Notice & Comment

Making the Invisible Visible, by Emily Bremer

Rachel Potter’s new book, Bending the Rules, offers an intriguing new look into how agencies strategically use procedural discretion in rulemaking to achieve a desired outcome in the face of opposition. The tools agencies have to engage in this “procedural politicking” (as Potter calls it) arise within the “white space” that is created by the various legal requirements that define the rulemaking process. Potter’s work demonstrates that, although rulemaking is often (but not uncontroversially) described as a process “ossified” by an overabundance of procedural requirements, there is still ample latitude for agencies to engage in procedural politicking. Potter examines three toolboxes agencies use for this purpose: writing, consultation, and timing. Her findings are interesting and important. In this post, however, I’ll suggest  that her book also offers some (perhaps unintended) insight into how a legal regime may—or may not—create the conditions necessary for empirical study of the operation of government institutions.

One of the remarkable things about Potter’s work is that her subject of study—procedural politicking—is typically invisible. While the formal boundaries of the rulemaking process are visible and well studied, what goes on within those boundaries is committed to agency discretion. Here, bureaucrats use their procedural expertise and make decisions that are mostly outside of public view. The occasional anecdote or case study may suggest that bureaucrats use their discretion and expertise to play politics. But based on such isolated, partial information, an outsider can never quite be sure that procedural politicking is afoot. As Potter acknowledges, procedure is viewed as mandatory, neutral, boring. Agencies can always offer a mundane explanation for a procedural choice and most observers are impatient with procedural niceties and eager to move on to more substantive matters. Procedural politicking is invisible because agency procedural choices are generally unobservable and often ignored.

Potter’s carefully designed study and unique dataset allow her to cast needed light on procedural politicking government-wide and over time. The study period is nearly two decades long, running from 1995 to 2014. Potter’s empirical analysis is based on a dataset she created—the Regulatory Proposals Dataset. This dataset “contains information on nearly eleven thousand proposed rules” issued during the study period “from 135 bureaus (housed within 15 Cabinet departments) and 15 independent agencies.” (Page 203) Using a suite of painstakingly created variables, Potter persuasively shows that hundreds of agencies across government engage in procedural politicking.

Potter’s work makes the invisible visible—but this feat is possible only because the legal regime that defines the rulemaking process is mandatory, stable, and cross-cutting.

First, rulemaking is mandatory in the sense that it is subject to legal requirements that are created and enforced by institutions outside of individual agencies. Indeed, the rulemaking process is defined by the various legal requirements created by statute (principally the Administrative Procedure Act (APA)), executive order (especially Executive Order 12,866), and judicial case law. These externally imposed constraints define the boundaries of agency procedural discretion in rulemaking. It is only within the resulting “white space” that agencies can engage in procedural politicking. This narrows the range of options available to bureaucrats. In other words, the mandatory requirements of rulemaking create the toolboxes that Potter identifies and studies.

Second, the rulemaking process is stable. Potter’s study period is one of “relative stasis in the regulatory environment,” a time during which “the rulemaking process changed very little and there was a shared understanding of what agencies can and should do.” (Page 194) This stability offers confidence that the agencies’ procedural toolboxes remained essentially the same over the course of the study period. After all, as noted above, rulemaking’s legal regime defines those toolboxes. Significant changes in rulemaking requirements, particularly if frequent, would make procedural politicking more resistant to empirical evaluation.

Third, rulemaking requirements are cross-cutting. They apply uniformly to all agencies across the government. This facilitates Potter’s study of how a large and extremely diverse population uses the same procedural tools. The hundreds of agencies included in Potter’s study differ from one another in a myriad of ways—in terms of size, structure, substance. But the cross-cutting nature of rulemaking’s legal regime ensures that the same toolboxes are available to these otherwise very different agencies. If each agency was subject to its own, unique rulemaking requirements, then each agency would also have its own, unique set of tools for procedural politicking. Thus, the cross-cutting nature of rulemaking requirements is also necessary for Potter to empirically evaluate how very different agencies use the same procedural tools.

These three characteristics of the rulemaking process are interrelated—they are also essential to Potter’s work. Remove any one of them and it would become difficult or impossible empirically evaluate how bureaucrats engage in procedural politicking in rulemaking. To put it another way, the legal regime that defines the rulemaking process creates the conditions necessary for Potter to make the system-wide practice of procedural politicking visible.

Adjudication offers a striking counterexample. In adjudication, there are few externally imposed procedural requirements: agencies are rarely required to adjudicate under the APA, due process imposes extremely modest minimum procedures, Congress routinely creates agency-specific adjudication procedures, and agencies have wide latitude to tailor adjudication procedures.The consequence of this substantial absence of externally imposed, mandatory requirements is that adjudication procedures are neither stable nor cross-cutting. They change frequently and are often confined to a single agency. As I argue in an article forthcoming in the Wisconsin Law Review, the reality is that adjudication—unlike rulemaking—is ruled by a norm of exceptionalism.

For these reasons, it would be difficult if not impossible to study procedural politicking in adjudication the way that Potter has studied it in rulemaking. That’s a shame. Potter’s analysis should inform future discussions of rulemaking reform because it illuminates the invisible decisions that bureaucrats make within the spaces created by formal rulemaking requirements. In adjudication, it is difficult even to study the formal requirements. Reading Potter’s work with adjudication in mind, one can’t help but think that adjudication’s white spaces will always remain black boxes.

This post is part of a symposium reviewing Bending the Rules: Procedural Politicking in the Bureaucracy, a new book by Dr. Rachel A. Potter, Assistant Professor of Politics at the University of Virginia. All of the posts can be read here.