Bureaucratic drift

History

Mathew McCubbins, Roger Noll, and Barry Weingast first defined the theory of bureaucratic drift in 1987.[1] They argued that drift is essentially a principal-agent problem that explores "how—or indeed, whether—elected political officials can reasonably effectively assure that their policy intentions will be carried out."[1] The major tenets of the theory include how bureaucrats can manipulate policy when creating bureaucratic agencies and the argument that delay built into the bureaucracy is a good thing, because delay gives government a chance to perfect a policy over time.[1]

In 1989, Murray Horn and Kenneth Shepsle proposed that coalitional drift, the phenomenon of present legislation being overwritten by the changing views of political coalitions, is a trade-off to bureaucratic drift.[2] The relationship between bureaucratic and coalitional drift is a disputed part of the bureaucratic drift theory.[3][2][4]

In 1992, Jonathan Macey hypothesized that the creation of an agency's structure and design is instrumental in preventing bureaucratic drift.[3] Macey speculates that both current interest groups and Congress benefit from the careful structure and design of a bureaucratic agency. The former is pleased by policies that continue to reflect their preferences while the latter is pleased that both bureaucratic and coalitional drift are protected against.[3] Contrary to Horn and Shepsle, Macey argues that coalitional drift and bureaucratic drift aren't necessarily opposing forces, but that the careful construction of an agency's structure and design can mitigate the costs of both types of drift.[3] He also disagrees with McCubbins, Noll and Weingast on the power of delay to reduce bureaucratic drift, because extra time gives future interest groups and a future Congress the opportunity to insert their own preferences into the proposed policy.[3] This is an example of coalitional and bureaucratic drift working counter to each other.

Causes

Scholars have identified three major areas that contribute to bureaucratic drift: how bureaucracies are structured, interest groups that lobby bureaucracies, and presidential appointments of bureaucratic leaders.

Structural

Bureaucratic agencies are often structured so that legislators and their staffers have the opportunity to easily monitor bureaucratic activity.[4] While some scholars believe that structural organization can help lessen bureaucratic drift,[5] other scholars have found that this approach can backfire.[4] When a bureaucracy is permeable anyone can access it, including legislators who were originally adverse to the legislation being implemented.[4] Further, scholars argue that if a bureaucratic agency is designed to represent a single interest, its implementations are more likely to reflect the views of the people they are representing than they are the views of the legislature.[5]

Lobbying

Making bureaucracies easily accessible means that interest groups can have a greater influence on the outcome of policy implementation.[5] Some scholars believe that bureaucracies can have positive interactions with interest groups.[6] An example of such an interaction is when interest groups support bureaucracies by providing information and facts about areas the bureaucracy is meant to promote or serve.[6][7] Other scholars, however, have found that interest groups can cause bureaucratic drift. When a bureaucratic agency is infiltrated or corrupted by an external group whose views do not align with the preferences of the legislature it is said that the bureaucratic agency is captured.[8][9] If an interest group negotiates with a bureaucracy, it can bias the bureaucracy to implement policy that drifts from the original intention of the legislation so the policy instead better serves the needs of the interest group.[10]

Presidential appointments

Scholars consider presidents active in the affairs of "independent" bureaucracies.[11] Presidential nominations are sometimes considered a check on bureaucracies because it ensures reliable agent performance.[12] However, presidents can use appointments for political gain.[13] A president may wish to maintain bureaucratic drift if it lies in his or her favor.[13] An administrative agency can be captured by a president when he or she appoints a bureaucratic head that reaffirms bureaucratic drift that is favorable to the president's policies.[14][13] In cases where bureaucratic drift is present, scholars believe that the president can change policy more rapidly than in a zero-drift scenario.[14]

