Policy Process Part IV: Policymaking, Activism, and Litigation

New Deal Order

• 1930s-1960s

• High point of trust in government

• Progressive-era belief in expertise

• Accountability

• Pluralism

• Government and economic development

Progressive-era belief in expertise

• Modern problems needed administrative solutions (politicians/judges are corrupt, delegate policymaking to expert bureaucrats

• Hoped technical experts in executive branch would be politically neutral (calm of science>heated atmosphere of litigation) separated from politics

Accountability?

Opponents raised concerns about gov’t overreach from new policies/agencies.

• Resources for regulated agencies impacted by decisions? 

• Administrative Procedure Act of 1946

Administrative Procedure Act of 1946

Truce in struggle of legitimacy of federal regulation. Required agencies to… 

• Inform the public of their decisions

• public participation in rule-making

• Uniform standards

• Procedures for judicial review

A “Bill of Rights” for regulated entities. 

Pluralism

Theory where power is dispersed among many competing groups, no single interest dominates the gov’t

• Society composed of diverse interests that organize into groups

• Policy results from bargaining and compromises among competing groups

• Government acts as a mediating force

Pluralism in the New Deal

Pluralism generated by interest groups. 

• In theory, different interests would counteract each other, elaborate system of checks and balances. Businesses check each other’s excesses, corporate checks union and vice versa. 

• Legislation suggests key compromises (NLRA 1935, minimum wage legislation, farmers made competitive, Securities & Exchange Commission)

Government and economic development

Labor, business, and government cooperated to fuel postwar economic boom. Remade America with complex infrastructure

• Water

• Energy

• Transportation

• Housing

• TN Valley Authority

• Atomic Energy

• Hydroelectric power

• Interstate utilities

• Highways

Early Challenges to the New Deal Order

1. Landis Report (60)

2. Kennedy Consumer Report (62)

3. Port Huron Statement (62)

Landis Report

Problem of regulatory capture. Political pluralism in practice resulted in private dominance in government 

Regulatory Capture

Regulators start oriented to public interest but shift to private, acute in agencies that combined industry promotion with regulation. Industry uses regulations in a self-serving way

Iron Triangle

Many policy subsystems dominated by narrow interests. Agencies responded to politically powerful congressional patrons and influential regulated industries

Iron Triangle details:

Bureaucracy to interest groups: rulings on production and prices.

Bureaucracy to congress committees: info and help with constituents

Congress to bureaucracy: budget $

Congress to interest groups: legislation

Interest groups to bureaucracy: info/support

Interest groups to congress: campaign $, info

Kennedy Consumer Report

Called for a new set of rights for consumers (safety, info)

• Johnson affirmed Kennedy’s declaration of consumer rights by appointing first special assistant for consumer affairs

Port Huron Statement

youth movement. Advocated for issue-based advocacy, groups separate from political parties and government. Public interest is better supported through smaller, independent groups

Breaking Points in the New Deal Order

1. Pesticides

2. Automobile Safety

Pesticides - Background

In the 50’s, ag science says spraying insecticides is the best way to combat pest infestations. 

Carson

Wrote Silent Spring (1962) a critique of government spray programs. Relied on government and industry informants. Networked with Fish & Wildlife Service, FDA, and Interior Department

Pesticide Wins

• USDA regulated pesticides (prohibited uses of DDT)

• EPA created by EO in 1970, pesticide regulation moved here. DDT banned in 1972

Nader

Wrote Unsafe at Any Speed (1965) and built activists inside and outside of government to reform bureaucracy. Aroused public demand for safer automobile design.

Automobile safety - background

Government blamed for highway safety problems. Private interests, no political challenges, citizens treated with indifference. 

Automobile safety legislative action

Pressured party establishment with interwoven ties between government and business to negotiate with liberal critics. Pushed back against national safety council (which focused on drivers, not car design) and challenged auto lobbyists. 1966 Traffic Safety Act and Highway Safety Act

1966 Traffic Safety Act and 1966 Highway Safety Act

Legislative innovation, vehicle design, not drivers, tire/safety standards

Countervailing power in government

Create a new agency to counter pro-business agencies

• Ombudsman Office: strengthen checks and balances within the executive

• Consumer Affairs Office: would’ve had procedural power and advocated for consumer interests, but never passed

Nader’s Raiders

Elite, highly trained lawyers.

Nader’s Reforms

Nader wanted to reform the bureaucracy. Force them to act and be able to be sued. This would make them…

• More responsive to consumer interests (bodily health)

• Convince Congress to create a new bureaucracy by organizing diffuse interests and competing against concentrated interests. Insulated from politics. 

Public opinion shifts in pollution

Public thinks more resources should be spent on fixing pollution.

