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.     

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.     

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.     

Does formal independence of regulators change? Evidence from Portuguese agencies

The rise of the regulatory state has led to the global diffusion of independent regulatory agencies (IRAs). IRAs are the result of the tension between the functional demands of regulatory capitalism and the need of politicians to control policies. Their life cycles have not been linear. Their legal statuses have changed over time, affecting their degrees of independence. This article revisits Gilardi's formal independence index, makes an in‐depth diachronic and cross‐sectorial analysis of 11 regulatory bodies in Portugal, and searches for explanations for the observed variations. It concludes that the formal independence of IRAs tends to increase due to external pressure and the need of governments to project credible commitment, but principals only grant as much independence as they see fit to satisfy those (external) demands (for change).     

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.     

The politics of de‐delegation: Regulatory (in)dependence in Turkey

This essay explores the rise and decline of regulatory independence in Turkey. Framing the ongoing process of limiting independence of these agencies as the politics of de‐delegation, it raises the question of why Turkish regulatory agencies have become subject to increasing political intervention. Contending that institutional legacies and mounting illiberal predispositions of the Turkish state facilitate the politics of de‐delegation, the essay focuses on centralization, executive discretion, and politicization of bureaucracy as the major institutional legacies. Then it briefly discusses formal and informal mechanisms of political intervention, which have impaired the independence of the regulatory agencies.     

Implementing independent regulatory agencies in Brazil: The contrasting experiences in the electricity and telecommunications sectors

This paper explores hypotheses that could explain both the creation of independent regulatory agencies (IRAs) in Brazil, and the differences in the design of the Brazilian IRAs in the telecommunications and electricity sectors. To formulate specific hypotheses that make sense of the Brazilian case, the paper critically interrogates the “weak state” hypothesis and the “political bias” hypothesis. The first argues that countries with flawed governance structures, such as Latin American countries, are less likely to establish independent regulators than European countries. The second argues that “political bias” is a determinant factor in predicting the implementation of IRAs in Latin America. The first part of the paper uses these two general hypotheses as a basis to formulate specific hypotheses to explain the creation of IRAs in Brazil. The second part of the paper formulates specific hypotheses that could explain why institutional guarantees of IRA independence are stronger in the telecommunications sector, than in the electricity sector. In particular, the paper argues in support of a revised version of the “political bias” hypothesis to explain sectoral divergence, suggesting that bureaucratic resistance to reform may be the cause for the variations observed in Brazil between regulatory reform in electricity and in telecommunications.     

The Brazilian Association of Regulatory Agencies: Integrating levels,consolidating identities in the regulatory state in the south

This article discusses a unique organization in the regulatory world, the Brazilian Association of Regulatory Agencies (ABAR), which brings together federal, state, and municipal regulatory agencies across different policy sectors. The paper argues that as a regulatory policy network, ABAR has been crucial to the professional socialization, capacity building, and institutionalization of regulators in Brazil. Moreover, it has promoted their identity as professionals and differentiated them from politicians, regulatees, and societal actors. Thus, while ABAR raises the shield of expertise to secure independence from political and social interference, it has itself become a relevant actor in the country's regulatory political dynamics, contributing as such to the strengthening of the Brazilian regulatory state.     

Domestic regulatory reform and transgovernmental networks: Brazil and China in the global competition regime

Developing countries increasingly participate in transgovernmental networks of global regulatory governance, but they do so in different ways. This article aims to provide an explanation for this variation for two of the major emerging powers in the world economy, Brazil and China, in their transition toward more active players in the global competition regime. Distinguishing between bilateral and multilateral transgovernmental networks and examining the domestic factors conditioning the transition of their national competition agencies from rule-takers to rule-promoters or rule-makers through these networks, the article makes theoretical contributions to the linkage between transgovernmentalism and the regulatory state. I argue that differing political needs and the incomplete process of regulatory state formation push domestic agencies to join transgovernmental networks, with a need for greater legitimacy steering the Brazilian regulators to multilateral networks and facilitating their transition from rule-takers to rule-promoters. The Chinese agencies' primary need for expertise rather than legitimacy, by contrast, led them to pursue technical assistance and cooperation via bilateral relationships. The Chinese approach has slowed its transition from rule-taker to rule-promoter where its norms and practices are aligned with the established powers. Such approach will further impede its transition into a global rule-maker in areas of competition law and policy where China's preferences diverge.     

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.     

