For the Balkinization symposium on Susan Rose-Ackerman, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021).
Mariana Mota Prado
In Democracy and Executive Power, Susan Rose-Ackerman provides a detailed analysis of delegation of
rulemaking powers to executive officials. While it is not possible for
legislatures to oversee all the complexities of the mammoth state apparatus
that governs our societies today, she argues that the lack of accountability of
these policymaking processes within the executive branch is an issue that needs
to be addressed. Rose-Ackerman analyzes four countries (France, Germany, US,
and UK) to ask what institutional arrangements secure (or could secure) an
accountable process of administrative rulemaking. The careful selection not
only reflect some of the countries that Rose-Ackerman has been studying for
decades, but it also serves a very important methodological purpose: it allows
for a comparison of two types of political systems, parliamentary (UK and
Germany) and presidential (US and France); and of two types of legal systems, common
law (UK and US) and civil law (Germany and France).
Based on this comparative analysis of executive rulemaking, she makes a positive (descriptive) and a normative claim. The positive claim is a political economy story: parliamentary systems lack the incentives that exist in presidential systems for legislatures to keep the executive in check. The normative claim is that the political dimensions of executive rulemaking need to be accountable. Yet, executive rulemaking is not purely political: these processes also involve and often require expertise. For this reason, Rose-Ackerman pushes for “more constructive forms of political accountability that also recognize the importance of technocratic analysis” (p. 146). Her proposal points to transparency, public consultation and reason giving as the three pillars that can address the democratic deficit in executive rulemaking in many countries today.
Despite being centered around these four countries, Rose-Ackerman’s claim is broader in scope, as she announces in the introduction: “the difficulties that have arisen in my case-study countries are repeated throughout the world and can provide insights that may be applicable elsewhere” (p. 9). In line with this ambition, in the concluding chapter (Chapter 8) she discusses how the book’s “perspective is relevant elsewhere, especially to countries making a transition to democracy and to middle-income countries whose governments are seeking a stronger system of public law.” (p. 244). This blogpost engages with this broader ambition, both to commend the book’s careful and constructive analysis in this regard, but also to pinpoint a few issues that seem to merit further attention.
1.
Policy diffusion and the
role of international actors
As an experienced comparativist, Rose-Ackerman is aware of the complexities of transplanting legal arrangements that seem to work in one country (such as the notice and comment process adopted in the United States) to different socio-political-legal environments. Indeed, in Chapter 8 she addresses these challenges heads on. For instance, many countries lack a strong civil society, i.e. individuals and organizations that are able and willing to participate in consultative processes. Citing Hungary and Poland as examples, Rose-Ackerman acknowledges that in such societies “even if the law did require consultation, those provisions may not have had much impact” (p. 257). The solution, according to her, is to experiment with different forms of participation. More specifically, as she discusses extensively in Chapter 6, rather than looking at the American Administrative Procedure Act (APA) as a model, countries should take some positive features of the United States’ experience as a guide (e.g. adopt open-ended opportunities for individuals and organizations to express their views, rather than excluding certain stakeholders from the process). In the particular case of middle-income countries, she suggests that horizontal learning may play a role. For instance, countries with an authoritarian past and weak civil societies may look for successful experiments in other transitional democracies (such as Brazil’s participatory budgeting) for potentially promising ideas to test in their own jurisdictions (p. 257).
While experimentation and horizontal learning are embraced by academics in the development community, in practice many countries still find themselves being pressured to adopt blueprints imposed by multilateral development agencies. In the 1990s, the process of transplanting U.S.- style independent regulatory agencies around the world as part of a package of neoliberal economic reforms, known as the Washington Consensus, brought a wealth of empirical evidence about the pitfalls of legal transplants. More recently, Regulatory Impact Assessment (RIA) has had the same fate. As Rose-Ackerman describes in Chapter 5, “Cost-benefit analysis, and especially, regulatory impact assessment (RIA) has spread throughout the world, including to all my case study countries.” (p. 138) This has happened despite the fact that both CBAs and RIAs have serious limitations carefully outlined in the book. Therefore, when the European Commission and the OECD supported RIAs to promote “better regulation” (and pushed the UK, Germany and France to implement them), according to Rose-Ackerman, they set “in motion a bandwagon that needs to be subject to critical scrutiny before it acquires the status of conventional wisdom” (p. 141).
