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FIGHTING POWER WITH POWER: THE ADMINISTRATIVE STATE AS A WEAPON AGAINST CONCENTRATED PRIVATE POWER

Published online by Cambridge University Press:  11 October 2021

Samuel Bagg
Samuel Bagg*
Affiliation:
Politics, University of Oxford, UK
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Abstract

Contemporary critics of the administrative state are right to highlight the dangers of vesting too much power in a centralized bureaucracy removed from popular oversight and accountability. Too often neglected in this literature, however, are the dangers of vesting too little power in a centralized state, which enables dominant groups to further expand their social and economic advantages through decentralized means. This article seeks to synthesize these concerns, understanding them as reflecting the same underlying danger of state capture. It then articulates a set of heuristics for the design of public and administrative institutions, which aim at minimizing the risks of capture from both public and private sources. By following these heuristics, it claims, we can successfully employ the administrative state as a weapon against concentrated private power, rather than allowing it to serve as a tool of dominant groups.

Keywords

bureaucracystate capturedemocracyconcentrated poweradversarialism
Type
Research Article
Information
Social Philosophy and Policy , Volume 38 , Issue 1 , Summer 2021 , pp. 220 - 243
Copyright
© 2021 Social Philosophy & Policy Foundation. Printed in the USA

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Footnotes

*

Nuffield College and the Department of Politics and International Relations, University of Oxford, [email protected]. For generous feedback on earlier drafts of this essay, and the larger project it comes from, I would like to thank Arash Abizadeh, Rob Goodman, Jacob Levy, Victor Muñiz-Fraticelli, and the other contributors to this volume—especially Dave Schmidtz, whose penetrating comments helped me identify the core message I wanted to get across.

References

1 For a similar account, see Lovett, Frank, A General Theory of Domination and Justice (Oxford: Oxford University Press, 2010)CrossRefGoogle Scholar.

2 In that sense, my account is meant to be compatible with Foucauldian conceptions of power. See Hayward, Clarissa Rile, De-Facing Power (Cambridge: Cambridge University Press, 2000)CrossRefGoogle Scholar.

3 Following Winters, Jeffrey A., Oligarchy (Cambridge; New York: Cambridge University Press, 2011)CrossRefGoogle Scholar; Korpi, Walter, Power Resources Theory and the Welfare State: A Critical Approach, ed. O’Connor, Julia Sila and Olsen, Gregg Matthew (Toronto: University of Toronto Press, 1998)Google Scholar.

4 Michaels, Jon D., Constitutional Coup: Privatization’s Threat to the American Republic (Cambridge, MA: Harvard University Press, 2017)CrossRefGoogle Scholar.

5 For compelling (yet methodologically contrasting) accounts of why, see Levy, Jacob T., Rationalism, , Pluralism, and Freedom (Oxford: Oxford University Press, 2015)Google Scholar; Aligica, Paul Dragoș, Institutional Diversity and Political Economy : The Ostroms and Beyond (Oxford: Oxford University Press, 2014)Google Scholar.

6 The “all else equal” here is intended to clarify that minimizing state capture is not the only valuable political goal.

7 Johnston, Michael, Corruption, , Contention, and Reform: The Power of Deep Democratization (Cambridge; New York: Cambridge University Press, 2013)CrossRefGoogle Scholar; Carpenter, Daniel and Moss, David A., eds., Preventing Regulatory Capture: Special Interest Influence and How to Limit It (New York: Cambridge University Press, 2013)CrossRefGoogle Scholar.

8 For related uses, see Crabtree, John and Durand, Francisco, Peru: Elite Power and Political Capture (London: Zed Books, 2017)CrossRefGoogle Scholar; Hertel-Fernandez, Alex, State Capture: How Conservative Activists, Big Businesses, and Wealthy Donors Reshaped the American States—and the Nation (New York: Oxford University Press, 2019)Google Scholar.

