Regulatory capture
In politics, regulatory capture (also called agency capture) is a form of corruption of authority that occurs when a political entity, policymaker, or regulator is co-opted to serve the commercial, ideological, or political interests of a minor constituency, such as a particular geographic area, industry, profession, or ideological group.[1][2]
When regulatory capture occurs, a special interest is prioritized over the general interests of the public, leading to a net loss for society. The theory of
Theory
For
... as a rule, regulation is acquired by the industry and is designed and operated primarily for its benefit... We propose the general hypothesis: every industry or occupation that has enough political power to utilize the state will seek to control entry. In addition, the regulatory policy will often be so fashioned as to retard the rate of growth of new firms.
George Stigler, The Theory of Economic Regulation (1971)[5]
Regulatory capture theory is a core focus of the branch of public choice referred to as the economics of regulation; economists in this specialty are critical of conceptualizations of governmental regulatory intervention as being motivated to protect public good. Often cited articles include Bernstein (1955), Huntington (1952), Laffont & Tirole (1991), and Levine & Forrence (1990). The theory of regulatory capture is associated with Nobel laureate economist George Stigler,[6] one of its major developers.[7]
Likelihood of regulatory capture is a risk to which an agency is exposed by its very nature.[8] This suggests that a regulator should be protected from outside influence as much as possible. Alternatively, it may be better to not create a given agency at all. A captured regulator is often worse than no regulation, because it wields the authority of government. However, increased transparency of the agency may mitigate the effects of capture. Recent evidence suggests that, even in mature democracies with high levels of transparency and media freedom, more extensive and complex regulatory environments are associated with higher levels of corruption (including regulatory capture).[9]
Stigler framed the problem of regulatory capture as "the problem of discovering when and why an industry is able to use the state for its purposes". He focuses on whole industries. But, it is never a whole industry which is ‘capturing’ its regulators, but only the big companies which, using the tool of the revolving door, ‘highjack’ the regulator by offering high salaries. Brezis and Cariolle (2019)[10] has shown that the connected firms are always the big firms. Indeed, the top 5 financial companies concentrate around 80% of the stock of revolving door movements and regulatory capture. This leads to inequality of influence among firms in the same sector.
It should also be noted that regulatory capture in developed country is not anymore related to corruption and illegal behavior, but to abuse of power.[11]
Relationship with federalism
There is substantial academic literature suggesting that smaller government units are easier for small, concentrated industries to capture than large ones. For example, a group of states or provinces with a large timber industry might have their legislature and/or their delegation to the national legislature captured by lumber companies. These states or provinces then become the voice of the industry, even to the point of blocking national policies that would be preferred by the majority across the whole country. Moore and Giovinazzo (2012) call this "distortion gap".[12]
The opposite is possible. Very large and powerful industries (e.g., energy, banking, weapon system construction) can capture national governments, and then use that power to block policies at the national, state or provincial level that the voters may want,[13] although even local interests can thwart national priorities.[14]
Economic rationale
Regulatory capture has an economic basis: vested interests in an industry have the greatest financial stake in regulations affecting them, and so are more likely to try to influence the regulator than relatively dispersed individual consumers,[4] each with little incentive. When regulators form expert bodies to examine policy, these invariably feature current or former industry members, or at the very least, individuals with lives and contacts in the industry. Capture is also facilitated where consumers or taxpayers have a poorer understanding than businesses of underlying issues.[15]
Jon Hanson and his co-authors argue that the phenomenon extends beyond political agencies and organizations. Businesses have an incentive to control anything that has power over them, including the media, academia and popular culture, and will try to capture them too. This is called "deep capture".[16]
Regulatory public interest is based on market failure and welfare economics. It holds that regulation is the response of the government to public needs. Its purpose is to make up for market failures, improve the efficiency of resource allocation, and maximize social welfare. Posner states that the public interest theory contains the assumption that the market is fragile, and that if left unchecked, it will tend to be unfair and inefficient, and government regulation is a costless and effective way to meet the needs of social justice and efficiency. Mimik states that government regulation is a public administration policy that focuses on private behavior. It is a rule drawn from the public interest. Irving and Brouhingan state that regulation is a way of obeying public needs and weakening the risk of market operations. They also expressed the view that regulation reflects the public interest.