International actors have, therefore, influenced the diffusion of RIAs across the world. This raises an interesting set of political economy question: why so much enthusiasm for RIAs in multilateral and supranational institutions? Could these actors help promote public consultation as well? How does the international actors’ influence interact with the domestic system of incentives (e.g. the presidential versus parliamentary systems) mapped by Rose-Ackerman in her descriptive analysis?
From a normative standpoint, Rose-Ackerman provides a comprehensive and rather compelling set of reasons not to embrace RIAs as blueprints (or any kind of one size fits all arrangement). However, this type of academic critique does not seem to stop multilateral and supranational institutions from proposing legal transplants to regulatory agencies around the world with complete disregard for the context and sector in which these agencies are operating. The concern with uncritical support for blueprints is particularly pressing for middle-income countries. For example, due to pressure from OECD and helped by loans of the Inter-American Development Bank, Brazil has embraced RIAs since 2007 through the PRO-REG (Programme for the Strengthening of the Institutional Capacity for Regulatory Management). In a regulatory environment characterized by “weak institutional leadership, low efficiency, and limited technical capability” it is no surprise that RIAs have not thrived.
Rose-Ackerman has already asked whether international actors can play a constructive role in anti-corruption policy. There seems to be room to ask the same question in the diffusion process of administrative law mechanisms, such as RIAs and public consultations.
2.
Public consultation in
hyper-presidential systems
Legal transplants also raise concerns about unintended consequences. In Chapter 8, citing her previous co-authored work on the topic, Rose-Ackerman acknowledges the difficulties of keeping the President accountable in hyper-presidentialist systems (which are, as the name suggests, political regimes in which there is a high concentration of power in the President). She also highlights that such difficulties are compounded when strong Presidents are combined with weak legislatures that may be amenable to patronage or corruption, as appears to be the case in Argentina, Brazil and the Philippines. Rose-Ackerman acknowledges that in such systems there is very little incentive for either the executive or the legislature to implement accountability mechanisms, or to enforce them (pp. 246-252). While Rose-Ackerman fully recognizes the potential challenges to make public consultations effective in hyper-presidential systems (and discusses the possible strategies to overcome them), she seems to pay little attention to the fact that consultation processes may not only fail to work but can also do damage in these systems by further entrenching unaccountable executive power.
How? The President can use executive orders/decrees to regulate the details of policymaking norms and consultation processes to advance their own agenda. Again, Brazil provides a concrete example. In 2019, the Brazilian Congress passed a statute requiring all regulatory agencies to conduct RIAs and public consultations. This seems very much in line with Rose-Ackerman’s proposal, until one takes a closer look at what followed. In 2020, the President enacted an executive order (Decreto 10.411/20) under the guise of regulating the RIAs required by the statute. The executive order advanced the President’s agenda to reduce “red tape” by not requiring RIAs if agencies are reducing obligations and requirements with the aim to decrease regulatory costs (art. 4, VII). This seems to be a strategic use of RIAs: adoption to satisfy international pressure (see previous section), but with exemptions to satisfy Presidential preferences.
Regarding public consultation, curiously, the executive order leaves the process largely in the hands of the regulatory agencies. This may seem puzzling if one assumes that the President could have strategically designed the consultation process so as to enhance their control over independent regulators. However, the level of Presidential influence over Brazilian regulatory agencies is already significant, despite the fact that their institutional design mimics the one of American independent regulatory agencies (due to a series of mechanisms that I have discussed here). Moreover, the Congressional statute allows the Ministry of Economy to create an independent RIA report, which can be considered another form of Presidential control over independent regulators (since the Brazilian Minister of the Economy is appointed by the President and serves at pleasure).
Rose-Ackerman devotes an entire chapter (Chapter 4) to discuss the ambiguous place of independent regulators in executive rulemaking. On the one hand, independence can reduce political accountability because these agencies are not subordinated to the president. On the other hand, insulation from political influence is touted as a mechanism to guarantee that decisions are primarily guided by expertise, not by short-term electoral interests. Rose-Ackerman argues that “public hearings and consultation, along with published reasons are especially important in bodies with some degree of independence” (p. 119). While a consultation process imposed by the legislature and enforced by courts can indeed be salutary to keep these agencies in check, a process designed and controlled by the President can undermine the (sometimes already fragile) institutional guarantees of independence of these regulators. Perhaps we could rely on courts to curtail Presidential attempts to control regulatory agencies with unjustified demands, as we saw in the United States. However, this requires an independent and well-equipped judiciary, which is not always present in middle income economies.
