420-433 (2007)
26. (arguing that '[w]e should see the interests of regulatory beneficiaries in the way an agency carries out its mandate as real interests, and ensure that beneficiaries too are among those that can hold an agency accountable' id. at 417, but detailing the ways in which guidance documents undermine agency accountability to regulatory beneficiaries).
27. JOHN DEWEY, The Need for a Recovery of Philosophy (1917)
28. Reprinted in 10 THE MIDDLE WORKS, 1899-1924, at 3, 46(Jo Ann Boydston ed., 1980) ('Philosophy recovers itself when it ... becomes a method ... for dealing with the problems of men [sic].').
29. Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010) (codified in scattered sections of the U.S. Code) (creating the agency).
30. Stewart, supra note 4, at 1671. 'The subject of legitimacy is concerned with popular attitudes toward the exercise of governmental power. Such attitudes focus upon whether governmental power is being held and exercised in accordance with a nation's laws, values, traditions, and customs.' FREEDMAN, supra note 1, at 10.
31. Freeman, supra note 5, at 3 ('That the rule-making process is ossified, that implementation is inconsistent, and that enforcement is at best sporadic are by now uncontroversial claims.').
32. Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. REV. 461, 465-466 (2003).
33. Kagan, supra note 6, at 2331.
34. Freedman, supra note 1, at 1043.
35. Edley, supra note 10, at 563.
36. Kagan, supra note 6.
37. Id. at 2331-2332.
38. Id. at 2339; see also Bressman, supra note 19, at 486-87, 490-91 (summarizing the argument). For an overview of the expansion of presidential control over administration since President Reagan.
39. Cynthia R. Farina, The "Chief Executive" and the Quiet Constitutional Revolution, 49 ADMIN. L. REV. 179, 180 (1997).
40. Kagan, supra note 6, at 2247-2250.
41. Cynthia R. Farina, The Consent of the Governed: Against Simple Rules for a Complex World, 72 CHI.-KENT L. REV. 987, 987-989 (1997)
42. ('The 'will of the people,' as invoked in that effort, is artificially bounded in time, homogenized, shorn of ambiguities - in short, fabricated... . It slides over vexed questions ... of how the act of governing becomes a process in which the collective will is formed, rather than merely implemented.' Id. at 988.).
43. Bressman, supra note 19, at 493.
44. Michael A. Fitts, The Paradox of Power in the Modern State: Why a Unitary, Centralized Presidency May Not Exhibit Effective or Legitimate Leadership, 144 U. PA. L. REV. 827, 856-857 (1996)
45. ('[T]he president's exercise of power and articulation of public positions often undermine the confidence in and the informal power of his presidency.' Id. at 857.).
46. id. at 852 & n.73 (noting that, regardless of the control exercised by the President, 'there will and should be extensive delegation to, and exercise of authority by, the agencies' id. at 852).
47. Stewart, supra note 4, at 1712 (explaining the model's implicit assumption that there is 'no ascertainable, transcendent 'public interest,' but only the distinct interests of various individuals and groups in society' and its hypothesis that 'if agencies were to function as a forum for all interests affected by agency decisionmaking, bargaining leading to compromises generally acceptable to all might result, thus replicating the process of legislation' and attaining the same legitimacy).
48. Id. (footnote omitted). The critique Stewart references remains powerful thirty-five years later. See, e.g., Cuéllar, supra note 14, at 463 (finding that 'the existing process does next to nothing to remedy gaps in the commenter's own sophistication' and therefore her influence, or 'to involve members of the larger public in discussions about regulations that will shape their lives'); Yackee & Yackee, supra note 14, at 135 (finding agencies significantly more responsive to business interests than to other nongovernment groups and individuals in formal rulemaking). Barriers to judicial review such as standing further exacerbate agency bias toward regulated entities.
49. Mendelson, supra note 14, at 415-416 & n.106.
50. Seidenfeld, supra note 8, at 1514.
51. CASS R. SUNSTEIN, AFTER THE RIGHTS REVOLUTION (1990).
52. Seidenfeld, supra note 8, at 1539.
53. Id. at 1552.
54. Id. at 1515; see also Edley, supra note 10, at 589-91 (suggesting that civic republicanism's 'deliberative element, and the aspirational focus on the public purpose, ... can serve as the kernel for rethinking aspects of public law' id. at 591).
