ECONOMY

278 the judiciary and the role of law
that emphasizes the ways in which courts reinforce strategies of political control
through their various judicial doctrines and techniques. 4
Administrative procedural review is the most typical way by which courts supervise
the bureaucratic process. This review includes enforcing the procedural rules
established by statute and administrative regulation and also through judicially created
procedural guidelines. Through the creation and enforcement of administrative
procedures, the courts also play a role in the political control of the bureaucracy
(Spiller 1996; Ferejohn and Shipan 1990). For ex post controls, such as fire alarms,
to succeed as a tool for controlling the bureaucracy, they must be credible (Lupia and
McCubbins 1998). The creation of credible fire alarms involves establishing appropriate
procedures for managing the collection and dissemination of information about
an agency’s activities (McNollgast 1987, 1989).
3.1 Implications of the Administrative Procedure Act
TheUSAdministrativeProcedureActof1946 (APA), as interpreted by the courts,
establishes several provisions facilitating political control of agency decision-making:
First, an agency cannot announce a new policy without providing notice of a change.
Second, agencies must solicit comments allowing interested parties to state their
views. These notice and comment provisions ensure that the agency discovers the
relevant political interests and the political costs and benefits associated with various
actions. 5 Third, agencies must allow interested parties to participate in the decisionmaking
process to the extent specified in the organic statute creating the agency
(McCubbins and Page 1986). If hearings are held, interested parties may present
evidence and cross-examine witnesses, and rules against ex parte communications
protect against the possibility of secret deals between agencies and constituent groups.
Because participation in the administrative process is costly, it allows leaders to gauge
the level of involvement of interested parties (Noll 1971). Fourth, agencies must
provide a rational link between the evidence received from interested parties and
the final agency policy decision. Fifth, agencies must make a record of the final vote
of each member in the proceeding available for review. The entire decision-making
process provides political leaders with numerous opportunities to respond when an
agency seeks to move in a direction which diverges from leaders’ preferences. Many
countries have adopted measures similar to the American APA to achieve political
control of the bureaucracy (Spiller 1996). 6
⁴ For a survey of this literature, see Rodriguez 1994, 91–105.
⁵ Although not all groups with political interests at stake will participate in the notice and comment
process, failure to participate signals that these non-participating actors are less likely to become a
significant electoral force in the future.
⁶ In addition to ensuring agency compliance with the APA, courts apply procedural rules embodied
in the organic statutes creating and regulating the agencies and also in procedural regulations adopted by
the agencies themselves. These rules reflect the same legislative interests manifest in the APA, in that they
facilitate legislative control, while also subserving other critical values such as procedural fairness,
regularity, and regulatory efficacy (Edley 1990). The PPT approach to administrative procedures does