In summary, in hyper-presidential systems, the President’s rulemaking powers are so vast that the executive branch can “take over” the process of public consultation by manipulating its design and implementation, not only to reduce its effectiveness as an accountability mechanism, but also to further augment the scope of Presidential power.
3.
Expertise versus politics
in democratic backsliding
Consultation processes can also damage already fragile democracies. Many countries have recently experienced a process of democratic backsliding, where elected leaders use legal tools to undermine the rule of law and the democratic system incrementally and gradually. Kim Scheppele has written on this blog about the topic, pointing to leaders who use formalist interpretations of statutory provisions to advance these attacks on democracy, while claiming to be acting within the limits of the law. Scheppele calls this autocratic legalism.
This phenomenon presents yet another set of challenges to public consultation, as elected leaders can use public consultations processes to undermine the technical legitimacy of rulemaking, in the name of “true” democracy.
Again, Brazil provides an illustrative example. On December 16, 2021, a Brazilian regulatory agency, ANVISA (the counterpart of the United State’s Food and Drug Administration) approved the use of the Pfizer vaccines for children aged 5 to 11 years old. The President – who has taken an anti-vaccine stance throughout the pandemic – publicly criticized the decision, suggesting that there was no scientific basis for the authorization and that the agency was favouring undisclosed interests. The President’s statements were followed by death threats to ANVISA commissioners who had made the decision. The government then announced that the Minister of Health was going to start a public consultation on the vaccination of children: citizens were invited to express their opinions online from December 23, 2021 to January 2, 2022. While the Minister does not have the power to revoke the approval of the vaccines, it has the power to decide whether to include the vaccine in the national vaccination program (i.e. make it available in Brazil’s public health care system). The Minister could also decide to impose regulatory obstacles that would make it hard to get the vaccine, especially for poor and less educated families (such as requiring complex paperwork as proof of parents’ consent, and/or requiring a medical prescription as a condition to obtain the vaccine).
This is a textbook example of autocratic
legalism. The executive branch is not only legally authorized to conduct public
consultations, but also claims that they are valuable tools to guarantee the
accountability of executive rulemaking. Yet, the Minister of Health has not
resorted to this tool at any point during the pandemic. As Adami
and Pereira Neto point out, this public consultation was only announced
after the
Brazilian Supreme Court asked the government for an explanation as to why they
were considering not including the vaccine in the national vaccination program.
The public consultation therefore helped the government delay providing an
explanation to the Supreme Court and postpone implementing the policy. When
faced with questions about the purpose of the consultation, the Minister of
Health responded: “This
is a tool of democracy, it widens the discussion on the topic and it will bring
more ease for parents so they can take their children to immunize against
COVID-19.”
This example shows that the risks of adopting public consultation provisions in fragile democracies are not simply a sheer lack of compliance with the law. There is a greater risk of governments using public consultation processes to challenge the legitimacy of technocratic decisions, in the name of democracy. Again, courts may be able to resist this kind of abusive statutory interpretation, if they are willing and able to engage in a discussion about the types of executive decisions that may be in accordance with the letter, but not with the spirit of the law. This, in turn, requires not only an independent and functional judiciary, but also a rather sophisticated one.
Conclusion
The three points raised in this blogpost all seem to converge to one pressing question: should countries that lack robust institutions (strong legislatures, independent and sophisticated judiciaries and technically competent regulatory agencies) adopt public consultation mechanisms? On the one hand, as Rose-Ackerman argues, public consultation could increase transparency and perhaps create opportunities for further reforms. On the other hand, as the examples presented earlier suggest, public consultation could at best further entrench dysfunctional institutional arrangements, and at worst help accelerate ongoing processes of institutional (especially democratic) decay. This creates a paradox: countries that could benefit the most from public consultation are perhaps the ones least able to make good use of them.
While my concrete examples come primarily from Brazil (which is the system I am most familiar with), similarly to Rose-Ackerman I believe these insights may be relevant to other jurisdictions as well, especially middle-income countries and those facing democratic backsliding. While these questions are outside the scope of the book, they are largely a response to Rose-Ackerman’s plea in the introduction: “I urge others to take up my invitation to engage in broader comparative work that takes seriously both democratic values and the distinctive features of each political, economic and social system” (p. 5). The fact that the book inspired the questions raised here is a testament to the quality and insightfulness of the comparative analysis offered by Rose-Ackerman, who continues instigating and inspiring comparative administrative law scholars around the world.
Mariana Mota Prado is Professor of Law
and William C. Graham Chair in International Law and Development at the
University of Toronto, Canada. Email: mariana.prado@utoronto.ca.