55. Edley, supra note 10, at 592.
56. Steven P. Croley, Theories of Regulation: Incorporating the Administrative Process, 98 COLUM. L. REV. 1, 82 (1998).
57. Dan M. Kahan, Democracy Schmemocracy, 20 CARDOZO L. REV. 795, 800 (1999).
58. See, e.g., Seidenfeld, supra note 8, at 1542 ('Administrative agencies ... fall between the extremes of the politically over-responsive Congress and the over-insulated courts. Agencies are therefore prime candidates to institute a civic republican model of policymaking.').
59. Though Dewey does not explicitly address modern regulatory governance, the insights he develops with regard to the democratic state in The Public and Its Problems apply equally well to the U.S. administrative state in its current form.
60. Indeed, despite his progressive leanings, Dewey was a vocal critic of the New Deal administrative state. Though his objections largely focused on the political economy of the New Deal.
61. Edward J. Bordeau, John Dewey's Ideas About the Great Depression, 32 J. HIST. IDEAS 67, 78-79 (1971).
62. They had separate roots in his democratic theory: 'Reiterating [his] critique of paternalistic benevolence ... Dewey suggested that the difficulties of [the] task [of moral democracy] were most clearly evident in the failure of many social reformers to meet its demands because they were committed to doing good for rather than with others'
63. Robert B. Westbrook, John Dewey and American Democracy 164 (1991).
64. DEWEY, supra note 12, at 12.
65. Id. at 12-13.
66. Id. at 15-16. There may be a multiplicity of 'publics' under this conception, each concerned with 'the indirect consequences of particular forms of associated activity.' WESTBROOK, supra note 39, at 305. 'The public' is thus a collective noun, used here to designate the collective and overlapping publics of the United States.
67. DEWEY, supra note 12, at 71.
68. See id. at 43 ('Whatever is a barrier to the spread of the consequences of associated behavior by that very fact operates to set up political boundaries.').
69. Id. at 74.
70. Id. at 72.
71. Id. at 33. Dewey defines the state in functional terms, as 'caring for and regulating the interests which accrue as the result of the complex indirect expansion and radiation of conjoint behavior.' Id. at 47. Accordingly, he allows for '[m]ultiplicity and constant transformation in the forms which the state assumes.' Id. at 44.
72. Id. at 33. 'An inchoate public is capable of organization only when indirect consequences are perceived, and when it is possible to project agencies which order their occurrence.' Id. At 131; see also WESTBROOK, supra note 39, at 306.
73. Heightening the need for agencies empowered to 'canalize the streams of social action and thereby regulate them' DEWEY, supra note 12, at 131, are the 'changing modes of associated behavior which often generate[] new, extensive, and enduring indirect consequences and hence new publics'
74. Westbrook, supra note 39, at 303.
75. DEWEY, supra note 12, at 177.
76. Id. at 178-79. "Inquiry, indeed, is a work which devolves upon experts." Id. at 208.
77. Westbrook, supra note 39, at 141.
78. DEWEY, supra note 12, at 206.
79. ('It is impossible for high-brows to secure a monopoly of such knowledge as must be used for the regulation of common affairs. In the degree in which they become a specialized class, they are shut off from knowledge of the needs which they are supposed to serve.').
80. Robert B. Reich, Public Administration and Public Deliberation: An Interpretive Essay, 94 YALE L.J. 1617, 1637 (1985)
81. ('The job of the public administrator is not merely to make decisions on the public's behalf, but to help the public deliberate over the decisions that need to be made.'). As Dewey further explains, '[t]he man who wears the shoe knows best that it pinches and where it pinches, even if the expert shoemaker is the best judge of how the trouble is to be remedied.' DEWEY, supra note 12, at 207. Moreover, '[o]nly the public [can] define its interests. For experts to define those interests for the public [is] not democratic elitism but elitism pure and simple.'
