Regulatory Agencies Research Paper

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Broadly defined, regulation includes any governmental effort to control behavior by other entities, including business firms, subordinate levels of government, or individuals. Sovereign governments may cooperate under regimes of mutually-recognized restraint, the rules or decisions of which might also be characterized as regulations. Campaigns for elective office may likewise be subject to controls on spending and advertising. However, in most public discourse and social science inquiry, the term refers more narrowly to formal government programs (or to specific implementing decisions) intended to constrain economic activity in accord with some public-interest justification.

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Four primary concerns of regulation in this sense may be distinguished (Breyer 1982, Stone 1982). First, regulation may control (as in the case of occupational licensing) market entry. Second, it may (as in the case of electricity utilities and other ‘natural monopolies’) establish directly the prices that firms can charge customers. Third, it may limit the competitive practices available to firms, especially as regards pricesetting (e.g., the law of antitrust), advertising, and disclosure. Fourth, regulation may aim to improve the quality of specific work practices or products, often in the interest of protecting human health and safety, or the environment. These activities are sometimes subsumed under two more general hearings—‘economic’ (i.e., price, entry, and competitive practices), and ‘social’ (meaning generally health, safety, and environmental) regulation.

Social scientists have posed three primary empirical questions about regulatory programs. First, what forces lead to the creation of such programs? Second, and most commonly, they have asked what constellation of factors influences program behavior? Third, under what conditions may regulatory programs be significantly scaled-back or terminated? Normative questions also proliferate. Some varieties of regulation, especially in the United States, have been prone to intense controversy. Both business representatives and policy-focused academics have pursued long-running debates about the merits of various regulatory programs, the quality of their specific decisions, and possible institutional alternatives to the status quo.

1. Empirical Inquiry

Students of regulation have long found the formally-stated public goals of regulation inadequate to explain program creation and maintenance. From the 1950s to the 1970s, working within disciplines as diverse as economics, political science, and historical analysis, commentators viewed regulatory programs frequently as being prone to ‘capture’ by regulated interests (Huntington 1952, Bernstein 1955, Kolko 1965, Stigler 1971). By some accounts, regulation was said to have arisen because a diffuse majority favoring regulation (and motivated by a ‘public interest’ rationale, such as the elimination of predatory pricing or consumer fraud) succeeded, at least briefly, in obtaining legislative consensus, often in the wake of well-publicized scandal. Over time, however, according to this ‘life cycle theory’ of regulation posited by Bernstein (1955), waning public attention and media scrutiny was said to have allowed resourceful regulated interests, whose attention to regulatory program activity did not wane, to exercise a strong (even dominant) influence over the program, thus thwarting its original intent. A different version of capture analysis suggested that such programs were sometimes created, at least partially, at the behest of economic interests. Agencies might thus, in effect, be ‘born captured’ due to business incentives to seek stable and reliably profitable operating environments. The capture model of regulation is in some respects akin to a traditional political science metaphor, widely employed during the same period, that described the politics of narrowly distributive public policies in terms of mutually-reinforcing ‘iron triangles’ or subgovernments composed of interest groups, legislative committees, and agencies (Freeman 1965). The similarity is striking, even though an analytic scheme widely appropriated among political scientists (Lowi 1964) highlighted a distinction between ‘distributive’ and ‘regulatory’ politics.

During the 1970s and thereafter, however, scholars challenged increasingly the descriptive accuracy of both the capture theory and the ‘iron triangle’ metaphor. In the United States especially, this challenge stemmed importantly from the creation of regulatory programs (e.g., in environmental, consumer, and worker protection) where lack of media scrutiny, public indifference, and business dominance plainly did not apply over the long run (Wilson 1980). Indeed, the creation of these programs often represented sustained triumphs by idea-driven policy entrepreneurs over business interests that had to adjust to the presence of long-term political competitors. In one prominent instance, the regulation of nuclear power generation, a policy milieu changed dramatically from one to which the term ‘capture’ could arguably have applied in the 1950s. By 1980, the politics of nuclear power in the United States had evolved into a far more complicated set of power relations, in which environmental advocates and citizen groups competed effectively with the nuclear industry (Temples 1980).

Throughout the 1980s, political science commented increasingly about the inadequacy of broad generalizations regarding regulatory politics as a whole. The concentration of costs and benefits prevailing in regulation were found to differ importantly among agencies, and across issues within a single agency (Wilson 1980). The politics of broadcast regulation, pursued within a markedly vague standard of ‘public interest, convenience, and necessity,’ clearly varied between technical industry structure matters and issues of program content (Krasnow et al. 1982). Within public utility regulation, not only were issues determined to differ in complexity and conflict, with significant implications for the power of different kinds of advocates (Gormley 1983), but the characteristics of commission personnel were also found to vary in ways important to generating distinctive regulatory outputs (Berry 1984).

Regulatory policy also became the staging ground for scholarly argument over the relative influence of various political institutions. A conventional position among journalists and political scientists had for many years held that Congress does little to oversee bureaucratic behavior, largely because of the modest political incentives said to prevail (Scher 1963). In arguing against what he called ‘interest-group liberalism,’ Lowi (1969) bemoaned the vagueness that had crept into legislative delegations for regulatory and other programs.

