Optimal political control of the bureaucracy.

• Author: Stephenson, Matthew C.

It is widely believed that insulating an administrative agency from the influence of elected officials, whatever its other benefits or justifications, reduces the agency's responsiveness to the preferences of political majorities. This Article argues, to the contrary, that a moderate degree of bureaucratic insulation from political control alleviates rather than exacerbates the countermajoritarian problems inherent in bureaucratic policymaking. An elected politician, though responsive to majoritarian preferences, will almost always deviate from the majority in one direction or the other. Therefore, even if the average policy position of a given elected official tends to track the policy views of the median voter in the electorate, the average divergence between the preferences of that official and the median voter in the electorate is generally greater than zero. Forcing the politically responsive official to share power with a partially insulated bureaucracy can reduce the variance in policy outcomes, because bureaucratic insulation creates a kind of compensatory inertia that mutes the significance of variation in the elected official's policy preferences. Up to a point, the median voter's benefit from this reduction in outcome variance outweighs the costs associated with biasing the expected outcome away from the median voter's ideal policy.

TABLE OF CONTENTS INTRODUCTION I. THE CONVENTIONAL WISDOM II. ANALYSIS A. Assumptions 1. The Normative Standard 2. The Positive Framework B. The Baseline Analysis 1. Optimal Bureaucratic Insulation at the Policymaking Stage 2. Optimal Bureaucratic Insulation at the Institutional Design Stage C. Extensions 1. Voter Internalization of Presidential Control Costs 2. Voter Monitoring and Lobbying of the President. 3. Strategic Voter Selection of a Biased President 4. Extended Policy Time Horizon CONCLUSION APPENDIX A. Players and Order of Play B. Equilibrium Strategies 1. Equilibrium Strategy of the Bureaucracy and the President 2. Optimal Bureaucratic Insulation in the Policymaking Stage 3. Optimal Bureaucratic Insulation in the Institutional Design Stage C. Extensions 1. Social Costs of Bureaucratic Control Efforts 2. Alternate Methods of Accountability 3. Strategic Voter Selection of Biased Presidents 4. Longer Time Horizons INTRODUCTION

The degree to which elected politicians ought to influence bureaucratic policymaking is one of the most important and contested questions in public law. A prominent school of thought--endorsed by influential scholars, practitioners, and public servants--maintains that increasing political influence over the bureaucracy enhances the majoritarian legitimacy of the administrative state, while insulation of the bureaucracy from political control (whatever its other benefits or justifications) is necessarily "countermajoritarian" and therefore problematic. This conclusion is supported by a simple, powerful, and intuitive argument: most bureaucratic policy choices involve fundamentally political value trade-offs, and in a democracy there is a strong presumption that such choices should reflect the interests of electoral majorities. Elected politicians--for example, the president--tend to respond to majoritarian interests; appointed bureaucrats are much less responsive. It therefore seems self-evident that giving politicians greater influence over agencies, all else equal, will always increase the degree to which agency decisions reflect majoritarian preferences.

This Article argues that this seemingly obvious conclusion is false: a moderate degree of bureaucratic insulation alleviates rather than exacerbates the countermajoritarian problems inherent in bureaucratic policymaking. Even if elected politicians are more responsive to voters than are agencies, and even if agencies do not have any special expertise or other advantages, a majority of the electorate is still better off with some degree of bureaucratic insulation from political control. The reason has to do with the fact that an elected politician, though responsive to majoritarian preferences, will almost always deviate from the majority in one direction or the other. Republican presidents, for example, are almost always more conservative than a majority of the electorate, while Democratic presidents are typically more liberal. So even if the average policy position of presidential administrations tends to track the policy views of the median voter in the electorate, the average divergence between the preferences of the median voter and the president is generally greater than zero. Forcing the politically responsive president to share power with a partially insulated, politically unresponsive bureaucracy tends to reduce the variance in policy outcomes, because bureaucratic insulation creates a kind of compensatory inertia that mutes the significance of variation in the president's policy preferences. Up to a point, the benefit to a majority of voters from a reduction in outcome variance outweighs the cost associated with biasing the expected outcome away from the median voter's ideal outcome. A majority of voters therefore prefers a moderate level of bureaucratic insulation from political control.

This result contrasts sharply with the received wisdom that majoritarian values are best served by maximizing the degree to which politically responsive elected officials can control unaccountable bureaucrats. It is important to stress, though, that the optimal level of bureaucratic insulation has the expected relationship with other political and institutional variables. The more responsive an elected politician is to majoritarian preferences, the lower the majority's optimal level of bureaucratic insulation. Likewise, the greater the bureaucracy's expected policy bias, the lower the optimal level of bureaucratic insulation. And the more voter preferences tend to shift over time--or, equivalently, the more serving a majority's interests may require sudden and dramatic policy changes--the lower the optimal level of bureaucratic insulation. These comparative results, however, do not alter the fact that, except in special cases, the optimal level of bureaucratic insulation will be positive.

This Article develops the central argument and several extensions using a positive political theory ("PPT") framework. Part I surveys existing scholarship. With very few exceptions, the conventional wisdom is that if one presumes that (1) politicians are responsive to majoritarian preferences, (2) bureaucrats are not, (3) bureaucrats do not have special expertise or other advantages that would be undermined by greater political control, and (4) responsiveness to majoritarian preferences is the only relevant normative criterion, then elected politicians should have maximum influence over bureaucratic policymaking, except in special circumstances. Part II, the heart of the Article, assesses this conventional wisdom using a stylized PPT framework. Section II.A lays out the normative and positive assumptions that structure this analysis. Section II.B derives the optimal degree of bureaucratic insulation under these assumptions. This analysis establishes the main result: except in special cases, majoritarian values are best served by a degree of bureaucratic insulation from political control. Because this baseline analysis incorporates a number of strong simplifying assumptions, Section II.C considers several extensions. These variants generate additional insights, but they do not substantially undermine the central claim that political majorities often prefer to limit the influence of accountable politicians over unaccountable bureaucrats. A technical appendix presents the formal model on which the analysis and conclusions in the body of the Article are based.

1. THE CONVENTIONAL WISDOM

   Many distinguished scholars and practitioners believe that it is illegitimate and undesirable for bureaucrats to pursue policy goals that diverge from those of the nation's elected representatives. Over thirty years ago, Lloyd Cutler and David Johnson concisely summarized this view by defining a "regulatory failure" as a situation in which "an agency has not done what elected officials would have done had they exercised the power conferred on them by virtue of their ultimate political responsibility." (1) In other words, agencies fail "when they reach substantive policy decisions ... that do not coincide with what the politically accountable branches of government would have done if they possessed the time, the information, and the will to make such decisions." (2) This definition of bureaucratic failure rests on two premises, one normative and the other positive. The normative premise is that regulatory policy should be maximally responsive to the preferences of a majority of the electorate. The positive premise is that the best way to assure bureaucratic responsiveness to majoritarian preferences is to make agency policy choices as responsive as possible to the preferences of the elected political leadership.

   The normative premise that democratic institutions should generally maximize majoritarian responsiveness is vulnerable to a variety of criticisms, including the claims that one cannot ascribe coherent preferences to a collective body, (3) that majoritarianism may actually reduce aggregate voter welfare, (4) and that political institutions should advance normative goals other than satisfaction of the preferences of current electoral majorities. (5) This Article brackets these objections and provisionally assumes, consistent with much of the existing literature advocating extensive political control of the bureaucracy, that majoritarianism is a legitimate and coherent institutional goal.

   What about the positive premise--that if majoritarianism is our objective, we should confer as much authority as possible on politically accountable elected officials? The notion that one can increase the political...