De facto independence after delegation: A fuzzy‐set analysis

The phenomenon of delegating public authority from elected politicians (or ministries headed by elected politicians) to formally independent regulatory agencies (RAs) is becoming increasingly widespread. This paper examines the relation between formal independence, as prescribed in the constitutions of agencies, and de facto independence. Toward this end, it conceptualizes and assesses de facto independence of RAs, and discusses organizational, institutional, and political explanations for divergence from formal independence. The complex relations between de facto and formal independence are examined with a cross‐national, cross‐sectoral comparison of 16 Western European RAs using fuzzy‐set analysis. The results show that formal independence is neither a necessary nor a sufficient condition for explaining variations in the de facto independence of agencies. Other factors, such as the lifecycle of agencies, veto players, and European networks of agencies, have a decisive impact.     

Agencies’ formal independence and credible commitment in the Latin American regulatory state: A comparative analysis of 8 countries and 13 sectors

This article tests functional and institutional explanations for the different levels of formal independence of regulatory agencies in Latin America. The analysis is grounded in an original database of the formal independence level of 104 regulators in 8 countries and 13 regulatory sectors. The results challenge a central claim of the credible commitment hypothesis as they indicate that privatization is not a significant determinant of agency independence nor are utility regulators more likely to be independent than other economic regulators. Veto players are positively correlated with formal independence, indicating that in developing countries they operate together as credibility‐enhancing mechanisms, rather than as functional equivalents, as previous studies on developed countries have shown. Democratization is positively correlated with formal independence, whereas trade opening and vulnerability to international pressures has no significant impact. Hence, this article enhances the understanding of the delegation of regulatory powers to formally independent agencies in developing countries.     

The Politics of 'Eurocratic' Structure and the New European Agencies

The establishment of agencies at the European level is one of the most notable recent developments in EU regulatory policy. This article examines how politics has shaped the design of EU regulatory agencies. Building on the American politics literature on delegation, the article explains how principal-agent concerns and political compromise have influenced agency design in the EU context; shows how conflicts between the EU's primary legislative actors - the Council and the Parliament - and its primary executive actor - the Commission - have influenced the design of new bureaucratic agencies; and discusses how the growing power of the European Parliament as a political principal has changed the politics of agency design.     

Delegation of Clinical Authority,Administrative Culture and Policy Adoption: A Comparative Analysis

Numerous countries have adopted reforms that allow medical personnel other than physicians to engage in tasks that traditionally were exclusively performed by physicians. This policy is controversial because it challenges the medical profession’s traditional boundaries. This study is an exercise in comparative policy research based on the experience of 18 Organisation for Economic Co-operation and Development countries. It evaluates the contribution of different structural factors – socioeconomic, cultural, and institutional – to policy adoption. Based on both quantitative analysis and an examination of how delegation unfolded in Israel, the role of administrative culture is highlighted: a category that combines cultural legacies and institutional properties in explaining policy adoption. It is argued that because, in entrepreneurial administrative cultures, administrators are more likely to possess a managerial mindset than in Rechtsstaat cultures, and also have more institutional leeway for action, delegation is more likely to be adopted in the former.     

Two spheres of regulation: Balancing social and economic goals

Independent regulatory authorities hold comprehensive policy mandates that cover both economic and social goals. They take on various roles in market regulation, competition policy, consumer protection, and labor inspection. This article questions whether policymakers are driven by different rationales when delegating the realization of social, as opposed to economic goals, and analyzes how regulators accommodate their various roles in practice. The conceptual framework links the literature on delegation and organizational models. Comparative analysis of postal policy in France, Germany, and the United Kingdom covers a serious area of potential conflict between social and economic regulation. Variation in delegation points to the relevance of instrumental considerations, but also to the politics of institutional arrangements. Variation in regulatory practice shows that organizational models make a difference in accommodating conflict. The article makes a strong case that social and economic regulation need to be addressed as two distinct, yet interacting spheres. © 2017 John Wiley & Sons Australia, Ltd     

Politicians,regulators, and regulatory governance: The neglected sides of the story

We offer a series of reflective insights about the state and direction of studies related to the politics of regulation. Notably we argue that the field is characterized by persisting divisions between Americanists and Europeanists. Largely focused on the actions taken by political principals, the former regularly report a substantial politicization of regulatory behavior. Reflecting on recent developments in US politics however, we show that political influence could be overestimated in the United States. Symmetrically, this same influence could be underestimated by Europeanists, who for now have largely focused on regulators and agencies. This is notably suggested by a discussion of recent development in European politics, as revealed by contributions systematically measuring agency politicization in Western European democracies. On this basis, we identify some promising research questions and agendas for future studies on the politics of regulation.     