82. Westbrook, supra note 39, at 312.
83. DEWEY, supra note 12, at 176.
84. Id. at 175-176 (arguing that the pursuit of scientific knowledge should be animated by human interests).
85. Id. at 155.
86. See id. at 179-82 (discussing the intimate relationship between public consciousness and the dissemination of ideas through widely available media, particularly 'the news'); cf. Bordeau, supra note 39, at 69 ('Dewey consistently allied himself with every effort to educate the public about the economic and political realities of the times ... for only as so equipped could collective public intelligence become an operational force in self-determination.').
87. Furthermore, the success of agency experts 'may profoundly benefit from - and indeed depend on - institutional structures that let them learn how to galvanize public support for their bureaucratic policy innovations, or at least how to palliate potential public opposition.'
88. Cuéllar, supra note 14, at 495.
89. For civic republicans, the 'expert administrator' is merely a 'person whose superior knowledge facilitates deliberative democratic performance' and 'enables [her] ... to push past ... unreflective, personal preferences and find consensus' with other participants in the administrative process.
90. Note, Civic Republican Administrative Theory: Bureaucrats as Deliberative Democrats, 107 HARV. L. REV. 1401, 1406-1407 (1994).
91. In contrast to interest group representation theory, this criterion requires 'careful measures to ensure that the government serve[s] the public rather than particular private interests.'
92. Westbrook, supra note 39, at 302.
93. As the New Deal progressed, Dewey grew increasingly concerned with what amounted to the capture of public officials by private interests, embodied in the 'state capitalism' effectuated in the New Deal.
94. Bordeau, supra note 39, at 78.
95. DEWEY, supra note 12, at 69.
96. In this vein, the Deweyan conception shares more in common with the civic republican model, in which the President, along with Congress and the courts, 'play[s] a crucial' - but more limited - 'role ... by reviewing agency policy to ensure that the bureaucracy does not fail to fulfill its civic republican promise.'
97. Seidenfeld, supra note 8, at 1515.
98. DEWEY, supra note 12, at 208.
99. JOHN DEWEY & JAMES H. TUFTS, ETHICS 304 (1909).
100. Id. at 303-304.
101. '[T]he vice of the social leader, of the reformer, of the philanthropist and the specialist in every worthy cause of science, or art, or politics, is to seek ends which promote the social welfare in ways which fail to engage the active interest and coöperation of others.').
102. DEWEY, supra note 12, at 77.
103. Cf. supra note 17 and accompanying text.
104. DEWEY, supra note 12, at 126.
105. Dewey saw a tension in the technological age between the disintegration of the public into many publics and the homogenization of political culture through increased interconnectedness: We have inherited ... local town-meeting practices and ideas. But we live and act and have our being in a continental national state... . Our modern state-unity is due to the consequences of technology employed so as to facilitate the rapid and easy circulation of opinions and information, and so as to generate constant and intricate interaction far beyond the limits of face-to-face communities.
106. Id. at 113-114.
107. Id. at 146.
108. Westbrook, supra note 39, at 303.
109. Increasing globalization and securitization capture two such changing modes of associated behavior.
110. Fitts, supra note 26, at 852 & n.73.
111. Kagan, supra note 6, at 2250.
112. Though the focus here is on presidential elections, public choice theorists suggest that congressional elections are likely even less capable of legitimating the authority delegated to agencies.
113. DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY 9-12 (1993).
114. Explaining how broad delegations to agencies allow representatives to privately advocate on behalf of particular interests, while selectively taking credit for or disavowing particular agency decisions). The accountability functions of presidential and congressional elections may also undercut each other in the regulatory context: 'The idea of legislative accountability opposes open-ended delegations of authority to administrative agents, but the idea of presidential accountability derives its justification from the existence of such delegations and the need for an elected official to control their exercise.'
115. Rubin, supra note 5, at 2076.
116. Farina, supra note 25, at 998.
117. DEWEY, supra note 12, at 77.
118. Yackee Yackee, supra note 14, at 128 (quoting Asimow, supra note 14, at 129).
119. Freeman, supra note 5, at 9 n.19.
120. 'There appears to be consensus that the rule-making process is excessively costly, rigid, and cumbersome, and that it creates perverse incentives that conspire to undermine sound public policy.').
121. Cuéllar, supra note 14, at 414-415.
122. Finding that laypeople's comments tend to be less sophisticated than those of specialized interests and that sophistication of a comment correlates with its positive influence).
