Administrative Discretion and Regulatory Capitalism - Colin Scott, University College Dublin
This paper evaluates the challenges and responses attaching to the exercise of administrative discretion associated with contemporary forms of ‘regulatory capitalism’ (which sees pervasive regulation, going beyond agencies and rules, as embracing a wider range of regulatory actors and new instruments). The expansion of state administrations in the twentieth century generated a degree of anxiety about the growth of administrative discretion. For Dicey, famously, administrative discretion was a threat to the rule of law in England. For K.C.Davis, writing in the post-War United States, administrative discretion was something to be structured through general standards. Since Dicey and Davis wrote, there has been a significant shift in European countries from governance through modes identified with the welfare state (which frequently implied substantial administrative discretion in such areas as welfare provision, health, education and provision of public utilities) towards more regulatory modes of governance (sometimes characterised as ‘the rise of the regulatory state’), and with the effect of displacing some forms of discretion with rules and processes for monitoring and enforcing their compliance. The growth of such classic regulatory modes of governing may be thought to reduce or eliminate challenges of administrative discretion. However, even with such classic regulatory modes, it is clear that agencies have substantial discretion, for example over when and how to enforce. The dominant theory of responsive regulation supplies a guide on how to exercise such enforcement discretion. Furthermore, a certain disenchantment with command and control regulation as a mechanism for effectively changing behaviours has led to the search for new instruments which may be more effective but may also involve more extensive discretion. One set of newer instruments, informed by the behavioural sciences, and now mandated by a US Executive Order (but not yet in the new EU better regulation package of 2015), may create a new challenge of applying discretion to determine when to shape ‘choice architectures’ to promote better behaviours by citizens and others. Regulators have been alive to the challenge of legitimately exercising discretion and, in some jurisdictions there has been a trend towards regulatory agencies setting down strategies and annual plans, consulting on them, and then publishing strategies in respect of such matters as enforcement. These practices, which constitute an internal mechanism of structuring discretion (somewhat distinct from approaches suggested by the Global Administrative Law (GAL)) movement have been encouraged by the OECD. In this paper we evaluate the application of these agency practices in the UK and in Germany. We ask to what such practices have been developed to the arguably more challenging discretionary practices of supranational and private regulators, who are further removed from elected government. Key examples of such regulators include the financial bodies established in the EU following the global financial crisis (such as the European Banking Authority (EBA) and the European Securities and Markets Authority(ESMA)) and, amongst the private regulators, the ISEAL alliance, which sets norms for decision making and evaluation for a wide variety of private labelling organisations.
Between eligibility and access: the mechanisms of administrative exclusion in Mexican student grants - Dr. Rik Peeters, Centro de Investigación y Docencia Económicas
The study of bureaucratic dysfunction has long focused on how red tape affects internal organisational performance. More recently, however, scholars have developed a fuller understanding of the impact administrative burdens have on citizens and, more specifically, on their ability to access the rights and services they are legally entitled to. Two important contributions to this field of research are the notion of administrative exclusion – referring to the gap between formal-legal eligibility and practical access through bureaucratic procedures – and the disproportionate effect of administrative burdens on disadvantaged groups.
We use these two insights to study the Mexican government´s programme to provide students from lower-income families with university grants. Quantitative data on grant applications, grant approvals, and student dropout levels is analysed and broken down for several population groups to trace the disproportionate effect of administrative burdens for the more disadvantaged groups (e.g. students from lower income families, rural areas, or indigenous communities). Interviews with students and selection committees provide additional insight in the mechanisms of exclusion.
We expect to find mechanisms of administrative exclusion at four levels:
1. Red tape: compliance criteria and application for prolonged support
2. Bureaucratic behaviour: selection of students to ration services; institutional support for students at universities
3. Rules: eligibility criteria excluding informal economic sector
4. Policy design: failure to reach certain target groups
A Thousand Petty Fortresses: Administrative Burden in U.S. Immigration Policies and its Consequences - Carolyn Heinrich, Vanderbilt University
Contradictory elements in U.S. immigration policy—reflecting a long-time struggle between inclusionary and exclusionary views—have resulted in federal legislation filled with compromises and tradeoffs that, at state and sub-state levels, play out in unclear interpretations and uneven, highly discretionary administration and enforcement of immigration law and policy. This research aims to document some of the primary sources of discretionary administration and enforcement of immigration law and policies, particularly as they play out at state and sub-state levels, while presenting a theoretical frame for more fully investigating and addressing their incidence and consequences. A mixed methods research approach is employed to explore these issues empirically and qualitatively, including a case study analysis of a policy change in Texas that draws on data collected from state documents and interviews with immigrants affected by the policy. To better understand the potential longer-term consequences of these policies, longitudinal data from a survey of children of immigrants are analyzed to assess later outcomes of children who are denied economic assistance and other benefits under policies that impose barriers to their integration into society. The study findings point to serious, adverse consequences of state and sub-state immigration policies that create administrative burden for families and reduce the well-being of children of immigrants, while also diminishing the transparency, fairness and effectiveness of public administration.