9 For more on this perspective, see Samuel Bagg, “Between Critical and Normative Theory: Predictive Political Theory as a Deweyan Realism,” Political Research Quarterly 69, no. 2 (2016): 233–44. See also Samuel Bagg, “Realism Against Legitimacy: For a Radical, Action-Oriented Political Realism,” Social Theory and Practice (forthcoming).

10 Again, my claim is not that minimizing capture is the only goal we ought to strive for: as will become clear in subsequent sections, this demand can be outweighed by other concerns. But given the seriousness of capture on nearly any plausible account of political normativity, it should be considered quite weighty indeed.

11 For contrasting perspectives which converge on this point, see Winters, Oligarchy; Douglass C. North, John Joseph Wallis, and Barry R. Weingast, Violence and Social Orders: A Conceptual Framework for Interpreting Recorded Human History (Cambridge: Cambridge University Press, 2009); Acemoglu, Daron and Robinson, James, Why Nations Fail: The Origins of Power, Prosperity, and Poverty (New York: Crown Business, 2012)Google Scholar.

12 See Bagg, Samuel, “The Power of the Multitude: Answering Epistemic Challenges to Democracy,” American Political Science Review 112, no. 4 (2018): 891–904 CrossRefGoogle Scholar.

13 To be clear, many radical traditions have proposed accounts of socialism that do not rely so heavily on the ideal of collective control, including “guild socialism” and certain forms of “labor republicanism.” It is therefore a mistake to equate socialism with state ownership of the means of production, as is often done by critics and advocates alike. Nevertheless, this remains a widespread and influential picture.

14 Classically, see Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974)Google Scholar.

15 Bagg, Samuel, “Beyond the Search for the Subject: An Anti-Essentialist Ontology for Liberal Democracy,” European Journal of Political Theory 20, no. 2 (2021): 208–231 CrossRefGoogle Scholar. For complementary accounts, see Hayward, De-Facing Power; Diana Coole, “Rethinking Agency: A Phenomenological Approach to Embodiment and Agentic Capacities,” Political Studies 53, no. 1 (2005): 124–42; Johanna Meehan, “Feminism and Rethinking Our Models of the Self,” Philosophy and Social Criticism 43, no. 1 (2017): 3–33.

16 See Samuel Bagg, The Dispersion of Power: A Critical Realist Theory of Democracy (forthcoming, Oxford University Press), especially Chapter Two: “Beyond Policy Responsiveness.”

17 See, for example, Achen, Christopher H. and Bartels, Larry M., Democracy for Realists: Why Elections Do Not Produce Responsive Government (Princeton, NJ: Princeton University Press, 2016)CrossRefGoogle Scholar; Bartels, Larry M., “Beyond the Running Tally: Partisan Bias in Political Perceptions,” Political Behavior 24, no. 2 (2002): 117–50CrossRefGoogle Scholar; Lodge, Milton and Taber, Charles S., The Rationalizing Voter (Cambridge; New York: Cambridge University Press, 2013)CrossRefGoogle Scholar.

18 Riker, William H., Liberalism Against Populism: A Confrontation Between the Theory of Democracy and the Theory of Social Science (San Francisco, CA: Freeman Press, 1982)Google Scholar; Weale, Albert, The Will of the People: A Modern Myth (Cambridge: Polity, 2018)Google Scholar.

19 Bartels, Larry M., Unequal Democracy: The Political Economy of the New Gilded Age (Princeton, NJ: Princeton University Press, 2009)Google Scholar; Hacker, Jacob S. and Pierson, Paul, Winner-Take-All Politics: How Washington Made the Rich Richer—and Turned Its Back on the Middle Class (New York: Simon and Schuster, 2011)Google Scholar.

20 Classically, see Pateman, Carole, Participation and Democratic Theory (Cambridge: Cambridge University Press, 1970)CrossRefGoogle Scholar; Habermas, Jürgen, Between Facts and Norms, trans. Rehg, William (Cambridge, MA: MIT Press, 1996)CrossRefGoogle Scholar; Brighouse, Harry, “Egalitarianism and Equal Availability of Political Influence,” Journal of Political Philosophy 4, no. 2 (1996): 118–41CrossRefGoogle Scholar.

