Designing Agency Independence

Rachel E. Barkow, Insulating Agencies: Avoiding Capture Through Institutional Design, 89 Tex. L. Rev. 15 (2011). Lisa Schultz Bressman & Robert P. Thompson, The Future of Agency Independence, 63 Vand. L. Rev. 599 (2010). Gillian Metzger How do we structure an agency to be independent? Not surprisingly, the answer to that question depends on what we want the agency to be independent from. The traditional legal view, exemplified most recently by the Supreme Court's decision in Free Enterprise Fund v. PCAOB, is that Congress intends independent agencies to be independent of the President and it achieves this goal primarily by imposing limiting the President's power of removal. Not so fast, say Rachel Barkow, Lisa Bressman, and Robert Thompson. In two separate recent articles-one written before the Court handed down its decision and one after-these scholars argue that agency independence means both more and less than independence from the President. Barkow begins her article by arguing that what often has motivated creation of independent agencies is not presidential insulation but fear of agency capture, which she defines as the desire to protect an agency from one-sided political pressure from the well-financed industry interests that the agency regulates. Barkow then assesses how well traditional indicia of independence-such as removal, multimember heads, bipartisan requirements, and exemption from OIRA regulatory review-help to limit capture. She concludes that these features provide important insulation but are often not sufficient to create an adequate buffer against one-sided interest group pressure. Instead, Barkow emphasizes the value of other structural mechanisms that have received less attention in discussions of agency independence: guaranteed agency funding, substantive expertise requirements and revolving door limits, relationships with other agencies and the states, and an agency's ability to independently gather and disseminate information, provide congressional testimony, and represent itself in court. According to Barkow, these insulating features may be particularly helpful in equalizing the pressure that interest groups can otherwise bring to bear. Continue reading "Designing Agency Independence"

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