Development
The review of the United States' history of regulation at the end of the 19th century,[clarification needed] especially the regulation of railway tariffs by the Interstate Commerce Commission (ICC) in 1887, revealed that regulations and market failures are not co-relevant. At least until the 1960s, regulation was developed in the direction of favoring producers, and regulation increased the profits of manufacturers within the industry. In potentially competitive industries such as trucking and taxis, regulations allow higher prices and prevent entrants. In monopoly industries such as electric power generation, there is evidence that regulation has little effect on prices, so the industry can earn excess profits. Evidence shows that regulation is beneficial to producers.[citation needed]
These observations led to the emergence and development of regulatory capture theory. Contrary to regulatory public interest theory, this holds that the provision of regulation adapts to the industry's needs, that is, both the legislator and regulator are controlled and captured by the industry. The basic view of the theory is that the regulator gets captured no matter how the regulatory scheme is designed. The implication is that regulation increases the industry's profits rather than the social welfare.[citation needed]
This was essentially a purely capture theory in the early days, that is, the regulators and legislators were captured and controlled by the industry. Later regulatory models, such as those by Stigler, Pelzmann, or Becker, follow the regulatory capture theory in the eyes of Posner (1974) and others. All these models reflect that regulators and legislators are trying to maximize private, not public, interests. They use "private interest" theory to explain the origin and purpose of regulation. Aton (1986) argues that Stigler's theoretical logic is clearer and more central than the previous "capture theory" hypothesis, but it is difficult to distinguish between the two.[citation needed]
Regulatory capture theory has a specific meaning, that is, an experience statement that regulations are beneficial for producers in real life. So it is essentially not a true regulatory theory. Although the analysis results are similar to the Stigler model, the methods are completely different. Stigler used standard economic analysis methods to analyze the regulation behavior, then created a new regulatory theory – regulatory economic theory. Of course, different divisions depend on the criteria for division, and they essentially depend on the researchers' different understanding of specific concepts.[citation needed]
Justice Douglas' dissent in Sierra Club v. Morton (1972) describes concern that regulators become too favorable with their regulated industries.[citation needed]
Types
There are two basic types of regulatory capture:[17][18]
- Materialist capture, also called financial capture, in which the captured regulator's motive is based on its material self-interest. This can result from bribery, revolving doors, political donations, or the regulator's desire to maintain its government funding. These forms of capture often amount to political corruption.
- Non-materialist capture, also called cognitive capture or cultural capture, in which the regulator begins to think like the regulated industry. This can result from interest groups lobbying the industry. Highly specialized technical industries can pose a risk of cultural capture because the regulating agency typically needs to employ experts in the regulated area, and the pool of such experts typically consists largely of existing or former employees from the regulated industry.
Another distinction can be made between capture retained by big firms and by small firms.[19] While Stigler mainly referred[20] to large firms capturing regulators by bartering their vast resources (materialist capture), small firms are more prone to retain non-materialist capture via a special underdog rhetoric.[19]
Examples
Europe
Aberfan disaster
On 21 October 1966, a tip containing spoil and tailings from Merthyr Vale Colliery slipped after a period of heavy rain, killing 116 children and 28 adults in the Welsh village of Aberfan. In contravention of the National Coal Board's procedures, the tip was partly based on ground from which water springs were known to emerge. After three weeks of rain the tip became saturated and 140,000 cubic yards (110,000 m3) of spoil and tailings slipped down the side of the hill, engulfing Pantglas Junior School and a row of houses.
Iain McLean and Martin Johnes, in a 2000 study of the Aberfan disaster, observed that Her Majesty's Inspectorate of Mines went largely unchallenged by the tribunal, although the two consider that the organisation failed in their duty, falling in line with the interests of the National Coal Board whose activities they were supposed to be overseeing.[21]
Motorcyclists' protective clothing standards
With the advent of the European standard for motorcyclists' protective clothing (EN 17092), Bennetts and Motor Cycle News asserted that "the testing standards now used to certify motorcycle riding kit have reduced protection levels by as much as 90%" because of regulatory capture as industry representatives accounted for half the standards committee members including its chair, noting "Few will be aware of the intense opposition [to higher safety standards] from within the industry."[22] However, there is a shortage of academic research into regulatory capture regarding motorcyclists' PPE standards.
