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Interest Groups, Rulemaking, and American Bureaucracy

Abstract and Keywords

This article first outlines the major indirect sources and pathways of influence that interest groups use outside and within the administrative process to influence agency rulemaking. After reviewing the growth and changing nature of interest groups following and involved in rulemaking in Washington, it presents brief synopses of the avenues of influence available to them — presidency, the courts, and the Congress. A discussion of the more direct avenues for interest group influence is also presented, affording an overview of the rulemaking process. The four major opportunities for interest group participation and influence in the rulemaking process are reported: the agenda-setting stage, the pre-proposal stage, the notice-and-comment stage, and regulatory negotiation. It further offers an explanation of what is seen as the most profitable principles to apply in future research on this vastly understudied yet vital topic in American bureaucracy.

Keywords: interest groups, agency rulemaking, American bureaucracy, presidency, courts, Congress, Washington

The relationship between interest groups and administrative agencies of government is broad, deep, and permanent. By “agencies” we refer to departments, commissions, boards, agencies, public corporations, and other entities that advance public policy with authority delegated to them in statutes. By “interest groups” we mean any organized effort to articulate a point of view and affect the outcome of a public decision or action. In a given instance, this definition will embrace an extraordinarily large and diverse collection of politically active entities. Corporations—acting alone, in formal trade associations, or in temporary coalitions—are included in this definition, as are unions and various groupings of consumers. Groups representing virtually every subject affected (or possibly affected) by public policy are included as well. In addition, when considering federal agencies, it is important explicitly to include other levels of government among the groups attempting to exercise influence over agencies of the federal government.

(p. 591) As illustrated already in several chapters in this handbook (see especially those by Johnson, Krause, Rosenbloom, and Mashaw), it is widely understood that the constitutional branches compete among themselves for influence over a bureaucracy that has been delegated vast powers in our Madisonian political system of separation of powers, checks and balances, and federalism. This notion of “joint custody” (Rourke 1993) of federal agencies by Congress and the presidency, with the courts as arbiters, produces efforts to control agency discretion by various institutional means. Fearing what Dan Wood in his chapter calls “bureaucratic drift,” both ends of Pennsylvania Avenue routinely joust over the exercise of bureaucratic discretion, understanding as they do that administration is policy (Nathan 1983).

Jerry Mashaw is certainly correct when he writes elsewhere, “Much public law is legislative in origin but administrative in content” (1997, 106). As noted earlier in the chapter by Robert Durant and William Resh, “that content is comprised of the average 4,000 rules promulgated and interpreted annually by the federal bureaucracy.” Take the 106th Congress (1999–2000), one of the most active in recent times. While it was passing 560 laws, the executive branch of government was producing 157,173 pages of new rules and regulations (Ginsberg 2007, 166). In fact, rules and regulations outpace statutes in any given Congress, typically by a factor of ten to one (Kerwin 2007). Thus, Edward Corwin's (1936) encomium uttered so many decades ago still holds: the U.S. Constitution is an “invitation to struggle.” What Corwin could not foresee is that this struggle would take place ever more routinely within the confines of American bureaucracies.

In the face of these administrative realities and congressional obstacles to advancing their policy goals—and citing authorization under Article II, Section 3 of the U.S. Constitution “to take care that the laws be faithfully executed”—presidents routinely claim that they are duty‐bound to affect federal agencies' exercise of discretion by using what Elena Kagan (2001), a Clinton administration official, calls the tools of “presidential administration.” As Durant and Resh aptly chronicle in their chapter, presidents and their appointees seek to use both unilateral tools (e.g., executive orders, presidential signing statements, and national security directives) and contextual tools (changing agency budgets, structures, personnel, and decision rules) to create a policy bias in favor of presidential policy agendas (Durant 1992; Golden 2000; Maranto 1993; Waterman 1989). At the same time, the role of the U.S. Office of Management and Budget (OMB)—and, in particular, the Office of Information and Regulatory Affairs (OIRA) within it—as a central clearinghouse for agency regulations within the Executive Office of the President has spiraled.

Meanwhile, as George Krause reviews in his chapter, members of Congress join in the fray and try to insulate agencies by, among other things, locating them outside cabinet departments (and, hence, away from direct presidential control); creating multi‐headed boards or commissions that are more amenable to congressional influence; mandating staggered terms and partisan balances for commission members; requiring annual appropriations; placing agencies on revolving funds; and limiting the number of political appointees that agencies can have (thus diminishing opportunities for presidents to place like‐minded appointees in them). Nor is this a one‐way street. Bureaucrats in agencies also help frame presidential and (p. 592) congressional agendas and alternatives (Krause 1999). Indeed, as historical institutionalist scholars are wont to emphasize, the regulations promulgated by agencies are policies that, in turn, affect the nature of politics that follow in subsequent years (see Robertson and Durant [Chapter 7] in this volume for extensive discussions of the constitutive effects that policies have on politics).

What is more, agency rulemaking actions (or inactions) now routinely become grist for the judiciary. The reasons for this are compellingly developed by Mashaw in his chapter in this handbook. He writes that the “ubiquity” of judicial review of agency rulemaking reflects the “incapacity of other accountability mechanisms [managerial and political] to ensure that officials serve rather than rule.…For this reason ‘democracy’ and the ‘rule of law’ have become inextricably linked, with judicial review as the keystone of the legal accountability system (see, e.g., Stewart 1975).”