Checks

Legislative checks

Through congressional acts, the legislative branch has the power to curb bureaucratic drift.[15][16] Such regulation can take the form of statutory control or congressional oversight.[16][17] Through statutory control, Congress aims to limit bureaucratic drift before it occurs by exerting influence over the organization of a bureaucracy.[17][18][19][20] Congress exerts statutory control by specifying the bureaucracy's agenda, structure, time and fiscal constraints, and procedures while leaving little discretion to the bureaucracies.[18][19][20] Oversight, on the other hand, occurs when Congress monitors the actions of bureaucracies and is used to check bureaucratic drift after agencies have acted on policies.[17][21]

Mathew McCubbins and Thomas Schwartz have categorized oversight into two types- police patrol and fire alarm patrol.[15][21][22] Police patrol refers to oversight when legislators instigate investigations into bureaucracies and actively search for bureaucratic drift.[1][15][22] Such oversight may involve legislators monitoring agencies, reading reports, conducting field studies, and questioning officials.[1] Unlike police patrol, Congress also uses fire-alarm patrol by constructing procedures that allow citizens and interest groups to alert legislators of drift.[15][22] This method involves less action by congress, and McCubbins and Schwartz argue that it is preferred by legislators as it allows them to devote less time and resources to oversight.[15][21][23][24] However, other scholars criticize fire-alarm patrol by arguing that citizens' complaints may never reach legislators and those that do may be deceitful, thus sounding "false alarms".[22][23]

Judicial checks

Because of the Administrative Procedure Act, the judicial branch is able to check bureaucratic drift through judicial review.[3][25][26][27][28] Scholars have argued that the judicial branch checks bureaucratic drift most efficiently when controlling delays of implementing law. Timing is important because the process gives less organized groups time to learn about proposed actions and respond to these proposals.[3][26][27] The same scholars point out that ongoing delays caused by judicial review on agency actions may discourage less organized interest, because such groups lack the resources necessary to maintain an effective coalition over long periods of time.[3][27] Other scholars argue that judicial review also allows less organized groups to hire lawyers to assist in monitoring agency actions.[3][2]

Executive checks

The president has the power to check bureaucratic drift through executive orders and by choosing appointees for the highest post of bureaucracies.[1][14][27][29] A president can attempt to affect drift by choosing appointees whose preferences closely resemble his or her own.[1][14][27] Also cabinet officials have their own independent evaluation staffs in charge of ensuring that agencies do not drift from government decisions.[1][29][30] Monitoring bureaucratic agencies is also possible through the Office of Management and Budget as well as the White House staff.[1][25][30][31] Since Congress controls the amount of money appropriated to bureaucratic agencies, monitoring by the Office of Management and Budget is limited.[14][25][27] The Office of Information and Regulatory Affairs, a division of the Office of Management and Budget, can delay agency regulations it deems unsatisfactory.[25][31] Scholars argue that one problem of the executive branch working to reduce bureaucratic drift is that it wastes time and resources that could be spent serving constituents.[1][14] Also other scholars point out that future coalitions may tamper with carefully negotiated bargains. Therefore executives often focus more on work they can immediately benefit from.[2][32]

Implications

While some scholars believe that delegation is a necessary part of the American government,[33] and that bureaucratic drift is a risk that must be weighed when delegating implementation powers, others believe that delegation of power to bureaucracy is both unconstitutional and happens too frequently.[34][35][36][37] These scholars subscribe to the Non-delegation Doctrine, and believe that the risk posed by bureaucratic drift is disruptive enough to American politics that delegation must be reconsidered or even eliminated.[38][39]