21 See Bagg, The Dispersion of Power, especially Chapter Three: “Beyond Participatory Inclusion”

22 As Vlad Tarko helpfully pointed out to me, this is not the only explanation for the asymmetry between coercion and other forms of power—as he suggests, we might also look to the existence of positive spillovers from pluralism—but it does seem to me to be a powerful one.

23 Przeworski, Adam, “Minimalist Conception of Democracy: A Defense,” in Democracy’s Value, ed. Shapiro, Ian and Hacker-Cordon, Casiano (Cambridge: Cambridge University Press, 1999)Google Scholar; Przeworski, Adam, Why Bother With Elections? (Cambridge: Polity, 2018)Google Scholar.

24 Przeworski, Adam, Democracy and the Limits of Self-Government (Cambridge: Cambridge University Press, 2010)CrossRefGoogle Scholar; Achen and Bartels, Democracy for Realists; Bagg, “The Power of the Multitude.”

25 See Ostrom, Elinor, Governing the Commons: The Evolution of Institutions for Collective Action (New York: Cambridge University Press, 1990)CrossRefGoogle Scholar; Aligica, Institutional Diversity and Political Economy.

26 Kennedy, Duncan, “The Political Stakes in Merely Technical Issues of Contract Law,” European Review of Private Law 10 (2002): 7 CrossRefGoogle Scholar.

27 Cohen, Morris R., “Property and Sovereignty,” Cornell Law Quarterly 13, no. 1 (1927): 8–30 Google Scholar; Hale, Robert L., “Coercion and Distribution in a Supposedly Non-Coercive State,” Political Science Quarterly 38, no. 3 (1923): 470–94CrossRefGoogle Scholar.

28 Chapin, Christy Ford, Ensuring America’s Health (New York: Cambridge University Press, 2015)CrossRefGoogle Scholar.

29 Bob Herman, “The ACA Has Helped, Not Hurt, the Health Care Industry,” Axios, 18 October 2018, https://www.axios.com/aca-health-care-industry-insurance-hospitals-profit-856273fc-4248-4021-adf3-dfda8bc13040.html.

30 See Galvani, Alison P. et al., “Improving the Prognosis of Health Care in the USA,” The Lancet 395, no. 10223 (2020): 524–33CrossRefGoogle ScholarPubMed.

31 As Samuel DeCanio argues, this was a key factor in the rise of the American regulatory state, some of whose founders wished to keep it insulated from popular oversight. Democracy and the Origins of the American Regulatory State (New Haven: Yale University Press, 2015).

32 See Chapter Two of DeCanio’s Democracy and the Origins of the American Regulatory State (“State Autonomy in Democratic Societies”) and Chapter Two of my Dispersion of Power (“Beyond Policy Responsiveness”).

33 Michaels, Constitutional Coup.

34 I make this argument with respect to universal suffrage, for instance, in “The Power of the Multitude.”

35 Rahman, K. Sabeel, Democracy against Domination (Oxford: Oxford University Press, 2016)Google Scholar. See also Emerson, Blake, The Public’s Law: Origins and Architecture of Progressive Democracy (New York: Oxford University Press, 2019)CrossRefGoogle Scholar; Stears, Marc, Demanding Democracy: American Radicals in Search of a New Politics (Princeton, NJ: Princeton University Press, 2010)Google Scholar.

36 Rahman, Democracy against Domination, 5–11, 31–53.

37 Ibid., 8–9.

38 Ibid., 39–44.

39 Ibid., 11–16, 54–77. In this way, Rahman draws extensively from Stears, Demanding Democracy.

40 Rahman, Democracy against Domination, 116–38, 139–65, respectively.

41 Wagner, Wendy E., “Administrative Law, Filter Failure, and Information Capture,” Duke Law Journal 59, no. 7 (2010): 1321–1432 Google Scholar.

42 Kwak, James, “Cultural Capture and the Financial Crisis,” in Preventing Regulatory Capture, ed. Carpenter, Daniel and Moss, David A. (New York: Cambridge University Press, 2013)Google Scholar.

