Setting the Regulatory Agenda: Statutory Deadlines, Delay, and Responsiveness

Date01 September 2019
Published date01 September 2019
DOIhttp://doi.org/10.1111/puar.13082
AuthorKathleen M. Doherty,Anthony M. Bertelli
710 Public Administration Review Septe mber | Oct ober 2 019
Abstract: Congress imposes statutory deadlines in an attempt to influence agency regulatory agendas, but agencies
regularly fail to meet them. What explains agency responsiveness to statutory deadlines? Taking a transaction cost
politics approach, the authors develop a theory of responsiveness to deadlines centered on political feasibility to explain
how agency managers map rulemaking onto calendar and political time. This theory is tested on all unique rules with
statutory deadlines published in the Unified Agenda of Federal Regulatory and Deregulatory Actions between 1995
and 2012. The argument and findings about the timing and ultimate promulgation of rules have implications that
reorient the study of the regulatory agenda from legal and political into more managerial terms.
Evidence for Practice
• Agencies frequently miss statutory deadlines but promulgate most rules under deadline by the next election.
• Statutory mandates passed by unified government are more likely to be prioritized for promulgation by the
next election.
• When the president’s party changes between a statute and its deadline, rulemaking may be delayed, but rules
are more likely to be promulgated by the next election and to be finalized.
• Structural insulation from elected officials increases delay, but it also increases the probability of
promulgation prior to the election.
• Delay beyond a deadline is less likely when deadlines are applied to recurring regulatory decisions compared
with novel ones.
Statutory language mandates administrative
rulemaking, but agency officials determine the
regulatory agenda—the substantive priorities and
timing of rulemaking. Congress often tries to influence
an agency’s agenda through the insertion of deadlines
into statutes. For example, both the Dodd- Frank Wall
Street Reform and Consumer Protection Act and the
Affordable Care Act set deadlines for implementing
key provisions. Through statutory deadlines, Congress
restricts the timing, rather than scope, of agency action
(Gersen and Posner 2007). Yet agencies often miss
deadlines—sometimes by staggering margins—and in
some cases, they fail to promulgate a rule altogether
(Gersen and O’Connell 2008; Yackee and Yackee
2010; Kerwin and Furlong 2011). When are agencies
responsive to political control through statutory
deadlines? To address this question, we examine delay
beyond deadlines and elections as well as whether rules
are promulgated at all. We argue that understanding
these two phenomena is crucial to distinguishing delay
from responsiveness.
We offer a transaction cost politics theory of
regulatory timing under statutory deadlines that is
both novel in the literature and consistent with the
views that public administration scholars hold about
the constraints agency leaders face in practice (e.g.,
Rainey and Steinbauer 1999; Ring and Perry 1985).
Deadlines, we argue, create a management problem of
optimizing the regulatory agenda subject to a political
feasibility constraint. Political feasibility is determined
by the interaction of institutions—Congress and
the president—and their preference configurations.
We identify three political conditions that affect the
political feasibility of meeting deadlines: when the
president and Congress share partisanship (unified
government) at enactment, a change in presidential
partisanship before a deadline, and structural
insulation of the agency.
Political feasibility may lead an agency to miss
deadlines but ultimately promulgate rules and do so in
advance of key elections. Such behavior, we contend,
does not demonstrate that agencies are unresponsive
to political control, but rather strategic management
of the regulatory agenda by public managers who
respect the preferences of political principals in light
of their agencies’ capacity for producing rules. We
Setting the Regulatory Agenda: Statutory Deadlines,
Delay, and Responsiveness
Public Administration Review,
Vol. 79, Iss. 5, pp. 710–720. © 2019 by
The American Society for Public Administration.
DOI: 10.1111/puar.13082.
Kathleen M. Doherty is assistant
professor in the Sol Price School of Public
Policy at the University of Southern
California. Her research explores the impact
of political control and the incorporation
of private sector actors on administrative
processes.
E-mail: kdoherty@price.usc.edu
Anthony M. Bertelli is professor of
political science at Bocconi University, Italy,
and fellow of the Dondena Center on Social
Dynamics and Public Policy. His research
considers the relationship between political
institutions and public administration.
E-mail: anthony.bertelli@unibocconi.it
Research Article
Anthony M. Bertelli
Kathleen M. Doherty
Bocconi University
University of Southern California

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