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References
  1. McCubbins, Mathew; Roger Noll (1987). "Administrative Procedures as Instruments of Political Control". Journal of Law, Economics, and Organization. 3 (2): 243–277. JSTOR 764829.
  2. Horn, Murray; Kenneth Shepsle (March 1989). "Commentary on 'Administrative Arrangements and the Political Control of Agencies': Administrative Process and Organizational Form as Legislative Responses to Agency Costs". Virginia Law Review. 2. 75 (2): 499–508. doi:10.2307/1073181. JSTOR 1073181.
  3. Macey, Jonathan (March 1992). "Organizational Design and Political Control of Administrative Agencies". Journal of Law, Economics, & Organization. 8 (1): 93–110.
  4. Shepsle, Kenneth (March 1992). "Bureaucratic Drift, Coalitional Drift, and Time Consistency: A Comment on Macey". Journal of Law, Economics, & Organization. 8 (1): 111–118. JSTOR 764892.
  5. Macey, Jonathan (March 1992). "Organizational Design and Political Control of Administrative Agencies". Journal of Law, Economics, & Organization. 8 (1): 93–110. JSTOR 764891.
  6. Chubb, John (1983). Interest groups and the bureaucracy: the politics of energy. Sanford, California: Stanford University Press.
  7. Wright, John (October 2001). "Interest Groups, Advisory Committees, and Congressional Control of the Bureaucracy". American Journal of Political Science. 45 (4): 799–812. doi:10.2307/2669325. JSTOR 2669325.
  8. Shapiro, Stuart (2006). "Procedural Control of the Bureaucracy, Peer Review and Epistemic Drift". Journal of Public Administration Research and Theory. 17 (4): 535–538. doi:10.1093/jopart/mul026.
  9. Schoenbrod, David (1993). Power Without Responsibility. Yale University.
  10. Bertelli, Anthony. "Remedial Bargaining and Bureaucratic Drift". Journal of Theoretical Politics: 159.
  11. Stewart, Joseph; Jane S. Cromartie (1982). "Partisan Presidential Change and Regulatory Policy: The Case of the FTC and Deceptive Practices Enforcement". Presidential Studies Quarterly. 12 (4): 568–573. JSTOR 27547869.
  12. Lowi, Theodore (2002). American Government: Power and Purpose. New York: Norton.
  13. Nokken, Timothy (2000). "Confirmation Dynamics: A Model of Presidential Appointments to Independent Agencies". Journal of Theoretical Politics. 12 (1): 91–112. doi:10.1177/0951692800012001004.
  14. Balla, Steven (1998). "Administrative Procedures and Political Control of the Bureaucracy". American Political Science Review. 92 (3): 663–673. doi:10.2307/2585488. JSTOR 2585488.
  15. Lowi, Theodore J.; Benjamin Ginsberg; Kenneth A. Shepsle & Stephen Ansolabehere (2002). American Government: Power and Purpose the Brief Twelfth Edition. New York: Norton. pp. 219–36.
  16. Hamm, Keith E.; Robertson, Roby D. (1981). "Factors Influencing the Adoption of New Methods of Legislative Oversight in the U. S. States". Legislative Studies Quarterly. 6 (1): 133–50. doi:10.2307/439717. JSTOR 439717.
  17. Bawn, Kathleen (1997). "Choosing Strategies to Control the Bureaucracy: Statutory Constraints, Oversight, and the Committee System". Journal of Law, Economics, & Organization. 13 (1): 101–26. doi:10.1093/oxfordjournals.jleo.a023375. JSTOR 765129.
  18. Huxtable, Phillip A (1994). "Incorporating the Rules Committee: An Extension of the Ferejohn/Shipan Model". Journal of Law, Economics, & Organization. 10 (1): 160–67. doi:10.1093/jleo/10.1.160. JSTOR 764818.
  19. Hammond, Thomas H.; Knott, Jack H. (1996). "Who Controls the Bureaucracy?: Presidential Power, Congressional Dominance, Legal Constraints, and Bureaucratic Autonomy in a Model of Multi-Institutional Policy-Making". Journal of Law, Economics, & Organization. 12 (1): 119–47. doi:10.1093/oxfordjournals.jleo.a023355. JSTOR 765041.