Transnational delegation in global environmental governance: When do non‐state actors govern?

Non‐state actors – including firms, non‐governmental organizations, and networks – are now a permanent fixture in environmental politics. However, we know surprisingly little about when states choose to delegate to non‐state actors through multilateral treaties. This paper provides an historical picture, tracing patterns of delegation to non‐state agents in a random sample of multilateral environmental agreements from 1902 to 2002. I introduce a new unit of analysis – the policy function – to understand what non‐state actors actually do as agents. I find that analyses of delegation are sensitive to the unit of analysis; patterns of delegation at the treaty level are very different from those at the level of individual policy functions. While overall the decision to delegate to non‐state actors – what I term transnational delegation – is rare, it has grown over time. Complex treaties, those with secretariats, and those focused on the management of nature are more apt to delegate to non‐state actors. Non‐state agents fill a small, but growing role in multilateral environmental treaties.     

Are regulatory agencies independent in practice? Evidence from board members in Spain

Are the board members of regulatory agencies (regulators), taken as a particular cluster within the public sphere, independent of elected politicians and tenured bureaucrats? How can we assess their independence in practice, beyond formal rules? To address these questions, this paper delves into two key dimensions: board members' social connections and their security of tenure in office. Firstly, we focus on regulators' identity as policy adjudicators and examine their political and administrative relations. In doing so, we expect to understand better how regulators' social and political situations may influence their behavior. Secondly, we assess their political vulnerability through political cycles in order to measure their de facto independence over time. Additionally, variations in these two dimensions are compared with respect to the effect of different de jure appointment rules. We contrast these expectations with the empirical evaluation of board members of regulatory agencies in Spain (1979–2010). Thus, we confirm that regulators who have an administrative profile are more vulnerable to political changes than those with political ties, while appointment rules have an influence on their political vulnerability.     

State of the Field

Although scholars of West European politics have long debated whether the region's highly institutionalised party systems were becoming de‐aligned and electorally unstable, the political fallout from the post‐2008 financial crisis has lent a new sense of urgency to the debate. The threats posed to party systems by economic crises are hardly unique to Europe, however. The Latin American experience with the debt crisis of the 1980s and 1990s suggests that party system upheaval was not simply a function of retrospective economic voting during the period of crisis. It was also attributable to programmatically de‐aligning policy responses to crises – namely the ‘bait‐and‐switch’ imposition of austerity and adjustment measures by labour‐based, left‐leaning parties that were traditional champions of statist and redistributive policies. Such patterns of reform made it difficult for party systems to channel societal resistance to market orthodoxy in the post‐adjustment era, setting the stage for convulsive ‘reactive sequences’ when such resistance arose outside and against mainstream parties through varied forms of social and electoral protest, typically on the left flank. This article explores the political fallout from the European and Latin American economic crises from a comparative perspective, arguing that it is essential to think beyond the short‐term political dynamics of crisis management to consider the longer‐term institutional legacies and fragilities of the different political alignments forged around crisis‐induced policy reforms.     

Credibility,Complexity and Uncertainty: Explaining the Institutional Independence of 29 EU Agencies

The delegation of policy-making tasks to EU agencies and their remarkable growth in number over the past two decades mark a striking new development in the EU's institutional make-up. While most of the nascent literature on the EU's ‘agencification’ addresses the conditions for agency creation and the implications of agency governance from the perspective of democratic accountability, there is a lack of empirical research systematically scrutinising the institutional structure and degree of formal-institutional independence of these agencies. This article offers a comprehensive empirical assessment and measure of the variation in institutional independence displayed by the entire set of 29 EU agencies operating under the EU's three pillars and tests hypotheses explaining variation in formal independence among agencies.     