123. Yackee Yackee, supra note 14, at 129.
124. Presenting 'statistical evidence that business interests enjoy disproportionate influence over rulemaking outputs despite the supposedly equalizing effects of notice and comment procedures').
125. DEWEY, supra note 12, at 207.
126. 'A class of experts is inevitably so removed from common interests as to become a class with private interests and private knowledge, which in social matters is not knowledge at all.').
127. David J. Barron & Elena Kagan, Chevron's Nondelegation Doctrine, 2001 SUP. CT. REV. 201, 231-232.
128. Freeman, supra note 5, at 12.
129. Professor Jody Freeman's observation, though largely referencing regulated entities, extends to regulatory beneficiaries as well. Agencies encourage even less dialogue and deliberation among regulatory beneficiaries when they adopt less formal means of policymaking, such as guidance documents.
130. Mendelson, supra note 14, at 420-433.
131. Mendelson, supra note 14, at 420-433.
132. Cuéllar, supra note 14, at 490.
133. Supra pp. 589-590.
134. Freeman, supra note 5, at 12-13.
135. Highlighting that, 'because the agency must first actually propose a rule in order to invite comment, the definition of the regulatory problem can be frozen at the time of the [Notice of Proposed Rule Making], thus circumscribing at the outset' the relevant information that the public might provide).
136. DEWEY, supra note 12, at 208.
137. CASS R. SUNSTEIN, RISK AND REASON 28-52 (2002).
138. Discussing how individual and social thinking distort perceptions of risk, and arguing for limiting public involvement in regulatory decisionmaking on that basis).
139. Cuéllar, supra note 14, at 487.
140. Countering that the public is diverse, that sophistication in public comments 'is endogenous to how one gets involved in participation' and that regulation is not 'entirely about risk'). Dewey viewed the democratic realists of the early twentieth century, who 'denounced the irrationality and impracti cality of democratic government' and 'argued that the role of the public in decision making should be severely restricted and power placed in the hands of those few men who were rational and intelligent' as 'drain[ing] democracy of its essentials.'
141. Westbrook, supra note 39, at 285-286.
142. Cuéllar, supra note 14, at 470.
143. 'The public's perception of its stake in regulatory policy depends rather largely on the process through which people are queried.').
144. DEWEY, supra note 12, at 123-24, 134-35, 205-206.
145. "Political apathy ... ensues from inability to identify one's self with definite issues." Id. at 134-135).
146. Yochai Benkler, From Greenspan's Despair to Obama's Hope: The Scientific Basis of Cooperation as Principles of Regulation, in NEW PERSPECTIVES ON REGULATION 63, 78.
147. David Moss & John Cisternino eds., 2009) (explaining the possibility that, 'when a government agency takes over a particular social service, people cease to see providing it as a shared social responsibility').
148. DEWEY, supra note 14, at 467-468.
149. Insisting that agency analysis 'almost ineluctably turns on questions such as ... how to make judgment calls about the value of particular outcomes (not just their probability)').
150. Kagan, supra note 6, at 2269.
151. 'Most administrative action necessarily entails serious conflict about both the selection of values and the allocation of gains and losses.'). Moreover, public involvement with regard to the determination of regulatory ends would likely operate at a different level of generality than the consideration of means, perhaps one better suited to the collective reasoning capabilities of a diverse body of individuals.
152. Kagan, supra note 6, at 2253.
153. Sidney A. Shapiro, Political Oversight and the Deterioration of Regulatory Policy, 46 ADMIN. L. REV. 1, 4 (1994).
154. DEWEY, supra note 12, at 77.
155. Id. at 131.
156. Regulatory beneficiaries are the agency's most important constituency, yet perhaps the most often overlooked in the regulatory process.
157. Lisa Schultz Bressman & Michael P. Vandenbergh, Inside the Administrative State: A Critical Look at the Practice of Presidential Control, 105 MICH. L. REV. 47, 74-75 (2006).
158. Mendelson, supra note 14, at 429-430.
159. The President or members of Congress might contribute to the identification of the public subsequent to the passage of the agency's organic statute. The continued involvement of elected representatives in the definition of the agency's responsibilities might partially address the concerns associated with political accountability in the administrative state. Yet publicity of the agency's ultimate identification would also curb the ability of representatives to smuggle private interests into the domain of regulatory beneficiaries.
