Paper by Anya Bernstein and Cristina Rodriguez: “Common wisdom has it that, without close supervision by an elected official, administrative agencies are left unaccountable to the people they regulate. For both proponents and detractors of the administrative state, agency accountability thus hangs on the concentrated power of the President. This Article presents a different vision. Drawing on in-depth interviews with officials from numerous agencies, we argue that everyday administrative practices themselves support accountability—an accountability of a kind that elections alone cannot achieve. The electoral story focuses on the aspect of accountability that kicks in as a sanction after decisions have already been made. We propose instead that the ongoing justification of policy positions to multiple audiences empowered to evaluate and challenge them forms the heart of accountability in a republican democracy. The continual process of reason-giving, testing, and adaptation instantiates the values that make accountability normatively attractive: deliberation, inclusivity, and responsiveness.
Our interviews reveal three primary features of the administrative state that support such accountability. First, political appointees and career civil servants, often presented as conflictual, actually enact complementary decisionmaking modalities. Appointees do not impose direct presidential control but imbue agencies with a diffuse, differentiated sense of abstract political values. Civil servants use expertise and experience to set the parameters within which decisions can be made. The process of moving these differing but interdependent approaches toward a decision promotes deliberation. Second, agencies work through a networked spiderweb of decisionmaking that involves continual justification and negotiation among numerous groups. This claim stands in stark contrast to the strict hierarchy often attributed to government bureaucracy: we show how the principal-agent model, frequently used to analyze agencies, obscures more than it reveals. The dispersion of decisionmaking power, we claim, promotes pluralistic inclusivity and provides more support for ongoing accountability than a concentration in presidential hands would. Finally, many two-way avenues connect agencies to the people and situations they regulate. Those required by law, like notice-and-comment rulemaking, supplement numerous other interaction formats that agencies create. These multiple avenues support agency responsiveness to the views of affected publics and the realities of the regulated world….(More)”.