  20. Huber, John D.; Shipan, Charles R.; Pfahler, Madelaine (2001). "Legislatures and Statutory Control of Bureaucracy". American Journal of Political Science. 45 (2): 330–45. doi:10.2307/2669344. JSTOR 2669344.
  21. McCubbins, Mathew D.; Schwartz, Thomas (1984). "Congressional Oversight Overlooked: Police Patrols versus Fire Alarms". American Journal of Political Science. 28 (1): 165–79. doi:10.2307/2110792. JSTOR 2110792.
  22. Lupia, Arthur; McCubbins, Mathew D. (1994). "Learning from Oversight: Fire Alarms and Police Patrols Reconstructed". Journal of Law, Economics, & Organization. 10 (1): 96–117. doi:10.1093/jleo/10.1.96. JSTOR 764815.
  23. Hopenhayn, Hugo; Lohmann, Susanne (1996). "Fire-Alarm Signals and the Political Oversight of Regulatory Agencies". Journal of Law, Economics, & Organization. 12 (1): 196–212. doi:10.1093/oxfordjournals.jleo.a023357. JSTOR 765043.
  24. Ogul, Morris S.; Rockman, Bert A. (1990). "Overseeing Oversight: New Departures and Old Problems". Legislative Studies Quarterly. 15 (1): 5–24. doi:10.2307/439999. JSTOR 439999.
  25. Mesquita, De; Bueno, Ethan; Stephenson, Matthew C. (2007). "Regulatory Quality Under Imperfect Oversight". American Political Science Review. 101 (3): 605. CiteSeerX 10.1.1.194.2798. doi:10.1017/s0003055407070359.
  26. Epstein, David; O'Halloran, Sharyn (1994). "Administrative Procedures, Information, and Agency Discretion". American Journal of Political Science. 38 (3): 697–722. doi:10.2307/2111603. JSTOR 2111603.
  27. Macey, Jonathon R. "Separated Powers and Positive Political Theory: The tug of war over Administrative Agencies" Yale Law School Scholarship 1/1/1992
  28. Stephenson, Matthew C (2007). "Bureaucratic Decision Costs and Endogenous Agency Expertise". Journal of Law, Economics, and Organization. 23 (2): 469–498. doi:10.1093/jleo/ewm030.
  29. Wood, B. Dan; Bohte, John (2004). "Political Transaction Costs and the Politics of Administrative Design". The Journal of Politics. 66 (1): 176–202. doi:10.1046/j.1468-2508.2004.00147.x. JSTOR 3449778.
  30. Lowi, Theodore J.; Benjamin Ginsberg; Kenneth A. Shepsle (2002). American Government: Power and Purpose. New York: Norton.
  31. Seidenfeld, Mark (2001). "The Psychology of Accountability and Political Review of Agency Rules". Duke Law Journal. 51 (3): 1059–1095. doi:10.2307/1373184. JSTOR 1373184.
  32. Shipan, Charles R. (1997). Designing Judicial Review: Interest Groups, Congress, and Communications Policy. Ann Arbor: University of Michigan.
  33. Hamilton, Marci A (1995). "Power, Responsibility, and Republican Democracy". Michigan Law Review. 93 (6): 1539–1558. doi:10.2307/1289892. JSTOR 1289892.
  34. Allen, Marc; Meier, Kenneth J. (1990). "Presidential Control versus Bureaucratic Power: Explaining the Reagan Revolution in Antitrust". American Journal of Political Science. 34 (1): 269–87. doi:10.2307/2111519. JSTOR 2111519.
  35. Schoenbrod, David (2003). "Politics and the Principle That Elected Legislators Should Make the Laws". Harvard Journal of Law & Public Policy. 26 (1): 239.
  36. Schoenbrod, David (6 December 1995). "Rule of law: It's time Congress took back its power to make laws". Wall Street Journal (Eastern ed.). p. A21.
  37. Does Congress Delegate Too Much Power To Agencies And What Should Be Done About It? US House of Representatives, 2000. ISBN 0160659973.
  38. Bergin, Amee (2001). "Does Application Of The APA'S 'Committed To Agency Discretion' Exception Violate The Nondelegation Doctrine?". Boston College Environmental Affairs Law Review. 28 (2–3): 363–398.
  39. Schoenbrod, David (2008). Power Without Responsibility: How Congress Abuses the People Through Delegation. Yale University Press.

Further reading
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