United States
Bureau of Ocean Energy Management, Regulation and Enforcement
In the aftermath of the 2010
The three-stage reorganization, including the name change to BOEMRE, was part of a re-organization by
MMS had allowed BP and dozens of other companies to drill in the Gulf of Mexico without first attaining permits to assess threats to endangered species, as required by law.[30] BP and other companies were also given a blanket exemption (categorical exclusion)[31] from having to provide environmental impact statements.[30] The National Oceanic and Atmospheric Administration (NOAA) issued strong warnings about the risks posed by such drilling and in a 2009 letter, accused MMS of understating the likelihood and potential consequences of a major spill in the Gulf of Mexico.[30] The letter further accused MMS of highlighting the safety of offshore drilling while understating the risks and impact of spills and playing down the fact that spills had been increasing.[30] Both current and former MMS staff scientists said their reports were overruled and altered if they found high risk of accident or environmental impact.[30] Kieran Suckling, director of the Center for Biological Diversity, said, "MMS has given up any pretense of regulating the offshore oil industry. The agency seems to think its mission is to help the oil industry evade environmental laws".[30]
After the Deepwater accident occurred, Salazar said he would delay granting any further drilling permits. Three weeks later, at least five more permits had been issued by the minerals agency.[30] In March 2011, BOEMRE began issuing more offshore drilling permits in the Gulf of Mexico.[32] Michael Bromwich, head of BOEMRE, said he was disturbed by the speed at which some oil and gas companies were shrugging off Deepwater Horizon as "a complete aberration, a perfect storm, one in a million", but would nonetheless soon be granting more permits to drill for oil and gas in the gulf.[32]
Federal Aviation Administration
Since the
As of 2023, aviation in the United States, the field in which the FAA is tasked to regulate, has had an unparalleled safety streak. Because of this, U.S. regulatory policy in this sector is regarded as one of the best in world.[35] With an estimated 29,000 flights daily, the United States hasn't had a major commercial aviation disaster since Colgan Air Flight 3407 in February 2009.
On July 22, 2008, a bill was unanimously approved in the Democrat-controlled
Prior to the deregulation of the US air industry, the Civil Aeronautics Board served to maintain an oligopoly of US airlines.[41][42]
In a June 2010 article on regulatory capture, the FAA was cited as an example of "old-style" regulatory capture, "in which the airline industry openly dictates to its regulators its governing rules, arranging for not only beneficial regulation but placing key people to head these regulators".[43]
That the FAA was a victim of regulatory capture was one focus of a
Federal Communications Commission
Legal scholars have pointed to the possibility that federal agencies such as the
In July 2019, congresswomen Elizabeth Warren and Pramila Jayapal issued a letter (citing a report by the Project On Government Oversight) showing concerns for the composition of the FCC's Communications Security, Reliability and Interoperability Council (CSRIC), questioning whether it could effectively serve the public interest if the majority of its members were representatives of the private sector. They wrote that "having the FCC's policy-making process rely on input from individuals employed by, or affiliated with, the corporations that it is tasked with overseeing is the very definition of regulatory capture".[49]
Food and Drug Administration
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Federal Reserve Bank of New York
The
During the crisis, several major banks that were on the verge of collapse were rescued via the
Interstate Commerce Commission
Historians, political scientists, and economists have often used the Interstate Commerce Commission (ICC), a now-defunct federal regulatory body in the United States, as a classic example of regulatory capture. The creation of the ICC was the result of widespread and longstanding anti-railroad agitation. Richard Olney, a prominent railroad lawyer, was asked by a railroad president if he could do something to get rid of the ICC.[53] Olney, who later was appointed Attorney General in the Grover Cleveland administration, replied in an 1892 letter:
The Commission… is, or can be made, of great use to the railroads. It satisfies the popular clamor for a government supervision of the railroads, at the same time that supervision is almost entirely nominal. Further, the older such a commission gets to be, the more inclined it will be found to take the business and railroad view of things.… The part of wisdom is not to destroy the Commission, but to utilize it.[53]
While the
Nuclear Regulatory Commission
According to Frank N. von Hippel, despite the 1979 Three Mile Island accident in Pennsylvania, the Nuclear Regulatory Commission (NRC) has often been too timid in ensuring that America's 104 commercial reactors are operated safely:
Nuclear power is a textbook example of the problem of "regulatory capture" – in which an industry gains control of an agency meant to regulate it. Regulatory capture can be countered only by vigorous public scrutiny and Congressional oversight, but in the 32 years since Three Mile Island, interest in nuclear regulation has declined precipitously.[57]
Then-candidate Barack Obama said in 2007 that the five-member NRC had become "captive of the industries that it regulates" and Joe Biden indicated he had absolutely no confidence in the agency.[58]
The NRC has given a license to "every single reactor requesting one", according to
