Agency, Activism, and the Expansion of the Regulatory State

Federal regulatory agencies are created by Congress to mitigate particular social problems, such as pollution (the Environmental Protection Agency), discrimination (the Equal Employment Opportunity Commission), and anticompetitive conduct (the Federal Trade Commission). These agencies have the delegated authority to issue Rules and Regulations that have the force of law within their respective domains, constrained by the oversight of the President and Congress, and by litigation through the Courts. Many view the extent of such oversight as inefficiently lax, with the result that “missionary” bureaucracies successfully overregulate and inefficiently extend the span of their authority. After describing these concerns, I develop a model of agency bias that extends my earlier work with CanicePrendergast and Topel (1993,1996) to a regulatory framework. In the model, activist bureaucrats who seek greater regulation are attracted to an agency's mission. Their biases are constrained by the courts, where agency rules and regulations can be challenged, and by oversight from other branches of government. In equilibrium, agencies gain from the exercise of bias even though all parties know it occurs and seek to mitigate its costs. The public sector is overregulated on average. Overregulation is largest when the social problem is least harmful, and when oversight of agency actions is weak. Stronger oversight would reduce the distortionary effect of agency biases. More precise legislative language would provide clearer guidance to the court system, which would reduce deference to biased agency opinions in the formation of regulations.