Do parties matter in delegation? Partisan preferences and the creation of regulatory agencies in Europe

The ideological orientation of parties in government has not been prominently featured in explaining the rise of regulatory agencies. This paper argues that theories based on political uncertainty and credible commitment can yield meaningful predictions regarding the relationship between government preferences and the establishment of regulatory agencies, when ideological orientation is linked with notions of party competence and issue ownership. The empirical section tests three such hypotheses with data on the establishment of 110 regulatory agencies in 20 European democracies between 1980 and 2009, thus providing one of the most comprehensive cross‐national analyses of agency creation to date. The results show that ideologically extreme cabinets are more likely to establish regulatory agencies and that right‐wing governments create more agencies in the economic than in the social domain. These findings partly qualify the view on the scarce relevance of government preferences in explaining the rise of the agency model in regulation and that the emulation mechanism of the diffusion process is the dominant force behind agencification.     

The Political Foundations of the Eurocracy

This article explores the politics behind the design of EU regulatory institutions. The EU has established an extensive ‘Eurocracy’ outside of the Commission hierarchy, including over 30 European agencies and a number of networks of national regulatory authorities (NRAs). The article examines the politics of institutional choice in the EU, explaining why EU policy-makers create agencies in some policy areas, while opting for looser regulatory networks in others. It shows that the design of EU regulatory institutions – ‘the Eurocracy’ – is driven not by functional imperatives but by political considerations related to distributional conflict and the influence of supranational actors.     

Political interference and regulatory resilience in Brazil

Governments face a fundamental tradeoff between regulatory independence and control. Attempts of interference have the effect of reducing the system's level of commitment and credibility. On the other hand, an administration runs the risk that the autonomy delegated to regulators might be used to pursue outcomes that may harm their interests. This tradeoff is particularly relevant when there is an alternation of power with the arrival of a new political elite with different preferences. This paper uses data from a 2016 survey on regulatory governance applied to Brazilian regulatory agencies. This data is compared to a similar survey performed in 2005. The new survey results turn out to be surprisingly similar to those of a decade earlier, suggesting strong resilience of regulatory agencies despite significant attempts at political interference by powerful presidents. The factors explaining the resilience of regulatory governance in Brazil lie in its broader institutional endowment, which moderates the effects of executive interference.     

Decoupling trends: Drivers of agency independence in telecommunications: An analysis of high and middle-income countries

Global diffusion of regulatory reforms in telecommunications has prevailed in many countries, engendering major institutional changes and entailing the establishment and/or reform of regulatory agencies. Although the triggers and timing of such agentification processes have been more or less similar, agency independence displays significant cross-country variation. Seeking to explain such variation based on a sample incorporating middle-income countries (MICs), this paper examines the impact of political-institutional settings in which the agencies operate, in addition to the impact of economic parameters. Regression analysis reveals that political rights appear as the central parameter, while their impact is more robust in MICs than in advanced countries. The results underscore considerable cross-national variation in regulatory governance, along with a noteworthy decoupling between MICs and advanced countries. Concurring with the regulatory regionalism perspective, the paper delineates distinct regional clusters, albeit remaining agnostic about the determinants of such clusters.     

Shall the law set them free? The formal and actual independence of regulatory agencies

Regulation by independent agencies, rather than ministries, is believed to result in better policy outcomes. Yet this belief requires one to accept a complex causal chain leading from formal independence to actual independence from politics, to policy decisions, and, ultimately, to policy outcomes. In this study, we analyze the link between the formal and actual independence of regulatory agencies in Western Europe. New data on the appointment of chief executives of these agencies is used to create a proxy for the actual independence of agencies from politics. The analysis demonstrates that formal independence is an important determinant of actual independence, but the rule of law and the number of veto players matter as well.     

