The Psychology of Accountability and Political Review of Agency Rules
Seidenfeld, Mark, Duke Law Journal
Over the past three decades, mechanisms for reviewing agency rulemaking have multiplied. The traditional mechanism of oversight by congressional committees (1) has been supplemented by, inter alia, rigorous judicial review of agency reasons for adopting rules, (2) a mandate that the agency perform cost-benefit analyses of major rules--analyses which are in turn scrutinized by the Office of Management and Budget (3)--and most recently fast-track review by Congress. (4) This plethora of oversight mechanisms naturally raises several related questions: Are all of these avenues for reviewing agency rulemaking necessary? What benefits accrue from these various review mechanisms? What mix of review mechanisms is likely to encourage agencies to adopt rules that best serve the underlying purposes of the statutes that the agencies are authorized to administer?
In a companion article to this Essay, (5) I use psychologists' understanding of accountability to analyze judicial review's potential to improve the quality of agency staff decisionmaking in formulating rules. That article concludes that the hard look version of judicial review, (6) currently applied by the courts, encourages agencies to take greater care when formulating rules, which in turn decreases the likelihood that the rulemaking process will reflect psychological decisionmaking biases. (7) Judicial review, however, also has some undesirable consequences: it imposes significant burdens on agency information gathering and analysis, (8) which increases the time and cost of rulemaking, and can even dissuade agencies from using informal rulemaking when adopting policies that significantly affect the public. (9) Hence, the conclusion that judicial review of agency rules encourages careful decisionmaking does not justify judicial review if one can derive the same benefit--decreasing psychological decisionmaking biases--from other forms of oversight that do not have the same degree of undesirable consequences. In other words, to know whether hard look review is worthwhile, one must analyze the likely impact of alternative oversight mechanisms to determine whether they provide similar benefits with fewer unintended consequences. In addition, if one concludes that alternative mechanisms cannot substitute for judicial review, then one must face the question of whether use of such alternatives is justified. By illuminating the impact of oversight mechanisms other than judicial review, the literature on the psychology of accountability can help one discern whether such mechanisms provide independent benefits that warrant maintaining political review, and what form such review should take.
In this Essay, I use the psychology literature on accountability to evaluate the likely impact of the various forms of political review on the quality of agency decisionmaking. I begin by briefly reviewing the basic findings of psychological research regarding the impact of accountability on decisionmaking. I then apply those findings to the three mechanisms of political review mentioned above--OMB scrutiny of cost-benefit analyses that accompany rules, congressional committee oversight of rulemaking, and congressional fast-track review. Finally, I discuss the implications of those findings, addressing in particular the contention of some scholars that judicial review is unnecessary in light of political review, and opining on the desirability of each mechanism for political review. I conclude that, unlike judicial review, none of the mechanisms for political oversight that I analyze promises to improve the quality of agency staff formulation of most rules. These mechanisms, nonetheless, encourage agencies to develop rules that accord with the preferences of influential political actors, such as the president, congressional leaders, and chairs of committees responsible for oversight of agency programs. Whether one views such encouragement as a justification for political review depends, in large measure, on the theoretical model of the administrative state to which one subscribes. …