Yet to say that presidential and congressional efforts to oversee and control the bureaucracy are subject to important constraints is not to deny that the two political branches have a huge stake in and impact on the administrative process. Given the political, economic, and social stakes involved in agency rulemaking and the struggles that often attend rule development and implementation, it is hardly likely that either future presidents or congresses will abandon this battlefield to others or leave it to the courts to resolve their fights. As long as presidents accurately perceive that they are held accountable for everything that goes wrong on their watch, they will not abandon their quest to have OMB be the central player in performance measurement (Hult and Walcott 2004; Moe 1989; see Moynihan in this volume for an elaboration of these efforts). In turn, congresses whipsawed by these presidential initiatives and attempting to seize what economists call “first‐mover” advantages will return their fire in kind. If for nothing else, they do so to preserve institutional prerogatives. Yet they joust largely animated either by the partisan consequences of rulemaking or by substantive policy differences as rules are promulgated by agencies.

Nor, given the economic, political, and social stakes of agency rulemaking, would it be surprising to see interest groups continuing to be agents in this competition and, in some instances, competitors themselves. The reasons for this are clear. It has been calculated that the sixty‐eight federal agencies now issuing rules and regulations employ a quarter of a million persons in this enterprise, have a combined budget of $41.4 billion, and a (perhaps surprising) rate of budget growth of 46 percent since the election of George W. Bush in 2000 (Kerwin 2007). Moreover, in the wake of the 2008 financial crisis in the United States, repeated instances of corporate misfeasance or malfeasance, and efforts to regulate greenhouse gas emissions and expand healthcare coverage, the Obama administration continues to reach for additional regulatory powers—and the resources to be able to implement stricter regulations on the private sector.

What Christopher Klyza and David Sousa (2008) write concerning environmental and natural resources policy over the past three decades is equally apt for other policy arenas as well: gridlock in Congress does not mean policy gridlock for the system as a whole. The location and nature of the politics have shifted, leaving agency policymaking more contingent, conflictual, and reversible than policymaking by statute. (p. 593) Amid these developments, policymaking continues apace within agencies and will remain squarely within the crosshairs of interest groups in America for the foreseeable future.

In this chapter, we survey the sources and range of interest group influence in the deliberations, decisions, and actions of agencies, with a particular focus on agency rulemaking. We argue for the existence of, and explore the reasons and tactics underlying, a symbiotic relationship between interest groups and agencies that has profound implications for democratic governance and accountability in America. The constitutional branches of government may hold formal authority over the operations of agencies, but we argue that they also serve as conduits and abettors of interest group power, especially business and professional interest groups. In making our argument, we turn to the academic and professional literature devoted largely to federal agencies. Nonetheless, prior research makes us confident that our argument applies equally well, if not more so, to the regulatory vicissitudes of state and local levels of government (see, for example, Kraft and Kamieniecki 2007; Rabe 2004).

We begin by reviewing the major indirect sources and pathways of influence that interest groups use outside and within the administrative process to influence agency rulemaking. After reviewing the growth and changing nature of interest groups following and involved in rulemaking in Washington, we afford brief synopses of the avenues of influence available to them in the executive, legislative, and judicial branches of government. With this as background, we then turn to a discussion of the more direct avenues for interest group influence, affording an overview of the rulemaking process. Next, we review what a surprisingly sparse yet important prior research base tells us about the influence of interest groups in all phases of the agency rulemaking process. From the review, we discern what we know and do not know about this influence but emphasize that the limited findings we have to date suggest a power asymmetry favoring organized interests (and, especially, business and professional interests). We conclude with a discussion of what we see as the most profitable principles to apply in future research on this vastly understudied yet vital topic in American bureaucracy.

Influencing Agencies Indirectly: Interest Groups, the Constitutional Branches, and American Bureaucracy

Interest groups are certainly nothing new in American politics. As Hindy Schachter chronicles in her chapter, the Progressive reform movement which laid the foundation for the growth of the administrative state that we know today consisted of a (p. 594) disparate coalition of interest groups (e.g., agrarian populists, nativists, small business owners, foundations, business associations, suffragettes, urban good‐government types, and wealthy patricians). Privileged were professional and technoscientific skills that uneducated immigrants, women, and minorities did not have (see Durant [Chapter 7], Robertson, and Adams and Balfour in this volume for an explication of these dynamics and their implications for both scholarship and democracy in America).

As the decades passed, even greater access and influence accrued to well‐organized interests with technocratic, business, and legal skills. This occurred as the expertise‐based technoscientific path that federal agencies began in the Progressive Era grew even more expertise‐based, administratively complex, and legally adversarial during the New Deal and the Cold War. Indeed, by the mid‐1980s, leading scholars were referring to the “procedural republic” (Sandel 1984). In the aftermath of the otherwise beneficial Administrative Procedure Act (APA) of 1946, fragmented and judicialized rulemaking and adjudicatory processes were put into place formally by Congress that marginalized unorganized interests and average citizens even more from governance (see Mashaw in this volume for a similar point).

Not surprisingly under these circumstances, the number of interest groups in Washington spiraled, as did both liberal and conservative legal associations (e.g., the Federalist Society). The 1960s and 1970s saw a tremendous growth in the number of citizen or public interest groups, such as Common Cause and Ralph Nader's Public Interest Research Groups. Those concerned about their economic interests responded to this growth by forming their own organizations to counteract the rise in these citizen groups. In addition, individual businesses became much more active and savvy about government operations and the need to participate actively in the interest group game. As a result, the total number of interest groups increased dramatically. Due to different definitions of what constitutes an interest group, it is difficult to know for sure how many organizations are currently active in politics today. The Encyclopedia of Associations notes over 25,000 nonprofit organizations, which would not include a large number of for‐profit businesses that must be considered interest groups in the context of what they do to try to influence government.