Understanding the rise of the regulatory state of the South*

This paper, and the special issue it introduces, explores whether, and how, the rise of the regulatory state of the South, and its implications for processes of governance, are distinct from cases in the North. With the exception of a small but growing body of work on Latin America, most work on the regulatory state deals with the US or Europe, or takes a relatively undifferentiated “legal transplant” approach to the developing world. We use the term “the South” to invoke shared histories of many countries, rather than as a geographic delimiter, even while acknowledging continued and growing diversity among these countries, particularly in their engagement with globalization. We suggest that three aspects of this common context are important in characterizing the rise of the regulatory state of the South. The first contextual element is the presence of powerful external pressures, especially from international financial institutions, to adopt the institutional innovation of regulatory agencies in infrastructure sectors. The result is often an incomplete engagement with and insufficient embedding of regulatory agencies within local political and institutional context. A second is the greater intensity of redistributive politics in settings where infrastructure services are of extremely poor quality and often non‐existent. The resultant politics of distribution draws in other actors, such as the courts and civil society; regulation is too important to be left to the regulators. The third theme is that of limited state capacity, which we suggest has both “thin” and “thick” dimensions. Thin state capacity issues include prosaic concerns of budget, personnel and training; thick issues address the growing pressures on the state to manage multiple forms of engagement with diverse stakeholders in order to balance competing concerns of growth, efficiency and redistribution. These three themes provide a framework for this special issue, and for the case studies that follow. We focus on regulatory agencies in infrastructure sectors (water, electricity and telecoms) as a particular expression of the regulatory state, though we acknowledge that the two are by no means synonymous. The case studies are drawn from India, Colombia, Brazil, and the Philippines, and engage with one or more of these contextual elements. The intent is to draw out common themes that characterize a “regulatory state of the South,” while remaining sensitive to the variations in level of economic development and political institutional contexts within “the South.”     

Regulatory Agencies—The Challenges of Balancing Agency Autonomy and Political Control

In this article we focus on the dynamic interplay between increase in autonomy of regulatory agencies and political control of those agencies. The general research issues are the weak empirical foundations of regulatory reforms, the complex trade‐off between political control and agency autonomy, the dual process of deregulation and reregulation, the problems of role‐specialization and coordination, and the questions of “smart practice” in regulatory policy and practice. The theoretical basis is agency theories and a broad institutional approach that blend national political strategies, historical‐cultural context, and external pressures to understand regulatory agencies and regulatory reform. This approach is contrasted with a practitioner model of agencies. Empirically the article is based on regulatory reform in Norway, giving a brief introduction to the reform and agency context followed by an analysis of the radical regulatory reform policy introduced recently by the current Norwegian government. We illustrate how regulatory reforms and agencies work in practice by focusing on two specific cases on homeland security and telecommunications.     

The Usage of Scientific Knowledge by Independent Regulatory Agencies

The normative justification for delegation to independent regulatory agencies (IRAs) is that they operate by using technical analysis and expertise rather than political considerations in their decision‐making processes. Although delegation has been discussed as a design principle, systematic evidence on the conditions under which IRAs make use of scientific knowledge and how is still scarce. Scientific knowledge can be used to achieve instrumental learning, but also to seek legitimacy from the policy environment or to improve the agency's standing in the political games with the principal. This article will suggest how comparative empirical research can be usefully organized, by enriching delegation and organizational theories with the insights of the literature on knowledge utilization. Drawing on the methodological device of explanatory typologies, the article aims at shedding light on different types of knowledge utilization and the scope conditions that lead to a certain use of knowledge by IRAs.     

National de-delegation in multi-level settings: Independent regulatory agencies in Europe

National politicians in Europe have created independent regulatory agencies (IRAs) with significant powers over markets such as communications and energy. After delegation, they have engaged in institutional politicization of IRAs and undertaken numerous attempted or actual de-delegations. Yet overall de-delegation over the period 2000–2020 has been limited, as many de-delegations have been abandoned, temporary or reversed, and also counterbalanced by extensions of IRA powers. The article examines different explanations for this pattern. It looks especially at Europeanization, which has operated through normative and particularly coercive mechanisms. EU coercion has involved threats of legal action, monitoring and enforcement of existing EU legal requirements, and EU legislation expanding IRA powers and protection. IRAs are more vulnerable to de-delegation than trustee non-majoritarian institutions because their position can be altered with simple legislative majorities. Yet even for such agents, the ability of national politicians to reverse delegation is constrained by multi-level institutional settings.     

Torn in translation: An ethnographic study of regulatory decision‐making in Turkey

There is much literature on the diffusion and translation of regulatory agencies from the perspective of formal political models. Ethnographic research of regulation process is, however, much less common. This is even more evident with regards to the study of regulatory agencies established outside the “West.” This article analyzes the translation process of the Turkish tobacco regulatory agency, which was established in 2002, under commitments made to the International Monetary Fund and the World Bank. Based on an ethnographic analysis of two controversial cases, the study shows that tobacco regulation was being shaped and pursued in an environment of ambivalence and uncertainty. The study concludes that the decision‐making process of the agency is context‐specific and constructed within the perpetual struggles and interactions among the actors involved in this process.