Although the exception, there have been instances of a revolving door. Jeffrey Merrifield, who was on the NRC from 1997 to 2008 and was appointed by presidents Clinton and Bush, left the NRC to take an executive position at The Shaw Group,[59] which has a nuclear division regulated by the NRC.[note 1]
The NRC Inspector General's report detailed that Merrifield had voted twice on matters involving companies he had contacted about job prospects. In addition, the report noted that Merrifield called a senior executive at another utility to request that he encourage other companies to return calls about his job search. The report also noted that Merrifield failed to report certain reimbursed travel expenses for himself and his family.[63][64]
One of those interviewed by the NRC Inspector General was Dale Klein, Chairman of the NRC at the time. Klein commented that "Merrifield generally was a staunch advocate of his chosen positions and was reluctant to change his mind." The interview notes also indicated that "other Commissioners also commented that Merrifield was excessively touting his accomplishments within [a] task force, but Klein indicated that this self-promoting tendency by Merrifield was not unique to this issue."[65]
Although the NRC referred the matter to the Justice Department for civil action and to the U.S. Attorney's office for criminal action, neither office pursued the matter.[66] The same U.S. Attorney's Office declined all 20 similar referrals for prosecution during the period from 2004 to 2008.[67]
A year-long Associated Press (AP) investigation showed that the NRC, working with the industry, has relaxed regulations so that aging reactors can remain in operation.[68] The AP found that wear and tear of plants, such as clogged lines, cracked parts, leaky seals, rust and other deterioration resulted in 26 alerts about emerging safety problems and may have been a factor in 113 of the 226 alerts issued by the NRC between 2005 and June 2011.[68] The NRC repeatedly granted the industry permission to delay repairs and problems often grew worse before they were fixed.[68][note 2]
However, a paper by Stanford University economics professors John B. Taylor and Frank A. Wolak compared the financial services and nuclear industries. While acknowledging both are susceptible in principle to regulatory capture, they concluded regulatory failure – including through regulatory capture – has been much more of a problem in the financial industry and even suggested the financial industry create an analog to the Institute of Nuclear Power Operations to reduce regulatory risk.[69]
Office of the Comptroller of the Currency
The
Securities and Exchange Commission
The
Similarly in the case of the Allen Stanford Ponzi scheme, there were repeated warnings of fraud from both inside and outside the SEC for more than a decade.[73] But the agency did not stop the fraud until 2009, after the Madoff scandal became public in 2008.
The SEC has been found by the
The list of officials who have left the SEC for highly lucrative jobs in the private sector and who sometimes have returned to the SEC includes
Reporter
Federal Trade Commission
The decision known as In re Amway Corp., and popularly called "Amway '79", made the FTC a captive regulator of the nascent multi-level marketing industry. The situation came to a head in December 2012, when hedge fund Pershing Square Capital management announced a $1-billion short position against the company, and evidently expected the FTC to act, which, to date, it has not. From a forensic accounting standpoint, there is no difference between a Ponzi-scheme like the Madoff scandal, and a pyramid scheme, except that in the latter the money is laundered through product sales, not investment.[88] The press has widely reported on why the FTC won't act, e.g. Forbes[89] though legal opinion has been very supportive in some quarters, such as William K. Black, who was instrumental in bringing thousands of criminal prosecutions in the S&L scandal, which was also rife with problems of regulatory capture.[90]
District of Columbia Taxicab Commission
The District of Columbia Taxicab Commission has been criticized[91] for being beholden to taxi companies and drivers rather than ensuring that the district has access to a "safe, comfortable, efficient and affordable taxicab experience in well-equipped vehicles".[92]
Washington State Liquor and Cannabis Board and I-502
Some commentators[
Canada
Canadian Radio-television and Telecommunications Commission
In August 2009, the
On February 2, 2011, CRTC chair Konrad von Finckenstein testified before the House of Commons Standing Committee on Industry, Science and Technology to defend the agency's decision. Critic Steve Anderson said, "The CRTC's stubbornness in the face of a mass public outcry demonstrates the strength of the Big Telecom lobby's influence. While government officials have recognized the need to protect citizens' communications interests, the CRTC has made it clear that their priorities lie elsewhere".[96]
Japan
In Japan, the line may be blurred between the goal of solving a problem and the different goal of making it look as if the problem is being addressed.[97]
Nuclear and Industrial Safety Agency
Despite warnings about its safety, Japanese regulators from the
Nuclear opponent
Both the ministry and the agency have ties with nuclear plant operators, such as
Yoshihiro Kinugasa helped write Japan's nuclear safety rules, later conducted inspections and still in another position at another date, served on a licensing panel, signing off on inspections.[102]
Ministry of Health, Labour and Welfare (MHLW)
In 1996, the
Although warned about HIV contamination of blood products imported from the U.S., the ministry abruptly changed its position on heated and unheated blood products from the U.S., protecting the
No senior officials were indicted and only one lower-level manager was indicted and convicted.