Costs & benefits of regulatory schemes

1. Concentrated costs, concentrated benefits: interest group politics

2. Concentrated costs, diffuse benefits: Entrepreneurial politics

3. Diffuse costs, concentrated benefits: clientele politics

4. Diffuse costs, diffuse benefits: majoritarian politics

Interest group politics

Groups compete for influence (labor unions & policy)

Clientele politics

Groups lobby for benefits, relatively unopposed (ag subsidies)

Majoritarian politics

Majority opinion, not private interest, prevails (social security policy)

Entrepreneurial politics

Unlikely, requires entrepreneurial actors to represent diffuse interests against concentrated interests (EPA)

Tactics of Nader’s Raiders

Authoring reports and accusing lawmakers of ignoring health for industries

• Sen. Muskie and Maine paper mills

• Sen. Randolph and WV coal mines

Vanishing Air

Focused on issues that are vivid and simplified (toxic substances, not financial products)

Government proof legislation

didn’t trust gov’t, wanted new laws governing bureaucracy

• Limited bureaucratic discretion

  • Policy prescriptions

  • Delivery deadlines

  • Legalize citizen lawsuits

Pollution & the policy agenda

Smog + air pollution + chemicals = harmful to human health

Public opinion shifts in air pollution

Public opinion views pollution as a wrong for gov’t to correct, not an acceptable and inevitable byproduct of modernity

• Nader and others push this narrative, their books raising fear and public alarm

Party Competition

By Earth Day 1970, overwhelming public demand for environmental policy. Parties competed for ownership of the issue.

• Nixon created EPA via EO

• Bipartisan legislation

Federal Air Pollution Legislation

2 very different acts.

1. 1967 Air Pollution Control Act: reliance on panels for regional rules, voluntary compliance, consideration of compliance costs

2. 1970 Clean Air Act: detailed EPA requirements, deadlines, citizen suits, minimized flexibility/power

Clean Air Laws

Iron Triangle Era: 

1. 1955 Air Pollution Control Act (1st Fed. law)

2. 1963 Clean Air Act

3. 1967 Air Quality Act

4. 1968 Nader’s Raiders Emerge

Contemporary Era: 

1. 1970 Clean Air Act Amendments

2. 1990 Clean Air Act Amendments

Venues for policy change

1. New Deal: independent exec. agencies = solution. Litigation is overheated, conservative, and hostile. Agencies have expertise and the calm of scientific inquiry. 

2. Flipped in 1960s. Agencies = captured by industry or indifferent to non-economic concerns. Courts are the best defender of public interest. 

How did the public interest movement see policy change? 

Through the courts. 

1. Level playing field

2. Free from political/economic influence of vested interest (they were outside of the iron triangle)

3. Courts can be shocked by sympathetic judges

4. Median judge was liberal

Standing

3-part test to determine whether a party has the standing to sue.

1. Plaintiff suffers injury that is concrete and particular and actual or imminent

2. Must be a causal connection between injury and conduct brought before the court.

3. Court decision will redress the injury

Factors that caused standing to expand

1. New laws explicitly expanded standing rights (Clean Air Act, Clean Water Act)

2. Judicial opinions from fed. courts expanded standing beyond financial harm

• Scenic Hudson Presentation Conference v. FPC

• United Church of Christ v. FCC

Scenic Hudson v. FPC (1965)

Decided citizens without economic interests could be aggrieved and had a legal right to protect their interests. Decision used in future cases to expand standing. 

With new standing rights, advocates turned to the courts against agencies perceived as… 

1. Dominated by private interests

2. Isolated and misguided bureaucratic fortresse

Targets

Agencies, not direct polluters. Blocked permitting processes and lawsuits blocking highways, bridges, pipelines, etc. 

National Environmental Policy Act of 1970 (NEPA)

Easier to hold up development projects.

1. If requested, NEPA required agencies to produce environmental impact statements

2. Then, lawyers could contest statement (conclusions, assumptions, etc.)

Effectiveness of courts

Court cases = faster results

Legitimacy

Nominally membership organizations, but only to collect $ and/or expand legal standing. Not political action for change, but investing in professional expertise, elite knowledge, and elite lawyers working within the legal system.

Adversarial Legalism

Lawyer-dominated litigation. Litigants deploy a mix of legal threats and challenges.

1. Policymaking

2. Policy Implementation & Dispute Resolution

Adversarial Legalism is distinguished from other more hierarchal methods of governance and dispute resolution

1. Bureaucratic administration: discretionary judgement by experts/political authorities

2. Judge dominated court proceedings: W Europe, staff do fact-finding, judges appointed through legal experience, not politicians. Lawyers/litigants play a limited role

Dimensions

1. Hierarchal vs. Participatory: single decision-maker vs. power to opposing parties

2. Formal vs. Informal: legalistic, formal legal rules/procedures vs. discretionary judgement/bargains

Kinds

1. Adversarial Legalism: participatory & formal

2. Negotiation: participatory & informal. Solving disputes and making policy through bargains. 

• Legislative processes: lawmakers build coalitions

• Mediation: negotiation with a third party, settlement based on agreement, not law

3. Expert Judgement: hierarchal and informal. Official decision-maker controls processes and makes decisions. No rigid legal process or courtroom procedures. ie panel of physicians for disability, traffic police at car accidents. 