43 In addition to Rahman’s discussion (Democracy against Domination, 128-36), see Awrey, Dan, “Complexity, Innovation, and the Regulation of Modern Financial Markets,” Harvard Business Law Review 2 (2012): 235–94Google Scholar; Weber, Robert F., “Structural Regulation as Antidote to Complexity Capture,” American Business Law Journal 49, no. 3 (2012): 643–738 CrossRefGoogle Scholar; Krugman, Paul, “How Did Economists Get It so Wrong?” New York Times 2, no. 9 (2009)Google Scholar.

44 See Krippner, Greta R., Capitalizing on Crisis: The Political Origins of the Rise of Finance (Cambridge, MA: Harvard University Press, 2011)Google Scholar.

45 For more on each of these, see Pennacchi, George, “Narrow Banking,” Annual Review of Financial Economics 4, no. 1 (2012): 141–59CrossRefGoogle Scholar; Jonathan, R. Macey and James, P. Holdcroft, Jr., “Failure Is an Option: An Ersatz-Antitrust Approach to Financial Regulation,” Yale Law Journal 120 (2010): 1368–1419 Google Scholar; Paul, Sanjukta, “Recovering Labor Antimonopoly,” New Labor Forum 28, no. 3 (2019): 34–41 CrossRefGoogle Scholar; Sanjukta Paul and Sandeep Vaheesan, “Make Antitrust Democratic Again!,” The Nation, November 12, 2019, https://www.thenation.com/article/antitrust-monopoly-economy/.

46 Louis Brandeis, “The Curse of Bigness,” Harper’s Weekly, December 20, 1913. For context, see the history of the antimonopoly tradition in Matt Stoller, Goliath: The 100-Year War Between Monopoly Power and Democracy (New York: Simon and Schuster, 2019).

47 Stigler, George J., “The Theory of Economic Regulation,” The Bell Journal of Economics and Management Science 2, no. 1 (1971): 3–21 CrossRefGoogle Scholar.

48 McDonnell, Brett and Schwarcz, Daniel, “Regulatory Contrarians,” North Carolina Law Review 89, no. 5 (2011): 1629 Google Scholar.

49 For an overview, see Schwarcz, Daniel, “Preventing Capture through Consumer Empowerment Programs: Some Evidence from Insurance Regulation,” in Preventing Regulatory Capture, ed. Carpenter, Daniel and Moss, David A. (New York: Cambridge University Press, 2013), 365–98CrossRefGoogle Scholar.

50 Magill, M. Elizabeth, “Courts and Regulatory Capture,” in Preventing Regulatory Capture, ed. Carpenter, Daniel and Moss, David A. (New York: Cambridge University Press, 2013), 397–419 CrossRefGoogle Scholar.

51 Livermore, Michael and Revesz, Richard, “Can Executive Review Help Prevent Capture?,” in Preventing Regulatory Capture, ed. Carpenter, Daniel and Moss, David A. (New York: Cambridge University Press, 2013), 420–50CrossRefGoogle Scholar.

52 Supposedly popular mechanisms such as referenda, for instance, are often easier for elites to manipulate than parliamentary procedures. See Achen and Bartels, Democracy for Realists and Weale, The Will of the People.

53 Gastil, John and Wright, Erik Olin, Legislature by Lot: Transformative Designs for Deliberative Governance (London: Verso Books, 2019)Google Scholar.

54 Fishkin, James, The Voice of the People: Public Opinion and Democracy (New Haven, CT: Yale University Press, 1997)Google Scholar; Barnett, Anthony and Carty, Peter, The Athenian Option: Radical Reform for the House of Lords (Exeter ; Charlottesville, VA: Imprint Academic, 2008)Google Scholar; Sintomer, Yves, “Random Selection, Republican Self-Government, and Deliberative Democracy,” Constellations 17, no. 3 (2010): 472–87CrossRefGoogle Scholar; Bouricius, Terrill, “Democracy Through Multi-Body Sortition: Athenian Lessons for the Modern Day,” Journal of Public Deliberation 9, no. 1 (2013)Google Scholar; Fournier, Patrick et al., When Citizens Decide: Lessons from Citizen Assemblies on Electoral Reform (New York: Oxford University Press, 2011)CrossRefGoogle Scholar‥