Philippines
Tobacco control in the Philippines is largely vested in the Inter-Agency Committee on Tobacco (IACT) under Republic Act No. 9211 (Tobacco Regulation Act of 2003).[105] The IACT's membership includes pro-tobacco groups in the Department of Agriculture and National Tobacco Administration,[106] as well as "a representative from the Tobacco Industry to be nominated by the legitimate and recognized associations of the industry", the Philippine Tobacco Institute (composed of the largest local cigarette producers and distributors).[105] In a 2015 Philippine Supreme Court case, the Court ruled that the IACT as the "exclusive authority" in regulating various aspects tobacco control including access restrictions and tobacco advertisement, promotion, and sponsorships. In this case, the Department of Health, which is the primary technical agency for disease control and prevention, was held to be without authority to create tobacco control regulations unless the IACT delegates this function.[107] The IACT's organization also limits the Philippines' enforcement of the World Health Organization Framework Convention on Tobacco Control.[108]
International
World Trade Organization
The academic Thomas Alured Faunce has argued the World Trade Organization non-violation nullification of benefits claims, particularly when inserted in bilateral trade agreements, can facilitate intense lobbying by industry which can result in effective regulatory capture of large areas of governmental policy.[109]
Other examples
McClean and Johnes argued that the sinking of the Titanic and its investigation illustrate an early example of regulatory failure and regulatory capture of the Board of Trade and Parliament by the shipping industry.[110]
See also
- Campaign finance
- Concentrated benefits and diffuse costs
- Corporate welfare
- Crony capitalism
- Gaming the system
- Inverted totalitarianism
- Iron triangle (US politics)
- Occupational licensing
- Regulator shopping
- Regulatory capitalism
- Rent seeking
- State capture
- North American groups promoting transparency
- MAPLight.org, tracks money and politics in the U.S.
- Sunlight Foundation, promotes government transparency and accountability
Notes
- U.S. senator now promotes nuclear energy. Over the course of his 20 years in government, he received $1.25 million in political contributions connected with the energy sector. From 2000 to 2010, the nuclear industry and people who work in it, contributed $4.6 million to members of Congress, in addition to the $54 million spent by electric utilities, trade groups and other supporters to hire lobbyists, including some former members of Congress. (See Lichtblau 2011)
- ^ According to the AP, of the United States' 104 operating nuclear power plants, 82 are over 25 years old, the NRC has re-licensed 66 for 20 additional years and another 16 renewal applications are under review.
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Further reading
- Bernstein, M. H. (1955). Regulating Business by Independent Commission. Princeton University Press. ISBN 0691650381.
- Glover, P. 2007. "A Crime Not a Crisis: Why Health Insurance Costs So Much"'.
- Huntington, Samuel P. (1952). "The Marasmus of the ICC: The Commission, the Railroads, and the Public Interest". The Yale Law Journal. 61 (4): 467–509. JSTOR 793586.
- Laffont, Jean-Jacques; Tirole, Jean (1991). "The Politics of Government Decision-Making: A Theory of Regulatory Capture". The Quarterly Journal of Economics. 106 (4): 1089–1127. JSTOR 2937958.
- Lee, Timothy B. (3 August 2006). "Opinion | Entangling the Web". The New York Times.
- Levine, Michael E.; Forrence, Jennifer L. (1990). "Regulatory Capture, Public Interest, and the Public Agenda: Toward a Synthesis". Journal of Law, Economics, & Organization. 6: 167–198. JSTOR 764987.
- Greg McMahon, Regulatory Capture: Causes and Effects (PDF) International Institute for Public Ethics. Paper given October 4, 2002 conference, Brisbane, Australia.
- Mintz, Joel A. (2005). "Has Industry Captured The EPA?: Appraising Marver Bernstein's Captive Agency Theory After Fifty Years". Fordham Environmental Law Review. 17 (1): 1–36. JSTOR 44175806.
- Nakamura, K. (April 2002). "Resistance and Co-optation: the Japanese Federation of the Deaf and its Relations with State Power". Social Science Japan Journal. 5 (1): 17–35. .
- Stigler, George J. (1971). "The Theory of Economic Regulation". The Bell Journal of Economics and Management Science. 2 (1): 3–21. S2CID 18393956.
- Schlink, F.J. (1933). 100,000,000 Guinea Pigs.