What is clear, however, is that while liberal interest groups (i.e., those more prone toward government intervention in the marketplace and social activism) gained ascendency in the 1960s and 1970s, conservative interest groups learned immensely from liberals' organizational prowess and tactics to launch a stunning rebound in the 1980s and 1990s in America. Central to that rebound were the grassroots, mass‐mobilization efforts of conservatives during those years. The prowess of liberal interest groups had focused successfully on elections of Democrats to majorities in Congress. This afforded them allies on key congressional committees and subcommittees. Denied this access, conservative interest groups countered initially with a strategy of mass mobilization at the grassroots, through targeted mailing and via evangelical churches, creating the basis for an enduring part of their electoral (p. 595) coalition through the 2008 presidential campaigns (for the importance of evangelicals throughout American political history, see Durant 2009 and in Chapter 7).

Moreover, realizing that liberals had captured law journals and the judiciary more generally and that policymaking was shifting to agencies, the strategies of conservatives shifted accordingly. Conservative foundations afforded funding for legal studies programs, legal journals, scholarships, and conservative think tanks (e.g., the Heritage Foundation) to joust with liberal counterparts. In addition, if one lacked majorities in Congress and most policy was being promulgated through agency rulemaking that might eventually find its way to the courts, a focus on presidential and judicial appointments made strategic sense (Teles 2007). And when congressional leadership shifted into the hands of conservatives after the 1994 election, maintaining that coalition involved pursuing interest group interests through such efforts (e.g., appointing industry representatives to agencies), as well as the Republican “K Street” strategy. The latter was not only designed to get more Republican lobbyists into Washington lobbying firms but to develop the next generation of agency appointees and congressional candidates (Zelizer 2007).

Regardless of philosophical bent, interest groups draw on an impressive array of resources and may exploit many points of access when they attempt to influence the decisions of agencies. Each of the constitutional branches of government—the presidency, the judiciary, and, most important, the Congress—is available to groups seeking indirectly to affect what agencies do. Indeed, with the advent of what Klyza and Sousa (2008) call venue shifting, each of these branches has witnessed an upsurge of attention by interest groups. Interacting in critical junctures with increasing polarization and political gridlock in Congress (Hacker and Pierson 2007), legislators began accelerating Barbara Sinclair's (1997) “unorthodox legislating” in ways directly affecting perceptions of the competency of government agencies. This venue‐shifting approach used tax expenditures and devolution of responsibilities to states, appropriations bill riders, and the budget reconciliation process (where riders from opponents are disallowed and a majority vote on closure in the Senate can pass legislation) to attain their policy ends. And as part‐and‐parcel of this effort, lobbying by interest groups intensified across the political spectrum.

Also illustrative of venue shifting related to administrative dynamics were the hiking up of aforementioned efforts to centralize agency rulemaking, to impose excessive analytical requirements on regulatory agencies already lacking the capacity to deal with spiraling responsibilities, and to use “sue‐and‐settle” strategies in the courts (Teles 2007). In the case of the latter, interest groups sue agencies and then appeal decisions that go against them, wait for a friendly Justice Department to do the same, or settle if decisions favor their interests. Collectively, these efforts only further increased the opacity of government to ordinary citizens and advantaged well‐organized and legally and technically savvy interest groups, especially as agency rulemaking became ever more conflictual, contingent, and reversible. To see how and why this is the case in greater detail, we offer a brief synopsis of each avenue—through the presidency, the courts, and the Congress—for interest group lobbying regarding rulemaking.

(p. 596) Working the Presidency

The president directs the executive branch of the federal government, submits budgets for its operations to Congress for review and approval, and signs resulting appropriations legislation. He also signs the more fundamental authorizing statutes, the content of which he strongly influences and which vest agencies with the legitimacy and power to carry out their missions. The president selects cabinet secretaries, agency heads, and the senior White House staff, who work at his pleasure, and he screens thousands of political appointees who populate the policy levels of the federal bureaucracy. Various White House staff organizations are dedicated to the policy agenda of the president, working hard to ensure that the agencies under a president's authority actively promote the goals of the administration. Particularly notable, as mentioned earlier, is OMB's OIRA, which is empowered to screen all significant policies developed by executive branch agencies before they go into effect.

Interest groups are fully aware of each of these presidential powers. They raise money for and urge their members to support the campaigns of candidates for president. Nothing is quite as attractive to an interest group as the prospect of a friendly ear (or ears) in the White House. They lobby the White House, and on occasion the president himself, on agencies' authority and budget matters. They offer suggestions for agency leadership positions and political appointees, and many are selected from their ranks. They maintain a liaison with White House staff organizations, suggesting areas for changes in policy and supporting initiatives that benefit their membership.

It is important to note the obvious here. In these activities as well as those described below, all interest groups are not created equal. Aside from being on the right side of a given presidential election, interest groups have varying levels of resources, organization, and sophistication. Like most things in political life, those with money, education, and elaborate networks are far more likely than groups or institutions less well endowed to be successful in their efforts to move agencies. Moreover, interest groups are more powerful when they are widely distributed across congressional districts (rather than concentrated in specific regions); can take advantage of the ability of policies to morph into other types over time (e.g., from distributive into redistributive policies); and can seize upon boundary effects (i.e., where events in one area of politics affect related areas) to their advantage (Baumgartner and Jones 1993).

To be sure, some studying domestic agencies and their relationships with the White House have found that organizations change or evolve mostly as a product of the domination of the process by contending interest groups and their legislative champions (Lewis 2003; Moe 1989; Weingast and Moran 1983; also see Wood and Krause in this volume). Others, however, who have studied the impact of interest groups in the national security policy domain claim presidential dominance by virtue of “first‐mover” status (Zegart 1999). They find that agency evolution (i.e., organizational change) is determined largely by the efforts of presidents and bureaucrats (not interest groups and their congressional champions) pursuing their self‐interests and “battling over agency structure far away from the Capitol steps” (Zegart 1999, 7). There is also some evidence, however, that in hybrid policy domains where domestic and national security domains intersect (e.g., trade policy or environmental security policy), Congress and the bureaucracy dominate rather than either Congress and interest groups (domestic policy) or presidents and the bureaucracy (national security policy) (Durant 2006).