A later principal–agent perspective on the legislative–executive relationship argued for the existence of a more robust oversight mechanism grounded in a rational legislative approach to structure and procedure that appeared only superficially to be weak (McCubbins and Schwartz 1984). Careful sifting of agency case histories determined that widely-trumpeted accusations of ‘runaway bureaucracy’ often directed at regulation were misplaced (Foreman 1988). Because regulation is politically contentious and generates substantial numbers of comparable implementation and enforcement decisions over time, political scientists (often working within the tradition of rational-choice models and principal–agent theory) have gravitated to regulation as a window on relative institutional influence more generally. Some analysts have emphasized the power of legislative principals (activated by the material stakes of affected parties) over agency behavior (Weingast and Moran 1983, Weingast 1984). Meanwhile, Moe (1982), examining time series data drawn from three US regulatory commissions, concluded that presidential power deserved emphasis. On the other hand, some analysts have looked inside regulatory bureaucracies, to the professional worldviews and incentives of staff members, as key drivers of agency behavior. In antitrust enforcement, economists and attorneys are among those professionals whose views have been found to have a profound impact on agencies, both in case studies (Katzmann 1980, Weaver 1977) and in quantitative analysis (Eisner and Meier 1990). On the other hand, the theory of overhead democracy embraced by Wood and Anderson (1993) ascribed variation in both the level and substance of antitrust regulation to a complex set of institutional forces; changing presidential administrations, congressional committee preferences, and court decisions all helped to mold antitrust activity.

Deregulation is rarer, and politically more problematic, than regulatory initiatives. As regards social regulation, such goals as a clean environment, and safe workplaces and pharmaceutical products, are popular with the mass of the public. In economic regulation, organized stakeholders would be expected to resist unfavorable change (i.e., alteration of profitable regulated environments). Given such forces, it is worth emphasizing that deregulation has occurred on occasion, and asking how this has come about. Political scientists Derthick and Quirk (1985) point to the power of both ideas and effective leadership. They observe that, by the late 1970s, economists had mounted a sustained, coherent, and nearly unanimous attack on the underlying justifications for price and entry regulation in the transportation sector. This procompetition critique gained added political impetus from the increasing visibility of economists in national policy debates, from the infiltration of economists into leadership of the regulatory apparatus, and from the transformation of deregulation into an anti-inflation and consumerist cause that both liberals and conservatives could support. Strong presidential and legislative leadership also proved to be pivotal.

2. Normative Assessments

Nearly all regulatory programs will find supporters and detractors in the social sciences. Unlike price and entry regulation, which regularly has found advocates of abolition in the economics profession, other types of regulation enjoy strong academic support on principle (e.g., recognition of ‘market failure’) though often not in specific detail.

Leading the charge for varieties of regulatory reform have been economists and economically-oriented analysts associated with policy research institutions or ‘think tanks.’ Criticisms of environmental policy stress varieties of putative inefficiency or irrationality. Costs are said to exceed benefits, to be higher than necessary to achieve a given level of environmental benefit, and perhaps to be masked altogether by inadequate economic analysis (Kraft 1996, pp. 165–6, Litan and Nordhaus 1983, Lave 1981). Inefficiency is sometimes argued to have been caused by the logic of political compromise (Ackerman and Hassler 1981), or by unwillingness to impose overtly visible losses on large numbers of voters (Nivola and Crandall 1995). Inadequate monitoring has long been said to bedevil assessment of pollution control efficacy (Crandall 1983, Davies and Mazurek 1998).

A broader, efficiency-based critique encompasses additional concerns, including the discordant, meandering, and arguably even panic-stricken character of regulatory politics and policy (Breyer 1993). Critics point to a chronic inability to set risk priorities, to confront risk–benefit and risk–risk tradeoffs (Graham and Wiener 1995), and to reconsider regulatory statutes in the light of such concerns.

3. International Perspectives

All developed nations regulate, but they vary substantially in both regulatory structure and regulatory political culture. The United States is often portrayed as having a markedly more adversarial and legalistic system than other countries. One study concluded that while ‘regulatory power has been directed at very similar ends [i.e., control of carcinogens]’ in Britain, France, Germany, and the United States, ‘the openness, complexity and divisiveness of American decision making have no parallel in Europe’ (Brickman et al. 1985, pp. 301–2). It is not clear, however, that the American style of regulation is necessarily more stringent than that of other nations. Conceding the more open regulatory style of the United States in comparison with Canada, Harrison and Hoberg (1994) nevertheless do not find the latter consistently less stringent than the former. Although institutions matter, their effects are ‘contingent on a number of other variables that influence policy, such as the balance of power between competing interest groups and the interests of the party in power’ (p. 181). Nevertheless there can be little doubt of the generally greater levels of hierarchy, and the more tightly-woven informal networks of personal relations, that characterize regulatory regimes in other advanced democracies in comparison with the United States (Badaracco 1985).


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