Notice & Comment

Of Independence, Sovereignty, Accountability, and Other Sleights of Hand

Administrative law doctrine and scholarship has traditionally treated agencies as unitary entities and focused upon the proper allocation of authority among agencies, the President, Congress, and the courts. Recently, however, scholars have begun to unlock the “black box” of agency design to identify and evaluate the ways in which administrative law rules allocate decisionmaking authority among agency officials. Just as viewing a corporation as a network of relationships among stakeholders reframed debates about corporate law, viewing an agency as a decisionmaking space in which bureaucrats, politicians, regulated parties, regulatory beneficiaries, and, of course, lawyers grapple for policymaking authority promises to change the debate over allocating authority in the administrative state.

Peter Conti-Brown’s impressive new book, The Power and Independence of the Federal Reserve, mines this vein to unearth “a broader, more explanatory context” of Fed policy making. (6) As he describes it, “the Fed’s policy-making space [is] a balance between democratic accountability, technocratic expertise, and the influence of bankers’ own value judgments.” (7) By unlocking the black box of the Fed, Conti-Brown aims to take down the standard account of Fed independence. In this standard account, the Fed’s independence from political control frees it to apply technical skill to combat inflation. This “sleight of hand” (6) becomes apparent when we carefully sift through the Fed’s history and examine its policy-making space, or so Conti-Brown argues.

Count me convinced that Conti-Brown’s shown the standard account to be misleadingly simplistic. His book’s full of rich and nuanced stories that prove the point. Buy the book, read it, and then read it again.

What follows is a sympathetic critique. I’d like to suggest that Conti-Brown doesn’t carry his attack on received verities far enough. In particular, he takes “independence” apart, only to leave “sovereignty” and “accountability” intact. Yet his stories left me questioning all three concepts.

Popular “sovereignty” and “public accountability” do heavy lifting when Conti-Brown critiques Fed governance and proposes reforms. Let’s begin where the book ends (at 266): “Given the extraordinary power inside the Fed, it may be true that we live in a ‘republic of central bankers.’ But if so, it is a democratic republic. The people are still sovereign.” (Emphasis mine.) If anything, the previous 265 pages of the book suggest that the ideal of popular sovereignty, much like that of Fed independence, is a “sleight of hand that reveals only a narrow slice” (6) of the realities of policy making.

Unlock the black box of the Fed and you see complex networks of different personalities and institutions. There are many political inputs into this network. Some come from elected officials, others from bankers. (260) Throughout we read about Fed Chairs (Ch. 2), the Fed Board of Governors (Ch. 3), Fed economists and lawyers (Ch. 4), the Federal Reserve Banks (Ch. 5), the President (Ch. 8), Congress (Ch. 9), private bankers (Ch. 10), and, again and again, the importance of personality to Fed policy making. There’s occasional discussion of populist politicians (200-05) and popular politics, but even the history of the Fed’s three foundings ends with a lesson on the “relationship between law and personality.” (38) I’m convinced that “law matters” and that “personalities matter, too” in how the Fed makes policy. (39) I’m not convinced, however, that Conti-Brown has told a story in which “[t]he people are still sovereign.” Instead, his story seems to support Edward Rubin’s observation that “[w]hatever its value as political mythology,” the doctrine of popular sovereignty “is without functional significance.” Edward L. Rubin, Beyond Camelot: Rethinking Politics and Law for the Modern State 224 (2007).

Of course, maybe I’m missing the point. Perhaps the book’s references to popular sovereignty sound solely in a normative, not a descriptive, register. In other words, we should reform the Fed so that the people will still be sovereign. Which leads me to Conti-Brown’s discussion of accountability.

In the book’s conclusion, Conti-Brown encourages readers “to challenge the prevailing ideas about independence, governance, and accountability that even the most knowledgeable of Fed watchers may misunderstand or take for granted.” (268-69) When it comes to accountability, however, Conti-Brown often tells a familiar story that is less fine-grained than it should be.