Working the Judiciary

Over the years, scholars have documented the ability of interest groups to use the courts to achieve policy objectives when they find other routes to their influence blocked or unfriendly. The law of standing—the most important of several standards that determine whether someone will be granted the right to sue in court—once worked decidedly against those who would approach the judiciary in such a manner. Prior to the APA, for example, the law of standing had the effect of shielding agencies by ensuring that only persons with a “legally protected interest” that was threatened or damaged by an agency action could seek redress in court. In addition, the concept of standing has often been extended from significant economic and physical harm to the broader “public” interests that many statutes are intended to protect (Stewart 1975). For example, this might include the aesthetic or recreational interests associated with U.S. Environmental Protection Agency regulation under the Clean Air Act.

But as David Rosenbloom and Mashaw discuss at length in their chapters in this volume, most of those legal obstacles were swept away by the mid‐twentieth century. This made the courts generally open to anyone who could demonstrate harm, or even the possibility of harm, from the action of the government. Since the 1970s, the courts also have become less deferential to bureaucratic expertise in reviewing administrative policy decisions. This has resulted from statutes and judicial precedents that have required agencies to base those decisions on a record.

Space will not allow a full exposition of the history of interest group litigation. Suffice it to say that the laws of civil rights, environmental quality, workplace safety, employment opportunity, and countless other areas of our daily life have been profoundly affected by the decisions of judges in cases brought by interest groups (see Rosenbloom in this volume for a discussion of this dynamic across several policy arenas). Today, interest groups sue agencies over the rules they issue, contest the manner in which those rules and regulations are implemented, and enforce the adjudication of disputes that occur in agency tribunals. The cases number in the thousands each year and their cumulative effect on the work of agencies is enormous.

Working the Congress

As documented comprehensively in other chapters regarding principal–agent theory and the new economics of institutions, Congress has a variety of ways that it tries to “stack the deck” to influence agency operations (see especially the chapters by Wood, (p. 598) Krause, and Bendor and Hammond). And all ultimately lead back to interest group influence on the bureaucracy as members of Congress try to ensure power, access, and influence to themselves and organized interests with a stake in agency rulemaking and adjudication (also see Zegart in this volume on this point). Through authorizing legislation, Congress establishes the mission, goals, and powers of agencies. Through its power of the purse, the legislative branch also provides agencies the resources needed to carry out the mission, accomplish the goals, and exercise the powers granted in authorizing legislation. Through another formal power, one house of the Congress—the Senate—must confirm the president's choices to lead agencies. By actively lobbying the Congress in each of these areas, interest groups can exert substantial influence over agencies, either in support, opposition, or some combination of the two.

After authorizing, appropriating, and confirming appointees, the influence of the Hill over agencies continues through oversight and casework. In their oversight activities, congressional committees and subcommittees conduct hundreds of hearings each year for the purpose of assessing agencies' implementation of legislative programs. These efforts are supported by the Government Accountability Office, the Congressional Research Service of the Library of Congress, and the Congressional Budget Office. Casework entails inquiries by individual members of Congress regarding any and all aspects of a given agency's operations. These casework activities are almost always undertaken on behalf of constituents seeking redress or largesse from the government. Congressional oversight and casework often lead to creating new legislation, amending existing authorities, and altering patterns of funding—in effect, completing the perpetual cycle of legislation.

In every one of these areas of congressional activity, the intervening influence of interest groups is evident. The very composition of Congress itself is affected profoundly by the financial and human resources that interest groups bring to bear on the electoral process. The literature of campaign finance and its implications is replete with observations and inferences about the access, and some would say sway, that contributions provide interest groups in congressional deliberations. Confirmation hearings for presidential appointees prominently feature leaders of interest groups commenting on the strengths and weaknesses of a given nominee. In fact, the eventual votes by individual senators that determine whether an appointment will go forward also are affected by information provided by, and in some cases the demands of, interest groups.

When they legislate, be it in authorization or appropriations mode, individual members, committees, and their all‐important staffs are barraged by information and opinions offered by interest groups (see Workman, Jones, and Jochim in this volume for an information‐processing‐based normative theory of American bureaucracy incorporating these dynamics). Concerns regarding the role of money and interest group influence in legislation are well founded and entirely legitimate. So, too, however, are the arguments that interest groups are indispensable sources of information for legislators in their efforts to fashion legislation. Both legislation and (p. 599) representation, the two critical functions performed by Congress, are advanced by information provided to them by interest groups.

While its institutional resources are formidable, the nature of contemporary public policy—with its multiple dimensions, vexing complexity, and inevitable uncertainties—demands Congress draw on its widest and deepest set of resources. Essential information includes the technical and scientific information needed to craft credible statutes as well as the political information needed to assist members in their efforts to represent their constituencies. The collective resources of interest groups dwarf the institutional resources of Congress, and nowhere is the phrase “knowledge is power” more applicable than in our contemporary legislative process.

Interest groups are vigilant when it comes to actions that affect their members. They are fully aware that the enactment of a statute is only the first step in a very complex process by which the promised benefits or costs of a new, amended, or freshly funded law are transformed into tangible effects. Oversight and casework are elements in this extended process, and interest groups are clearly instrumental in both. Priorities for oversight often are determined by input from interest groups about the relative successes and failures of public programs administered by federal agencies. Like confirmation hearings, oversight hearings feature witnesses and testimony from interest groups.