Regulatory reform and governance: A survey of selected developing and transition economies

Regulation is now considered an integral instrument in developing policy toolkit to support market‐led, pro‐poor growth in developing and transition economies. Institutional environment in general and regulatory governance in particular have increasingly been viewed as a factor of competitiveness. In search for better governance, regulatory reform is critical. This article assesses regulatory reform in selected developing and transition economies by reporting the results of a survey on the application of regulatory governance policies, tools and institutions. It is found that in these countries regulatory reform has not shifted in approaches and objectives to taking a systematic view of regulatory governance and the means of promoting and enhancing it. It is suggested that, in order to improve regulatory governance, focus should be put on each of the three elements: regulatory policies, tools and institutions, and that centralised and concerted efforts are needed to integrate the elements. Copyright © 2009 John Wiley & Sons, Ltd.     

Formal independence of regulatory agencies and Varieties of Capitalism: A case of institutional complementarity?

The Varieties of Capitalism literature posits that national economic institutions reflect the mode of coordination of a country's market actors. Despite the importance of this claim and a rich literature on the emergence of regulatory capitalism, few studies test such prediction for Independent Regulatory Agencies (IRAs). This article connects the two fields of research by analysing the impact of economic coordination on the formal independence of IRAs. The results show that, beyond issues of credible commitment and policy stability, the collective action capacity of market actors matters. In particular, regulators in Coordinated Market Economies enjoy less independence than in Liberal Market Economies, while intermediate regimes grant IRAs the least autonomy. The policy implications are nontrivial. Similar to other macroeconomic institutions, inappropriate combinations of economic coordination and IRA independence may engender Pareto‐suboptimal regulatory solutions. In such cases, policymakers should reconsider the rules governing national regulators.     

Political institutions and Central Bank independence: A cross-country analysis

Using three quantitative measures of Central Bank independence, we apply OLS and TSLS regression methods to investigate the possible correlation between political liberty, political instability and central bank independence. For a sample of Western democracies and highly democratic developing countries we show that Cukierman's legal independence index is positively correlated with political freedom and regime political stability. It is negatively correlated with party political stability. For a sample of developing countries that excludes dictatorships we show that a special index of legal central bank autonomy is positively associated with political freedom and political stability. Finally, we observe that, for the same sample of nations, the turnover index of central bank independence is not sensitive to our political variables.     

Stakeholder consultations and the legitimacy of regulatory decision-making: A survey experiment in Belgium

Agencies consult extensively with stakeholders such as industry associations, nongovernmental organizations, and trade unions. One rationale for consultations is that these improve procedural legitimacy and lead to greater acceptance of regulatory outcomes by citizens and the regulated industry. While this presumption of a positive relation between stakeholder consultations and the legitimacy of agencies is widespread, research analyzing this relationship remains scarce. Using a survey experiment, we examine the effect of open and closed consultations on the acceptance of procedures and regulatory outcomes in the field of environmental politics. The results demonstrate that consultation arrangements positively affect the acceptance of decision-making procedures, especially when regulators grant access to different types of stakeholders. However, although the consultation arrangement itself does not directly affect acceptance of the regulatory outcome, procedural legitimacy matters, as it increases decision acceptance among individuals who are negatively disposed toward government regulation.     

Eyes wide shut? Reforming and defusing checks and balances in Argentina

How effective are autonomous audit agencies (AAAs) in curbing corruption and improving fiscal governance in emerging economies? AAAs are autonomous oversight agencies tasked with scrutinising government finances. However, they are not as effective as they could or should be, partly because of the political constraints they face and the political economy context in which they are embedded. This article assesses the performance and trajectory of the Argentine AAA. It suggests that AAAs can have only a limited impact when formal fiscal institutions are undermined by informal practices and undercut by adverse political incentives. It further highlights the limits of radical reform strategies based on the import of exogenous institutional models. This research has important research and policy implications for the reform and strengthening of AAAs in developing countries. Copyright © 2007 John Wiley & Sons, Ltd.     

