Bureaucratic Power, by Jennifer Nou

by Jennifer Nou — Tuesday, Aug. 6, 2019@Jennifer_Nou

The administrative state exercises power — too much power in the view of many. But what kind of power and in what forms? Rachel Potter’s new book, Bending the Rules, provides an occasion to reflect on these questions. The portrait she presents is that of strategic bureaucrats. These bureaucrats, civil servants and appointees alike, know a lot about how to make rules. They can leverage this procedural knowledge to “insulate” policies otherwise under threat — from interest groups, the President, Congress, and the courts. In doing so, bureaucrats can (and do) achieve their preferred outcomes. Potter refers to this phenomenon as procedural politicking.

In Potter’s account, agencies can get what they want — with few the wiser. For example, Potter argues that agencies strategically draft rules and analyses to obfuscate or frame their content in favorable ways. They can also consult the public in forms that benefit them. Finally, they can publish and implement final rules in amenable political environments. Potter then marshals sophisticated data, which turn out to largely support her thesis. Over various measures, she convincingly shows that agencies strategically protect their policies from anticipated opposition. In this manner, bureaucrats exercise a kind of invisible power, the ability to achieve a favored outcome without observable clashes.

This conception of power manifests what Peter Bachrach and Morton Baratz famously call the “second face” of power. As Potter observes (p. 82), such power “operates through anticipation and does not require visible compulsion.” In other words, it operates through conflict-avoidance. Those who wield it can set the agenda — choose what issues are and are not up for grabs. No longer can we simply think of power’s first “face”: the observable extent to which A can get B to do something B would not otherwise do. (Say, when the Office of Information and Regulatory Affairs vetoes a regulation.) Rather, we must be attentive to the ways in which A can use procedure to limit public debate. In this view, institutional structure matters.

But do Potter’s data genuinely reflect an exercise of power, which arguably requires the relatively powerless to have their preferences thwarted? Indeed, we must have some way of knowing whether A has gotten B to do something B would not otherwise do. In Bachrach and Baratz’s words: If “there appears to be universal acquiescence in the status quo,” then it will not be possible to “determine empirically whether the consensus is genuine or instead has been enforced through nondecision-making.” Put differently, we must be able to observe the subjective preferences of those subject to bureaucratic power to know whether they unknowingly acquiesced or would have otherwise embraced the agency’s choice.

On this dimension, Potter measures agency and overseer preferences through a number of fixed measures: for example, Clinton-Lewis estimates of agency ideology (based on expert surveys), size-unity scores of Congress, and agency case volume at the D.C. Circuit. Some of these measures are sensible for attempting to predict when agencies would anticipate pushback. But others, such as case volume, cannot tell us much about actual preferences over particular policy outcomes. More broadly, the potential exercise of power, in Potter’s analysis, is only measured by agency behavior: how agencies acted in anticipation of (hypothetical) opposition. They tell us little, however, about whether the opposition was genuine or resulted in thwarted preferences. Such results arguably tell us little about whether power has been exercised at all.

Relatedly, note that this conception of power also leaves out what Steven Luke’s refers to as power’s “third” dimension: the ability of agencies to shape preferences in the first place. For Lukes, power was not only about the existence of “grievances,” of thwarted preferences. Rather, he asks, “is it not the supreme and most insidious exercise of power to prevent people, to whatever degree, from having grievances, by shaping their perceptions, cognitions and preferences in such a way that they accept their role in the existing order of things?” In other words, power can also be exercised by influencing the public’s subjective preferences themselves. In doing so, the interest groups and political monitors have little reason to protest at all when an agency accomplishes its desired end.

On this front, it is worth observing the extent to which agencies have used new tools like social media to build support for their proposals. As Kathryn Watts and Elizabeth Porter have documented, agencies “are now deploying politically tinged visuals to push their agendas at every stage of high-stakes, often virulently controversial, rulemakings.” For example, EPA’s rollout of the Clean Power Plan included a video from President Obama to explain how the rule would combat climate change. To do so, it used dramatic music, visuals and catchy one-liners. To be sure, agencies are legally required to provide a public justification for their rules under the Administrative Procedure Act. In this sense, they must attempt to persuade the public of a rule’s wisdom. What is striking about how agencies now communicate is how much they resemble marketing campaigns more than legal briefs: attempts to manipulate through visual and sound, rather than austere argumentation.

All in all, Bending the Rules is an important look at how agencies can exercise power. One normative upshot is that administrative procedure may not foster political participation so much as submerge it. Those who “fetishize” procedures under the banner of democracy may in fact be reinforcing rule by a kind of bureaucratic elite. To mitigate this possibility, perhaps procedural requirements should be regularly sunsetted, and replaced with substitutes. Perhaps they should even be randomized. Regardless, Potter’s work is a keen reminder of the ways in which power can operate and by whom it is exercised — as well as the need for fresh thinking on how bureaucratic power should be properly checked.

 

This post is part of a symposium reviewing Bending the Rules: Procedural Politicking in the Bureaucracy, a new book by Dr. Rachel A. Potter, Assistant Professor of Politics at the University of Virginia. All of the posts can be read here.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

About Jennifer Nou

Jennifer Nou is Neubauer Family Assistant Professor at the University of Chicago Law School. Her research and teaching interests are primarily in administrative law, legislation, and the separation-of-powers. Prior to joining the faculty, she was a Public Law Fellow at the Law School and also worked as a policy analyst and special assistant at the Office of Information and Regulatory Affairs. Jennifer is a graduate of Yale College and Yale Law School, and received an M. Phil in Politics from Oxford University as a Marshall Scholar. After law school, she was a law clerk to Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit and then to Justice Stephen Breyer of the U.S. Supreme Court.

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