Regulatory Capture's Self‐Serving Application

• Published date: 01 September 2022
• Author: Susan Webb Yackee
• Date: 01 September 2022
• DOI: http://doi.org/10.1111/puar.13390

866Public Administration Review • September | Oct ober 20 22

Research Article

Abstract:Observers regularly assert that government regulations are captured—meaning the content of the regulation

is diverted away from the public interest and toward the interests of regulated industry. I argue that the label of

regulatory capture is often applied differently by policy losers than by policy winners. I hypothesize that when an entity

is unsuccessful in achieving its goals during regulatory policy making, that entity is more likely to deem the process

captured. With data from 41 FDA regulations and guidance documents, I find that—even when provided a common

definition—those interest groups engaged in the same rulemaking vary as to whether or not they would categorize the

process as captured. Moreover, this variation is negatively associated with whether the entity achieved its policy goals

during the rulemaking. These findings imply that scholars ought to reassess capture’s occurrence, as well as the political

and policy implications attached to its invocation.

Evidence for Practice

• The study provides evidence drawn from policy making at the U.S. Food and Drug Administration (FDA)

that the label of regulatory capture is applied inconsistently by interest group participants in the agency

rulemaking process.

• The research demonstrates a partiality toward categorizing a rulemaking as captured when an interest group

participant does not get its way. This finding implies that public agency officials—when they do not heed

the advice of public commenters—may need to worry about capture accusations.

• The study’s results raise the provocative possibility that capture’s designation may be employed strategically—

or even opportunistically—by an interest group to delegitimize an agency regulation when the group does

not agree with it.

• Given that policy makers and practitioners from both sides of the political aisle routinely highlight the need

to address regulatory capture, the evidence uncovered in this article strongly suggests that more attention

from the field of public administration is needed to better understand how regulatory capture is actually used

in practice.

By the looks of it, regulatory capture is all

around us: environmental disasters, financial

market crashes, medical device recalls, and

public land degradation. These and other examples

of regulatory failure may be the human and societal

consequences of allowing regulated industries to

regularly win out over the public interest. Yet,

appearances may also be deceiving.1

Past scholarship has sought an objective way to

empirically identify capture. However, given the

normative nature of how this construct is commonly

defined (Engstrom2013; Carpenter and Moss2014;

Yackee2014; Coglianese2016), the ability to do

so has eluded scholars and practitioners for years.

This article makes a different contribution: I use

the perspectives of those interest groups who are

engaged in the development of public agency rules

to identify capture. Put differently, I ask interest

groups to diagnose what they perceive to be regulatory

capture. Such groups are the entities most likely to

make capture claims in the public square. I propose

that understanding the systematic factors, if any,

that drive their designations is critical to uncovering

the politics attached to regulatory capture. In doing

so, this research helps to move the field of public

administration beyond the theory of regulatory capture

and toward a better understanding of how regulatory

capture operates in practice.

Drawing on the self-serving bias literature, as well as

adjacent literatures within social psychology, public

policy, and administration, I argue that the label of

capture is applied more readily by policy losers than

by policy winners. Specifically, I hypothesize that

when an interest group is less successful in achieving

Susan Webb Yackee

University of Wisconsin-Madison

Regulatory Capture’s Self-Serving Application

Susan Webb Yackee is a professor of

public affairs and political science at the

University of Wisconsin-Madison. She also

serves as the Director of the La Follette

School of Public Affairs. Yackee’s research

focuses on the policy making process,

public management, and regulation. She

won the 2019 Herbert A. Simon Career

Contribution Award from the Midwest

Public Administration Caucus for her

scholarly contributions.

Email: yackee@wisc.edu

Public Administration Review,

Vol. 82, Iss. 5, pp. 866–875. © 2021 by

The American Society for Public Administration.

DOI:10.1111/puar.13390.