When risk‐based regulation aims low: A strategic framework

This article develops a strategic framework for regulators to employ when choosing intervention strategies for dealing with low risks and reviewing performance, building on the analysis by the same authors in the previous edition of this journal. The framework occupies the operational “middle ground” between risk analysis and formal enforcement action. At its core is a matrix, the Good Regulatory Intervention Design (GRID), which provides a framework to categorize sites or activities on the basis of two factors: the nature of the risk and the nature of the regulatee. Using GRID, regulators can select which intervention tools to use, and determine the overall level of regulatory intensity that should apply. GRID is accompanied by the Good Regulatory Assessment Framework (GRAF) for agencies to use in reviewing their performance and provides a step‐by‐step process for enabling “double loop learning.” The article also argues that the process of developing such a framework highlighted the extent to which “low risk” and “high risk” regulation are distinct. “Low risk” means “low priority.” Justifying why certain risks should not receive much regulatory attention requires a particular type of engagement, and has a bearing on the regulatory strategies that are adopted.     

Policy coherence versus regulatory governance. Electricity reforms in Algeria and Morocco

The diffusion of independent regulatory agencies (IRAs) in utilities sectors in developing countries is underpinned by the idea that IRAs are highly effective institutional devices to signal policy credibility to private investors. But is it really so? Institutional economists tend to confirm the effectiveness of IRAs, while also highlighting the many factors that condition its positive impact on investments. Acknowledging the importance of interaction effects, this paper proposes to shift the level of analysis, moving away from IRAs to look at the overall complementarity between policy objectives, instruments, and the wider political context. In sum, it argues that IRAs are, as such, irrelevant. What matters instead is policy coherence. A comparison between two case studies on electricity policy reforms in Algeria and Morocco lends credit to the policy coherence approach. It shows that policy incoherence may deprive IRAs from any impact on sectoral evolution and that there are effective alternatives to IRA to signal policy credibility and attract investors. The paper concludes by suggesting practitioners to relax the focus on preconceived policy solutions, to be open to alternative policy approaches and to focus on helping developing countries designing coherent policies.     

Judicial review of regulatory decisions: Decoding the contents of appeals against agencies in Spain and the United Kingdom

Despite the important role that courts play to supervise the legality of regulatory agencies' actions, only few comparative studies analyze the contents of judicial appeals against regulatory decisions within European countries. This paper builds on the comparative administrative law scholarship and administrative capacities literature to analyze the content of 2,040 rulings against decisions issued by competition and telecommunications regulators in Spain and the United Kingdom. To understand the substance of the appeals, the study classifies cases according to the alleged administrative principles under breach and the regulatory capacities under challenge. Findings show a clear country-sector variation regarding the information contained in judicial disputes for both dimensions of analysis, which can be explained as a result of existing differences between the institutional settings of courts. These results offer a more in depth understanding of the political role of judicial oversight over regulatory agencies embedded in different institutional arrangements and policy sectors.     

Domestic drivers of transgovernmental regulatory cooperation

Transgovernmental cooperation among domestic regulators has generated considerable interest among scholars and policymakers. While previous research has focused on describing such regulatory networks, we know very little about what drives individual jurisdictions to join them. The question of membership is important because it determines the reach of rules and standards promulgated by a given network, and because it is logically prior to understanding the rulemaking dynamic within a network. We develop a set of hypotheses that highlight the role of domestic political factors in shaping network membership. Our empirical analysis, using an original data set for transgovernmental cooperation in securities and insurance regulation, finds that the institutional form of domestic market regulation, as well as the relative domestic weight of the industry, are closely correlated with membership. All else equal, jurisdictions with independent regulatory agencies and those where the industry in question represents a large share of gross domestic product are much more likely to join the respective network than jurisdictions without these characteristics. The paper underscores the important interactions between domestic and international factors for informal cooperation, an issue that has become increasingly central to global governance.     

Independent regulatory agencies in Turkey: are they really autonomous?

This article examines the autonomy of independent regulatory agencies (IRAs) in Turkey. It explores, first, the different factors that have led to the creation of IRAs and second, the legislative basis of their formal or de jure autonomy. Thereafter, the article assesses the extent to which this formal autonomy is really put in practice and how it is perceived by board members. The enquiry was conducted through a survey comprising interviews and a questionnaire applied to the same. It concludes that although formal autonomy is satisfactorily provided for by law, government tends to limit this autonomy through secondary legislation. Consequently, there are some constraints on the actual use of autonomy. Concerning de facto autonomy, survey findings show that boards are exposed to external and internal pressures and interference in their deliberations. Thus, the assumption that ‘the greater the autonomy the more efficient the management’ is questioned. The main sources of pressure on board members are from the regulated sectors themselves. These findings have an important bearing on democracy and the political–administrative interface, as it is confronted by market forces. Copyright © 2007 John Wiley & Sons, Ltd.