160. Schoenbrod, supra note 68, at 9-12.
161. DEWEY, supra note 12, at 167.
162. "There can be no public without full publicity in respect to all consequences which concern it.").
163. Such an articulation might also provide grounds for standing.
164. Exec. Order No. 12,866, 3 C.F.R. 638 (1993).
165. Reprinted as amended in 5 U.S.C. § 601 app. at 83-87 (2006).
166. Supra p. 590.
167. Mendelson, supra note 14, at 433.
168. 'Because of [an] inability to have their views heard in the decision-making process, regulatory beneficiaries may perceive a particular policy decision as illegitimate.'). Agency engagement with regulatory beneficiaries at this stage would also help to offset the disproportionate influence exercised by regulated entities in the rulemaking process.
169. DEWEY, supra note 12, at 172-173.
170. Thus, officials must inform the public of the reasons for their actions in a way sufficient for the public to judge them adequately.
171. Id. at 208-209.
172. Fitts, supra note 26, at 850-851 (discussing the connection between a President's visibility and accountability).
173. Kahan, supra note 36, at 804-805.
174. Advocating a 'bottom up' approach to agency design, asking 'not which conception of democracy and corresponding position on delegation are 'best' in the abstract, but which make the most sense in a particular regulatory setting, given the values and interests at stake there'
175. Id. at 804.
176. Farina, supra note 24, at 180.
177. Kahan, supra note 6, at 2248-2250.
178. Kahan, supra note 6, at 2246.
179. Claiming that the President has 'asserted at least a comparative primacy in setting the direction and influencing the outcome of administrative process').
180. Exec. Order No. 12,866, 3 C.F.R. 638 (1993).
181. Reprinted as amended in 5 U.S.C. § 601 app. At 83-87 (2006).
182. Issued in its first incarnation by President Carter and adopted, with various revisions, by every subsequent administration, what became Executive Order 12,866 under President Clinton created a channel for centralized direction and review of diverse rulemaking activities. 99 Earlier this year, President Obama released an executive order, Improving Regulation and Regulatory Review, Exec. Order No. 13,563, 76 Fed. Reg. 3821 (Jan. 18, 2011), which largely reaffirmed Executive Order 12,866 and further endorsed public access to the rulemaking process. Section 2, titled 'Public Participation' directs agencies to solicit input from regulatory beneficiaries as well as regulated entities prior to issuing a notice of proposed rulemaking and to provide opportunities for public comment thereafter.
183. Id. § 2(b)-(c), 76 Fed. Reg. at 3821-3822.
184. This Note's proposed amendments would expand the scope of public engagement beyond that envisioned in President Obama's executive order.
185. Dodd-Frank Wall Street Reform and Consumer Protection Act §§ 1011-1013, 1017, 12 U.S.C. §§ 5491-5493, 5497 (Supp. 2010).
186. DEWEY, supra note 12, at 27.
187. 'The characteristic of the public as a state springs from the fact that all modes of associated behavior may have extensive and enduring consequences which involve others beyond those directly engaged in them. When these consequences are in turn realized ... , recognition of them reacts to remake the conditions out of which they arose.').
188. Helene Cooper, Obama Signs Overhaul of Financial System, N.Y. TIMES, July 22, 2010, at B3.
189. Characterizing the legislation as a 'response to the 2008 financial crisis that tipped the nation into the worst recession since the Great Depression').
190. Creating the Consumer Bureau, CONSUMER FIN. PROT. BUREAU, http://www.consumerfinance.gov/the-bureau/creatingthebureau (last visited Oct. 29, 2011).
191. Pub. L. No. 111-203, 124 Stat. 1376 (2010) (codified in scattered sections of the U.S. Code).
192. DEWEY, supra note 12, at 27 (discussing the realization of indirect consequences).
193. 155 CONG. REC. H14,804 (daily ed. Dec. 11, 2009).
194. 12 U.S.C. § 5491 (Supp. 2010).
195. DEWEY, supra note 12, at 131.
196. 12 U.S.C. § 5493(b).