Casework can be affected by interest groups in at least two ways. First, groups may approach individual members of Congress for assistance with a systemic problem they perceive in a given agency's stewardship of a program they consider important. The inquiry that results from this intervention may end with the agency's response to the member's request or it may be elevated to a more collective form of oversight if the member in question is able to influence the agenda of a key committee. Less directly, interest groups are very active in providing their members the information and access they need to press their own cases with members of Congress. Also, as the literature of representation amply demonstrates, the offices of members of Congress are organized and staffed to ensure that constituents get prompt and effective responses to their entreaties.

Beyond the Constitutional Branches: Direct Involvement in Agency Rulemaking

Given these diverse avenues of access, perhaps nowhere has more rhetorical heat been generated amid less empirical light than on debates over businesses' influence on public policy. Moreover, researchers tackling this important question reach dissimilar conclusions. No one doubts that business influences public policy. At issue is the extent of its influence relative to other actors. In the tradition of Charles Lindblom's (1977) classic Politics and Markets, some recent scholarship has found that business holds a privileged position in policy debates because of its unparalleled resources and centrality to the nation's economic prosperity (e.g., see Lehne 2006; Schlozman and Tierney 1986; Vogel 1996). Others tread more in the tradition of Raymond Bauer, Ithiel de Sola Pool, and Lewis Dexter's 1963 classic, American Business and Public Policy. They find that business is constrained and increasingly on the defensive amid an explosion of politically and media‐savvy interest groups (e.g., see Baumgartner and Leech 1998; Berry 1999; Smith 2000). Still others find more of a contingency relationship, for example, with business interests more or less dominant at various stages of the policy process; across and within parties (e.g., Democrats split over the environment on the basis of regional interests); and in terms of business size, diversity of interests, and resources (Kraft and Kamieniecki 2007).

Although most of these studies have focused on the influence of business in the legislative process, the post‐legislative phase of public policy implementation consists of a number of critical decision‐making processes, resident in agencies, that are more directly and substantially determinative of the course of a given public program. As noted above, these decision‐making processes actually parallel the powers granted Congress, the presidency, and the courts in the Constitution, making the bureaucracy a battleground for control over the discretion it exercises. As Mashaw discusses more comprehensively in his chapter, agencies make law through the issuance of rules and regulations. They execute the laws they write through their implementation and enforcement of public programs. And they adjudicate hundreds of thousands of disputes each year in specialized tribunals staffed by administrative law judges and hearing examiners.

There is no question that the decisions made in these agency systems have more frequent and direct effects on interest groups and their members than those taken by the constitutional branches. So it would be curious indeed if these masters of political action were indolent when it came to the internal operations of agencies. Indeed, interest groups are a constant presence and a real force in agency decision making. The question, again, for us is whether or not business and professional interests have undue, if not inordinate, influence on these processes. Our review of the limited amount of research on agency rulemaking suggests that they do. Before reviewing that literature in the next section of this chapter, however, it is useful to review the rulemaking process itself and the opportunities it offers for influence.

Cornelius Kerwin (2007) has described rulemaking as the most important function performed by agencies of government. Rulemaking is a form of lawmaking, the preeminent power granted government under our Constitution and the first power discussed in that document. Rulemaking produces requirements, procedural and substantive, that carry consequences for noncompliance. It is true, of course, that rulemaking is a subordinate process, owing its authority and legitimacy to statutes written by Congress and signed by the president. But that formal status notwithstanding, rulemaking has eclipsed legislation in importance in a number of ways.

As we noted earlier, rules outnumber statutes by many multiples; a single statute can spawn hundreds and occasionally thousands of rules. Far more important than (p. 601) sheer numbers, however, is the nature of the direction contained in rules and regulations. Virtually no statute of significance can be implemented as written by the agency receiving its authority. Due to a number of factors—a lack of time, a lack of technical expertise, a lack of political will—Congress produces statutes that are incomplete and/or imprecise. Using various strategies noted earlier in this chapter, they delegate to agencies the immense task of turning the general goals and objectives contained in legislation into the types of standards and procedures that provide the true architecture of contemporary public programs (for discussions of the logic of legislative delegation, see Wood and Krause in this volume). Indeed, rules are the most precise statements of one's rights and obligations under the law that the public receives without undergoing a formal enforcement action by an agency or a judicial proceeding. The collective impact of rules constitutes nothing less than the operational definition of public policy.

After many years of relative inattention to the quality of delegated authority, Congress eventually was brought to heel by the Supreme Court. The result was the passage of the seminal and aforementioned APA of 1946, and from that time, repeated efforts by the legislative branch have ensued to exercise control over rulemaking through the imposition of procedural requirements. The largest category of rules affecting the public were generally subject to “notice‐and‐comment” provisions, requiring agencies to inform the public of the intent to issue a rule and allowing the public to participate in its development, usually through the submission of written comments.

Today, agencies writing regulations must comply not just with the basic requirements of the APA but with a myriad of requirements found in statutes such as the National Environmental Policy Act, the Paperwork Reduction Act, the Regulatory Flexibility Act, the Data Quality Act, and the Federal Advisory Committee Act. Additionally, individual statutes may impose additional requirements. Presidents, not to be outdone or marginalized, have issued multiple executive orders mandating types of analyses and White House reviews of both proposed and final rules. Meanwhile, the courts have issued thousands of decisions that also have affected the ways agencies interact with the public when writing regulations.

One important effect of these decades of procedural developments is to ensure that rulemaking is a target‐rich environment for interest groups. Each procedural requirement provides a different avenue or basis for interest group involvement in rulemaking. Equally important, the massive delegations of authority from Congress to agencies have rarely, if ever, been matched with adequate resources for agencies to do the essential research and information collection needed to flesh out vast, near‐empty areas of highly complex and frequently controversial regulation. So even if a massive body of law did not require it, the current mismatch of agencies' rulemaking resources and their rulemaking tasks would drive them to interest groups as a ready source of information and analysis for their work. Consequently, the need for information and the many mandates to engage the public are powerful forces ensuring a prominent role for interest groups in the development of regulations.