The ideal of “public accountability” underwrites Conti-Brown’s proposed reforms. As he puts it in a crucial paragraph in Chapter 5: “The mechanism in a representative democracy for controlling national policy is political. If someone in the government makes a decision that a citizen finds absurd, that citizen can raise the political costs for his representatives in keeping that official in place. If push comes to shove, the citizen can even make the appointments of certain kinds of politicians a campaign issue.” (120) In its critique of the “unconstitutional Federal Reserve Banks” (103) and its proposed reforms, the book leans on the formal “requirements of . . . public accountability at the appointments level.” (107) In particular, Chapter 11 argues for greater transparency as to who is playing within the Fed’s policy making space, and what games they’re playing. (241). And it cashes that transparency out in a call for inserting politics “where politics belong,” namely, “at the appointments level.” (242)

This is a serious idea about political accountability that has constitutional pedigree. I don’t aim to trash it. But I do want to ask whether Conti-Brown’s given us reasons to think that accountability works in much more complex ways than his discussion of reforms seems to suggest.

One of the book’s highlights is Chapter 8’s nuanced discussion of the games presidents play within the Fed’s policy making space. In particular, Conti-Brown identifies four ways that “Presidents engage in personal, strategic behavior” vis-à-vis the Fed. (181) Perhaps most interesting is his description of “a charm offensive whereby a president tailors his policy to suit the views of a politically popular Fed chair.” (181) He calls this “Fed control of the president,” and offers the Clinton-Greenspan years as an example. (195) Conti-Brown suggests that “chair domination” (250) is a political failure, but is that necessarily true when a president defers to a “politically popular Fed chair” (181)?

The point of these questions isn’t to prove that Conti-Brown’s wrong to be troubled by chair domination. Instead, the point is to suggest that that the idea of accountability, much like the idea of independence, needs to be unpacked to have functional significance. When it comes to administrative policymaking, for example, Mark Seidenfeld has distinguished majoritarian accountability, interest group accountability, and representative accountability. Mark Seidenfeld, The Role of Politics in a Deliberative Model of the Administrative State, 81 Geo. Wash. L. Rev. 1397, 1416-20 (2013). And both Seidenfeld and Rubin have argued that there are strong reasons to doubt the promise of majoritarian accountability, which Conti-Brown seems to want to secure through the appointments process. See 1416-17 (pointing out that “[m]ost voters are unaware of regulatory issues” and that “voters do not seem to vote for presidential candidates based on the issues at all, but rather engage in candidate-centered politics”); Edward Rubin, The Myth of Accountability and the Anti-Administrative Impulse, 103 Mich. L. Rev. 2073, 2080 (2005) (arguing that “highly attenuated nature of electoral accountability means that it will be of limited value for the purposes that proponents of accountability have recommended”).

When “push comes to shove,” in other words, it’s not clear that the formal accountability mechanisms Conti-Brown discusses will do much to secure popular sovereignty. Unpacking the concept of accountability suggests that Conti-Brown’s right to argue that “personnel considerations [are] essential in their own right” (241). But it takes more work to get from there to the conclusion that “[t]he democracy can weigh in” (246) on Fed governance in any meaningful sense through the appointments process, much less to conclude that the concepts of popular “sovereignty” and majoritarian “accountability” advance our evaluation of the Fed’s legitimacy any more than “independence” does.

Conti-Brown has explained Fed governance in a concrete, arresting, and accessible way and challenged us to open up the black box of agency design. His careful microanalysis of the Fed suggests that when we think of accountability, we need to think not only about elections and appointments, but also about “many of the features that are central to the administrative state and that people find so unattractive about it — hierarchy, monitoring, reporting, internal rules, investigations, and job evaluations.” Rubin, Myth, supra, at 2075.

In sum, Conti-Brown’s vital book does more than undermine the ideal of independence. It also suggests the limits of the ideals of popular sovereignty and public accountability against which agency independence is typically defined. There’s more than one “sleight of hand” (6) to catch in the story of the Fed.

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