197. Cooper, supra note 102.
198. Including a quotation from President Obama suggesting that the Dodd-Frank Act extends protections to anyone who has 'ever applied for a credit card, a student loan or a mortgage').
199. The Dodd-Frank Act not only created an independent director, removable for cause, see 12 U.S.C. § 5491(c), but also created an independent revenue stream for the CFPB, see 12 U.S.C. § 5497(a)(1)-(3). Republicans have continued to demand that the agency be restructured to remove these features.
200. Edward Wyatt & Ben Protess, Foes Revise Plan to Curb New Agency, N.Y. TIMES, May 6, 2011, at B1.
201. Describing Republican demands that the agency be restructured before it considers appointing a director). 'This is about accountability' claimed Senator Richard Shelby of Alabama.
202. Id.
203. Ilya Somin, Political Ignorance and the Case Against Paternalistic Regulation, THE VOLOKH CONSPIRACY (Sept. 19, 2009, 7:50 PM), http://volokh.com/archives/archive_2009_09_13-2009_09_19.shtml#1253404230.
204. Arguing that, because of the complexity of financial protection regulations, 'it will be easy for interest groups and government officials to enact regulations that benefit politically influential businesses [at] the expense of the public under the guise of consumer protection'). This vulnerability raises concerns about the CFPB's potential adoption of an interest group representation mode of decisionmaking.
205. CONSUMER FIN. PROT. BUREAU, BUILDING THE CFPB 8 (2011).
206. 'Even those who avoided the temptations of excessively risky credit were caught in its web... . The costs of irresponsible lending were borne by tens of millions of American families.').
207. 12 U.S.C. § 5511(a).
208. CONSUMER FIN. PROT. BUREAU, http://www.consumerfinance.gov/openforsuggestions (last visited Oct. 29, 2011).
209. CFPB employees read and listened to every submission of the hundreds they received and then recorded videos explaining agency positions or actions the CFPB might take in response.
210. Id.
211. Id.
212. In a follow-up video, Warren emphasized that '[p]eople are interested in the work we're going to do ... and they are willing to invest some time to speak up and tell us about it.'
213. Id.
214. Acting in this spirit in a narrower context, the CFPB has begun to implement a 'consumer response function' designed to 'facilitate the collection and monitoring of and response to consumer complaints regarding certain financial products and services' which 'will help the CFPB identify areas of concern and help CFPB in its supervision and other responsibilities.'
215. CONSUMER FIN. PROT. BUREAU, supra note 111, at 18.
216. Benkler, supra note 82, at 80.
217. '[G]overnment must provide the means, both online and offline, for effective, widespread participation by citizens in the regulatory process, from its inception to its conclusion and subsequent oversight.').
218. CONSUMER FIN. PROT. BUREAU, supra note 111, at 18.
219. 'To ensure broad access, the CFPB will provide a variety of contact channels, including the Internet, mail, fax, and a toll-free telephone number with English and Spanish language capabilities.').
220. Id. at 16-17.
221. Noting, for example, Warren's visit to a Miami foreclosure court, meeting with victims of predatory lending in San Antonio and San Francisco, and hosting of a roundtable in Columbus, Ohio).
222. Id. at 19-20.
223. Describing the division's financial education objectives and the development of 'targeted outreach to groups that face particular challenges'
224. Id. at 19.
225. In contrast, the 'External Affairs' division appears focused on maintaining 'robust dialogue' with 'various stakeholders' such as community banks and credit unions, see id. at 21-22, as would be expected under an interest group representation model.
226. The CFPB website, designed in a highly accessible format, is one such channel. Again, however, the agency cannot rely exclusively on the website in carrying out its duty to communicate with the public regarding its decisions. But it might also employ its regulatory authority over market actors to facilitate the education of their consumers.
227. Though the Surgeon General's warning on cigarette packages provides consumers with immediate information, an equivalent notice appended to consumer contracts might instead direct financial products consumers elsewhere to information regarding recent regulatory changes pertinent to their present or future exchanges.
228. CONSUMER FIN. PROT. BUREAU, supra note 111, at 10-11.
229. Id. at 11.
230. Supra pp. 588-590.
231. CONSUMER FIN. PROT. BUREAU, supra note 111, at 14.
232. DEWEY, supra note 12, at 209.
233. Id. at 144.