(p. 602) Influence, Interest Groups, and the Rulemaking Process: An Analytical Perspective

The fields of political science, public administration, and policy analysis have been slow in turning their formidable scholarly resources to the study of rulemaking (Kerwin 2007). Nevertheless, the body of research that currently exists does offer some insights into the involvement of interest groups at key stages in the rulemaking process, the tactics they employ, and the effects their participation has on the content of regulations. In this section, we focus on the limited but suggestive research that has been done on four major opportunities for interest group participation and influence in the rulemaking process: the agenda‐setting stage, the pre‐proposal stage, the notice‐and‐comment stage, and regulatory negotiation.

The Regulatory Agenda‐Setting Stage

Perhaps the least studied and, hence, least understood aspect of the impact of interest groups on the rulemaking process in agencies is that of agenda setting. Who decides (and how) which rules will eventually be considered by an agency, and do interest groups have either direct or indirect effects on the process? Possibly the only completed study of agenda setting are the findings of Marissa Golden's (2003) interviews with thirty‐two officials from five different agencies. Interestingly, Golden finds that although the origins of rules are extremely diverse and vary across agencies, Congress is the single most important source of initiatives. However, direct communications to agencies from interest groups are significant as well. Moreover, members of Congress are also likely to be advocating on behalf of relevant interest groups.

William West's (n.d.) recently collected data on 290 individual regulations support the impressions of Golden's interviewees that many rules are required by statutory law. Almost 35 percent of all rules and about 50 percent of all significant rules were “nondiscretionary.” A finding that is perhaps more germane to the present concern is that 41.6 percent of all discretionary rules were prompted in whole or in part by requests from business or professional groups. This figure dwarfed other external influences on agencies' discretionary agenda, such as other agencies and state and local governments (5.8 percent), advisory committees (4.2 percent), public comments on earlier rules (4.2 percent), and public interest groups (2.6 percent).

Tentatively, this suggests that the relative influence of business/professional groups is even greater in agenda setting than at later stages in the rulemaking process. If true, this might plausibly be explained by the fact that the great majority of rules are amendments to existing regulations. Business and professional groups often routinely communicate with agency staff as regulations are being implemented because they tend to be affected by those regulations in an immediate and significant way. (p. 603) Consequently, it is they who are likely to identify the need to revise policies that are unclear, unrealistic, or outmoded because of changes in technology or business practices. Indeed, such communications may be so routine and informal that agency officials have difficulty remembering whether it was they or regulated interests who first identified the need for a new regulation.

The Pre‐Proposal Stage

Nor is there a great deal of research as yet on the pre‐proposal stage more generally and the influence of interest groups within it. This is peculiar because proposed rules are almost always very specific and frequently take years to develop. It is during the pre‐proposal stage of the rulemaking process that agencies allocate scarce organizational resources to some problems and not others and then at least tentatively decide how those problems should be addressed. One can certainly speculate in this regard that proposed rules typically embody significant sunk costs as well as political momentum in some cases. Indeed, it is for this reason that the institution in the mid‐1980s of an annual regulatory calendar (now the Unified Regulatory Agenda) was viewed as such a significant supplement to regulatory review.

What does exist as evidence, however, adds additional weight to our findings regarding agenda setting about the inordinate influence of nongovernmental actors, especially business and professional groups. Interest groups surveyed by Scott Furlong and Kerwin (2005), for instance, state that coalition formation and informal contacts before the notice of proposed rulemaking is issued are perceived to be the most effective ways to influence agency rulemaking. This is also confirmed by West (2004) in his study examining forty‐two regulations: only six of these did not have some informal gathering of information.

Although a few works have focused on the management of proposal development from an organizational perspective over time (Kerwin 2007; McGarity 1991), very little research has focused on stakeholder participation in the process. One exception to this neglect is a study supervised by West (2009) which suggests that communication between interest groups and agencies prior to the proposed rulemaking is quite common and, indeed, is encouraged by agencies. Based on interviews with agency officials, its findings are consistent with Furlong and Kerwin's finding that interest group representatives view participation during the pre‐proposal stage of rulemaking as a critical opportunity to shape policy. Moreover, West's study suggests that business interests participate more actively and effectively in proposal development than do other types of groups.

West's study also suggests that although the character of participation is highly idiosyncratic, it tends to be informal and is not usually structured by the institutional guarantees of inclusiveness and transparency that constrain the comment phase of rulemaking. Advanced notices of proposed rulemaking that provide open invitations to participate in proposal development are the exception rather than the rule. Even for significant regulations, they are used less than 15 percent of the time. Instead, (p. 604) participation generally occurs either at the specific invitation of the agency or at the uninvited initiative of the group. Unlike public comment, moreover, pre‐notice participation is not usually included in the public record. Thus, although the informality of pre‐notice group participation may be salutary on the whole, perhaps providing opportunities to fashion politically acceptable compromises that are more difficult to achieve during the comment phase, it also may pose important issues of legitimacy.

The Notice‐and‐Comment Stage

As noted earlier, one of the primary mechanisms for interest group participation in the rulemaking process is through their ability to comment on proposed rules. Moreover, while providing comments on a proposed rule was viewed by groups in several of the studies above as less effective than trying to influence rules prior to proposals, groups also indicate that they can ill afford not to put their views on the public record by providing written comments. As such, their efforts at this stage of rule promulgation indicate, at a minimum, that interest group members perceive they can influence rules by acting in this fashion.