4. Bureaucratic Legalism: hierarchal and formal. Prevalent in parliamentary democracies. Central decision-maker, judge/bureaucrat is strong, professional national bureaucracy involved in evidence gathering/weighing. Restricted role for outside lawyers and harder to spin a biased view. Uniformity of case-by-case decision making. Legal standards applied consistently, not making new policy. 

US Policymaking Paradox

1. High demand for comprehensive governmental protections, yet 

2. Widespread distrust of governmental authority

• Declining trust in government

• Americans ideologically conservative

• Founders fragmented public authority (separation of powers)

Coordinate vs. Hierarchal Systems

US is coordinate. Weak bureaucracy, power exercised horizontally/fragmented (checks/lawsuits to protect from tyranny)

Consequences of fragmented/weak policymaking authority

Many veto points, open to interest group pressure

Political origins

Since the 1960s, adversarial legalism for policymaking has expanded considerably.

1. Litigant-dominated modes of adjudication

2. Politically selected judiciary, powers to reverse legislative/administrative decisions

3. Entrepreneurial legal profession

4. Trial by jury, not experts

5. Few competing institutions of social control

Drivers of expansion of adversarial legalism

1. Congressional statutes empowered litigants to sue (fee-shifting provisions to recover legal fees)

2. Judges expanded standing in legal decisions

3. Tort law changes, easier to sue for injury from doctors, landlords, etc. 

4. SC increased legal rights of criminal defendants, prisoners, and welfare recipients

By the numbers 

Number of lawyers, expenditures, and federal indictments of federal public officials increased significantly. 

Federal Regulatory Process

Power of rulemaking is not distributed hierarchally.

• Fed. agencies may appear powerful (Congress delegates policymaking authority to them)

• But, Scope of authority is limited.

  • Procedural formalities: allow extensive interest group participation during rulemaking

  • Judicial Review: Regulatory decisions subject to review on substantive and procedural grounds

  • Outside groups are organized: challengers hire lawyers, economists, and scientists to dispute agency position

Public Policy

Statement from government of what it intends to do or not to do by law, regulation, ruling, decision, or combination of these. Lack of statements = policy as well. 

Policy Hierarchy

1. Constitutional

2. Statutory

3. Regulatory

4. Implementation and Enforcement Policies (Agency operating procedures)

5. Behavior of street-level bureaucracies

Regulatory Policy

Federal regulations have the force of law

Process required to promulgate a regulation is…

Specific. After Congress passes a statute…

1. Establish legal authority

2. Issue a Notice of Proposed Rulemaking (NPRM)

3. Solicit comments from the public for 60-90 days

4. Respond to public comments

5. Publish final rule

6. Judicial review of regulation (optional)

Social regulation

Public Interest era. Regulate byproducts of industrial production and processes. General agreement on the ends (human welfare) but less on the means (specific regulatory policies)

• Ag chemicals, logging, factory pollution, working machines, false advertising, etc. 

Economic Regulation

New Deal era. Rules that limit competition and stabilize markets in banking, airlines, railroads, etc. 

Enforcing Social Regulation

Government inspectors enforce regulations concerned with workplace safety, pollution, low-income housing, nursing home care, food processing cleanliness, maintenance, permit applications, etc. 

Political Challenge

Social regulation = source of political conflict

• Policies may never fully satisfy public demand for protection

• Policies are costly and cumbersome

Case Study Background

Pollution in US and Japan, how different countries regulate the same company. PREMCO and US subsidiary, AMERCO.

Japanese regulatory environment

Cooperation.

• Regulator focused on environmental outcomes (broad goals, ie no spills)

• Focus on regulatory flexibility (guidance, individual agreements)

• Cooperation with company (regulators visited frequently and maintained open dialogue)

US regulatory environment

Adversarial

• Regulator focused on firm processes defined in federal statute, narrow regulatory goals (12 hour dumping window)

• Aggressive inspectors focused on code violations (fines despite no actual damage)

• Distrust between company and regulator (regulators inflate environmental risk, controversy and political backlash)

US social regulatory style

Unique, more legalistic and adversarial between regulators and industries regulated. Unique in… 

• How Congress writes regulatory statutes

• How agencies promulgate regulations

• How regulators implement and enforce regulations

US regulation statutes

Detailed, prescriptive, and constraining. 

• Congress seeks control over agencies it doesn’t trust (statutes to prevent capture, deadlines, judicial review, citizen suits, etc.)

• Statutes include legally binding requirements (forces regulators into a 1-size-fits-all approach, limited use of administrative guidance)

• Complexity in statutes = legal ambiguity

Judicial Review

Regulations that implement statutes are frequently challenged in court.

• Prescriptive/complex statutes = legal ambiguities (lawyers work at every stage)

• Courts scrutinize

  • agency’s interpretation of statutory language

  • fairness of rulemaking procedures

  • quality of agency’s response to arguments by industry/advocacy organizations

Regulatory Process

Allows stakeholder participation, but not always in cooperative ways

• Starts with publication of draft legislation

• Then, public comments and open hearings. Interests present critiques and demands, agencies can revise drafts

• Private consultation between regulators and regulated industries is prohibited (other countries encourage these consultations to build cooperation)