55 Van Reybrouck, David, Against Elections: The Case for Democracy (London: Random House, 2016)Google Scholar; Vandamme, Pierre-Etienne and Verret-Hamelin, Antoine, “A Randomly Selected Chamber: Promises and Challenges,” Journal of Public Deliberation 13, no. 1 (2017)Google Scholar; Carson, Lyn and Martin, Brian, Random Selection in Politics (Westport, CT: Praeger, 1999)Google Scholar.

56 Guerrero, Alexander A., “Against Elections: The Lottocratic Alternative,” Philosophy and Public Affairs 42, no. 2 (2014): 135–78CrossRefGoogle Scholar; Dowlen, Oliver, The Political Potential of Sortition: A Study of the Random Selection of Citizens for Public Office (Exeter, UK: Imprint Academic, 2008)Google Scholar.

57 Michael Schulson and Samuel Bagg, “Give Political Power to Ordinary People,” Dissent Magazine, July 19, 2019, https://www.dissentmagazine.org/online_articles/give-political-power-to-ordinary-people-sortition. My discussion here draws on this piece, as well as broader conversations with Michael Schulson, for which I am very grateful. For more detail, see also my “Sortition as Anti-Corruption” (manuscript on file with author).

58 Lafont, Cristina, “Deliberation, Participation, and Democratic Legitimacy: Should Deliberative Mini-Publics Shape Public Policy?” Journal of Political Philosophy 23, no. 1 (2014): 40–63 CrossRefGoogle Scholar.

59 See Dowlen, The Political Potential of Sortition.

60 Lee, Caroline W., Do-It-Yourself Democracy: The Rise of the Public Engagement Industry (New York: Oxford University Press, 2014)CrossRefGoogle Scholar; Baiocchi, Gianpaolo and Ganuza, Ernesto, Popular Democracy: The Paradox of Participation (Stanford, CA: Stanford University Press, 2016)CrossRefGoogle Scholar.

61 For instance, the “public comment” feature of many inclusive governance schemes is frequently dominated by industry interests. Cuellar, Mariano-Florentino, “Rethinking Regulatory Democracy,” Administrative Law Review 57 (2005): 411–500 Google Scholar; Wagner, Wendy, Barnes, Katherine, and Peters, Lisa, “Rulemaking in the Shade: An Empirical Study of EPA’s Airr Toxic Emission Standards,” Administrative Law Review 63, no. 1 (2011): 99–158 Google Scholar; Yackee, Susan Webb, “Reconsidering Agency Capture During Regulatory Policymaking,” in Preventing Regulatory Capture, ed. Carpenter, Daniel and Moss, David A. (New York: Cambridge University Press, 2013), 292–325 CrossRefGoogle Scholar.

62 McCormick, John P., “Machiavellian Democracy: Controlling Elites with Ferocious Populism,” American Political Science Review 95, no. 2 (2001): 297–314;CrossRefGoogle Scholar McCormick, John P., Machiavellian Democracy (Cambridge: Cambridge University Press, 2011)CrossRefGoogle Scholar; Green, Jeffrey, The Shadow of Unfairness: A Plebeian Theory of Liberal Democracy (New York: Oxford University Press, 2016)CrossRefGoogle Scholar.

63 See McAlevey, Jane F., No Shortcuts: Organizing for Power in the New Gilded Age (New York: Oxford University Press, 2016)CrossRefGoogle Scholar; Stout, Jeffrey, Blessed Are the Organized: Grassroots Democracy in America (Princeton, NJ: Princeton University Press, 2012)Google Scholar.

64 For a more comprehensive account of how the state can help facilitate countervailing power, see Kate Andrias and Benjamin I. Sachs, “Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality,” Yale Law Journal 130 (2020): 546-635.