Does Agency Structure Affect Agency Decisionmaking? Implications of the CFPB’s Design for Administrative Governance

An extensive literature has analyzed the accountability of administrative agencies, and in particular, their relationship to Congress. A well-established strand in the literature emphasizes that Congress retains control over agencies by their design, with a focus on the structure and process by which agency decisionmaking is undertaken. This Article examines the relationship between agency structure and decisionmaking across four agencies with similar statutory missions but different organizational structures: the Consumer Financial Protection Bureau (CFPB), with a uniquely independent and controversial structure, and the Commodity Futures Trading Commission (CFTC), Consumer Product Safety Commission (CPSC), and Securities and Exchange Commission (SEC), with more conventional independent commission structures. It presents data consistent with the contention that agency structure influences agency decisionmaking. More specifically, the statistical analysis is robustly consistent with an agency’s insulation from Congress being related to its choice of regulatory instrument, as the most independent agency in this study, the CFPB, uses significantly less frequently the most publicly accountable regulatory instrument: notice-and-comment rulemaking. The Article concludes with the analysis’s implications for the CFPB’s organization and more broadly for administrative reform proposals and the agency design and administrative law literature.