For agencies, the provision of opportunities to participate lends a sense of legitimacy to the development of policy. This legitimacy is political in that interested parties have the ability to voice their opinions. It is also substantive because agencies often rely on technical and substantive information from these groups and this helps frame the ultimate policy itself. While there are other important ways for participation to occur, the APA provides a minimum framework that, in effect, blesses policymaking in this way. Rosenbloom and Mashaw afford more details on the history and consequences of the APA. Thus, it suffices presently to point out that the so‐called dialogue requirement was, among other things, instituted to require agencies to respond to comments from interested parties on the rules they were contemplating and, hence, to justify what they were proposing.

In addition to the APA's provisions, Congress, presidents, and the judiciary have imposed other requirements on agencies in the context of participation in rulemaking. As noted above, Congress has passed statutory requirements in certain cases that generally have attempted to increase the level of participation in rulemaking. For example, some laws have required a minimum number of days to allow for public comments and others have required agencies to conduct public hearings. Congress also has passed broader laws that require agencies to collect certain types of information; in the case of the Regulatory Flexibility Act, for example, the effect a regulation may have on a small entity. Presidents have even used executive orders or pursued administrative controls over how agencies interact with outside parties.

Some observers have claimed that these additional requirements have led to the ossification of rulemaking and, in turn, have induced agencies to rely on other mechanisms, such as guidelines to agencies about how to manage their programs (McGarity 1992, 2005). Yet, while ossification often has been raised as a major concern, (p. 605) Jason and Susan Yackee's (2009) systematic study on the issue did not find any evidence of ossification of rulemaking between 1983 and 2006. Although their study ignores possible delay during the important proposal development phase of rulemaking, it concludes that both the number of rules and the amount of time it takes to publish a final regulation have not been significantly affected by the various procedural requirements. There also has been a recent amendment to Executive Order 12886 in January 2007. Under this amendment, guidance documents are brought into the purview of OMB review and generally are treated more like regulations. At this time, the extent to which this may affect participation in these policies is unclear, but it does bring these important policy documents more into the open.

Research on participation in rulemaking generally comes from case studies of individual rulemakings and rulemaking programs, analyses of official records of government agencies, and surveys of interest groups. Case study research tends to focus on major policies, such as A. Lee Fritschler and Catherine Rudder's (2006) recounting of the efforts of the tobacco industry, the advertising industry, health groups, and consumer groups to influence the Federal Trade Commission. As such, it is not surprising to see evidence of a large amount of interest group participation in these studies. However, using official records can distort how much interest groups participate in and affect agency rules because a large portion of federal rulemaking is minor and generates little if any public comment. Survey research on interest group participation also exists. It suggests that interest groups pay attention to and participate in agency rulemaking processes (Kerwin 2003).

Research also exists on the question of who participates. Some suggest business interests participate in rulemaking more often than other types of groups because of their superior resources and their need to protect their production processes from government intervention. Yet, as noted above, Congress passed a number of policies to encourage participation, particularly for those groups that may have resource constraints such as consumer or environmental organizations. Still, empirical research seems to bear out the contention that business interests dominate participation in the rulemaking process. Research by Golden (1998), Sheldon Kamieniecki (2006), Yackee and Yackee (2006), as well as the authors of this article, has found a business interest bias. For example, in a study examining over thirty regulations from four different agencies, Yackee and Yackee (2006) found that over 57 percent of public comments came from business interests. Likewise, survey data from studies conducted by Furlong and Kerwin (2005) suggest that businesses, and the trade associations that represent businesses and professions, are involved in rulemaking more often than are other groups.

To be sure, measuring participation in rulemaking is one thing, but the question of whether or not interest groups—and especially businesses—influence rules themselves is more difficult to measure. Not everyone is convinced that public comments—including those by businesses—during the notice‐and‐comment period make much of a difference in rulemaking. Kamieniecki (2006), for example, finds that group input has minimal influence on shaping a final rule regardless of the type of interest group. He also concludes that the proposed rule is “probably a better indicator of the amount of influence business has in the rulemaking process” (133). (p. 606) Still, some research exists that has examined this important issue from different perspectives and found success.

Another way that researchers gauge influence is by actually examining the changes that occur between the proposed and final rule and trying to make a determination of whether or not public comments led to these changes. Susan Yackee (2006) uses this technique and believes that influence does occur through the traditional notice‐and‐comment process. Comments on proposed rules did lead to changes in the final rule in terms of the amount or level of regulation by the agency and also in terms of specific recommendations made by groups. It also appears from her research that agreement in public comments makes a difference in terms of agencies' willingness to make changes. And most critically for our argument, a separate study (Yackee and Yackee 2006) suggests that the type of interest matters: business commentators seem to have more sway over rule content. Moreover, as the proportion of their comments increases, so too does their influence.

Negotiated Rulemaking

A more intense form of rulemaking participation and potential influence can occur in negotiated rulemaking (or “reg‐neg”). While not a formal part of rulemaking efforts, the approach has been used in a variety of areas and thus merits our separate attention as a means for enhancing private influence over the rulemaking process. In reg‐neg, interested parties work directly with agency rule writers in a consensual way in an attempt to craft actual rule language that is then published as a proposed rule. Phillip Harter (1982), a long‐time proponent of reg‐neg, argues that contemporary rulemaking is a fundamentally adversarial process in which affected parties jockey with each other and with the agency for influence and advantage. The traditional rulemaking process encourages parties not to share information and to see the agency as the enemy. As a result, rules are delayed, their quality is often poor, and (because they lack legitimacy) implementation is often difficult. Harter argues that reg‐neg acknowledges conflict but attempts to resolve it through face‐to‐face negotiations.

