The Strategic Calculus of Bureaucratic Delay

By Rachel Augustine Potter, University of VirginiaThe Strategic Calculus of Bureaucratic Delay

Regulations created by bureaucratic agencies touch on nearly all areas of our lives, from vehicle fuel standards to whether the “Plan B” morning-after pill is available over-the-counter at the local pharmacy. Regulations—also known as rules—carry the same force-and-effect as laws passed by Congress, but we don’t pay nearly enough attention to them.

One element of the regulatory process that typically flies under the radar is timing. Rules can take government agencies many years or even decades to create. The reasons proffered for delay are numerous, often centering on procedural hurdles or bureaucrats’ ineptitude. In my award-winning paper “Slow-Rolling, Fast-Tracking, and the Pace of Bureaucratic Decisions in Rulemaking,” forthcoming in the July 2017 issue of the Journal of Politics, I offer a different perspective on delay in the federal rulemaking process—that timing is strategic.

I begin by pointing out that not all regulatory actions move at a plodding pace. Indeed, agencies often create new regulations at a relatively rapid clip, but such actions rarely receive notice since bureaucracies do not generally receive attention for being expeditious or efficient. Why then do some rules move fast while others are so slow? I argue that underlying this variation in pacing is an element of strategic bureaucratic behavior.

Creating a new regulation requires considerable bureaucratic effort and resources. Yet, the president, Congress, and the courts have the ability to upend an agency’s rulemaking project. Each branch can overturn an agency’s rule or to punish the agency in some way for writing a rule that does not align with their preferences. Pacing can be a tool to help agencies protect their rules from these consequences. In other words, agencies can speed up (fast-track) or slow down (slow-roll) the rulemaking process in order to undermine political oversight from the constitutional branches. When the political climate is favorable agencies rush to lock in a rule, but when it is less favorable they wait on the chance that it will improve.

To empirically demonstrate this argument, I rely on an event history analysis of more than 11,000 agency rules from 150 federal bureaus. I show that the pace of these rules slows significantly when the president, the Congress, or the courts are more inclined to disagree with—and potentially punish—the agency issuing the rule in question. Importantly, I am able to show that this delay is not simply tied to how complex the underlying rule is; that is, the observed delay is not consistent with an explanation based on agencies “working harder” to make good policy.

These findings make it very clear that bureaucrats are not neutral parties in the policymaking process. Rather, they have their own set of interests that they actively work to protect. Strategic pacing in the regulatory process also offers an answer to a long-standing puzzle in the rulemaking process. Specifically, many scholars have noted that agencies rarely make changes to regulatory policies as they move through the rulemaking process. But if agencies are subject to constant political scrutiny, how are rules able to withstand calls for change? Strategic timing is one mechanism by which bureaucrats are able to resist these political pressures.

Of course, bureaucrats are responsible for carrying out the entire rulemaking process, and timing is just one element of this process. In a larger book project, I look at other procedural tools that bureaucrats have in their arsenal and how strategic bureaucratic behavior affects the regulations that are ultimately produced via this process.

About the Author: Rachel Augustine Potter is an Assistant Professor of Politics at the University of Virginia. Her paper, “Slow-Rolling, Fast-Tracking, and the Pace of Bureaucratic Decisions in Rulemaking” received the Kenneth J. Meier Award for the best paper in bureaucratic politics, public administration, or public policy presented at the 2016 MPSA Conference. The paper will be published in the July 2017 issue of the Journal of Politics.

 

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