Clearly, it is not feasible or wise to conduct such negotiations on all rules. For example, whenever conflict is very high and consensus unlikely, reg‐neg can waste time, resources, and effort. Nonetheless, when applicable, reg‐neg provides a different model not only for rule development but for how interest groups can participate. Still, researchers examining reg‐neg have come to some different conclusions regarding its ability to develop rules and enhance broader participation. Cary Coglianese (1997), for example, examined the issues of timeliness and litigation experience of rules developed using negotiation, two areas often suggested as the benefits of using reg‐neg. Proponents argue that these can expedite rulemaking and reduce challenges of rules promulgated in court. Coglianese, however, found that reg‐neg fared poorly on both counts. He also has questioned the soundness of a process that may compromise the constitutional functions of government by sharing regulatory (p. 607) authority that Congress has delegated solely to public agencies and that elevates consensus above other, more fundamental values (e.g., protecting public health and safety).

Similarly, Laura Langbein and Kerwin's (2000) study of reg‐neg, sponsored by the Administrative Conference of the United States, examined rules developed using reg‐neg and compared them with roughly equivalent rules developed using conventional techniques. They, however, arrived at more positive conclusions. Focusing on the quality of the experience of the participants in both processes and the perceived quality of the results, they found that reg‐neg fared quite well with the participants involved. Participants gave high marks for the quality of information reg‐neg generated and the amount they learned and reported. Significantly for our argument, however, private participants felt that their influence on the final rule was greater than in conventional rulemaking. In a follow‐up study, Langbein (2002) also found that negotiated rules tended to be more responsive to those interests than conventional rulemaking. Still, Langbein and Jody Freeman (2000) also argue that reg‐neg may yield what they call a “legitimacy benefit.”

Toward an Agenda for Future Research

The purpose of this chapter has been to provide an overview of the role of interest groups in bureaucratic decision making. Using the unfortunate paucity of empirical research on this topic to illustrate our argument, we have made the case that interest groups are present in every phase of bureaucratic life and that their influence is pervasive and profound. Especially profound has been the role of business and professional associations at each stage of the rulemaking process. Premised on prior research, there is little doubt that interest group involvement in the development of rules is deep and influential. As scholars, we also find little, if any, evidence to suggest that the role of interest groups in agency rulemaking will wane in the foreseeable future.

Yet a great deal more empirical work needs to be done before definitive determinations of the relative influence of interest groups—corporate, professional, or otherwise—are possible. While other chapters in this handbook have been able to identify some especially promising areas of future research, the research page is so blank on the role of interest groups in agency rulemaking processes that we are tempted to say, “Do something, do anything,” and our understanding will advance appreciably! We will resist that temptation, however, by first urging the further development of research protocols investigating each of the questions raised in the prior research that we have summarized.

We urge that any research effort be animated by several principles. For starters, researchers should resist blanket assessments of interest group influence on agency (p. 608) rulemaking. Focus should continue on the different aspects of the rulemaking process. At a minimum, studies should better illuminate the paths open to interest groups at each stage, the factors that determine their ability to influence agency decisions, and the appropriate metrics to gauge their power.

Relatedly, future studies should focus on classes or types of rules, looking for within‐group and across‐group generalizations about those factors. Early studies suggest clearly that access, information, and persistence are keys to success in rulemaking and that these are prime characteristics of interest groups as a class of organizations. It is possible, however, that these may vary across different types of rules. Possible typologies include, but are not limited to, policy type (distributive, redistributive, and regulatory); policy substance (e.g., environmental policy); policy clientele (e.g., small business versus large business); and policy domain (domestic, foreign, and hybrid).

Future research should also examine the effect of a variety of contextual factors on the relative impact of different interest groups within and across these stages and types of rulemaking. These might include, for example, variations in partisan control of the White House and Congress, in socioeconomic context, and in levels of socioeconomic impact. Along with this focus, researchers should assess the conditions under which corporate interests are more or less likely to try to exert influence within and across various policy types and stages of the rulemaking process, as well as when they are more or less likely to succeed or fail in that effort. Relatedly, a striking need exists for research that goes beyond inferences about relative influence from numbers of comments and changes in comments to assessing perceptions of actors about the extent to which—and why or why not—they either influenced or were not able to influence agency rulemaking. Finally, researchers would do well to assess interinstitutional effects on interest group influence in agency rulemaking (e.g., the role and impact of OMB and prior court decisions) and how these affect the strategies and tactics of affected parties.

Regardless of the ultimate research agenda pursued, however, the intensive study of interest group influence on agency rulemaking is important and long overdue. Moreover, it is especially timely given the regulatory agenda contemplated by the Obama administration. No matter how well couched in market rhetoric they may be, many of the president's signature agenda items involve extensive rulemaking on the part of federal agencies (e.g., curbing excesses in the financial industry, ensuring universal healthcare, and implementing cap‐and‐trade programs). To the extent that key industries have opted to support variations on these initiatives to head off even stricter government regulation, the need for assessing their impact on corporate and professional interests grows apace (see Durant in Chapter 7 for such an argument). We are certain already that presidential initiatives like these have unleashed a bevy of lobbyists on Congress. With regulatory discretion shifting to agency rulemaking, the same can be expected as politics follows that discretion.

Consequently, the study of interest group influence in agency rulemaking should remain an important and fascinating topic in the years and decades ahead. There remains much about the past in this regard that is still sketchy, and the future (p. 609) portends not just more of the same but new and different rulemaking challenges (e.g., in the regulation of biotechnologies and nanotechnologies). Public administration, political science, public policy, and public management scholars should be at the forefront of research on these issues in the years to come or else abdicate to other fields the study of who gets what, when, and why in contemporary America.


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