Unanswered Questions: Why Citizens Are Frustrated with Local Government and What Public Managers Can Do About It - Jennifer M. Connolly, University of Miami
In a recent survey of U.S. adults, only 36.5% of those who report having directly contacted their local government at least once in the last year rated their local government’s response time to the request or inquiry as either somewhat fast or very fast. Approximately 58% report that their local government was either somewhat helpful or very helpful. This book project examines two key questions: (1) Why are some local governments better able to reduce the administrative burdens their residents face when requesting information or services? And (2) What can local public managers can do to improve their responsiveness to citizen requests for services and overall citizen satisfaction with local government? Using novel data on Florida municipalities, I construct measures of local government responsiveness and examine the factors that contribute to local administrative burdens. Finally, I offer substantive suggestions as to what public managers can do to reduce administrative burdens at the local level and improve their responsiveness to local residents.
Mechanisms of Institutional Discrimination: A Case Study of the Belgian Police - Babette Gommers & Wouter Van Dooren, University of Antwerp
Diversity in the Belgian police force is limited. In addition, complaints about discriminatory behavior repeatedly emerge. In response, police forces take initiatives to match the composition of their forces with that of the society. However, the results of these diversity policies are modest. This research therefore asks how the lack of diversity and the prevalence of discriminatory behavior can be explained. Following Reskin (2003), we contend that institutional mechanisms moderate - reinforce or mitigate - the relation between our psychological biases and the actual behavior. Our study will focus on three mechanisms of institutional discrimination; administrative barriers, formalization and accountability, and job socialization. We will present our research design involving a cohort study of recruits of the police force. Using a qualitative mixed methods design, we will follow these recruits during their selection, training and first year on the job.
Balancing Barriers to Entry and Administrative Burden in Voluntary Regulation: An Example from the National Organic Program - David Carter, University of Utah
Voluntary programs have become a recognized instrument for achieving public and private governance goals. As a governance instrument, these programs face a particular design challenge: to generate societal benefits, a voluntary program must balance stringent standards that support the program’s environmental or social goals, on one hand, with program participation costs that may deter program participation, on the other. This paper argues that the theoretical framework of administrative burden provides a means to consider how certification programs set and adjust entry barriers to motivate participation while maintaining credibility. The framework’s applicability is illustrated through an examination of National Organic Program initiatives to reduce the administrative burden faced by agricultural producers seeking organic certification. Through a discussion drawing on the case, we identify three questions and a number of theoretical expectations for research contributing to a better understanding of the causes and consequences of voluntary program administrative burden.
I am excited about the prospect of discussing the ideas that we developed in the course of this paper, and the associated research agenda that includes topics such as: modeling how administrative burden changes affect voluntary program uptake and participation; how third-party administrators shape voluntary program administrative burden, and; how competition may incentivize administrators to alleviate voluntary program administrative burden. Please do not hesitate to contact me with any questions regarding this letter, or the project. Thank you for the consideration.
Bureaucratic work, mediation and individual experiences of administrative burden: preliminary results on the implementation of the common agricultural policy in France and Spain - Blandine Mesnel, Ph.D. candidate in political science, Centre d’études européennes, Sciences Po, Paris, Agence de l’environnement et de la maîtrise de l’énergie (ADEME)
The common agricultural policy (CAP) provides critical direct subsidies to European farmers. Two criteria have recently been added to those allocations in order to foster biodiversity: “conditionality” (2003) and “green direct payments” (2015). Those criteria are significantly demanding for farmers in terms of bureaucratic work, calling for new monitoring measures of their farming practices as well as digital declarations on their natural landscape. Each country is developing its own implementation mode for those norms. This has an impact on the distribution of compulsory bureaucratic work between farmers and other CAP actors, notably agricultural civil servants or professional agricultural organizations. A comparison of France and Spain enables us to measure the effects of the existence of this bureaucratic work (most-similar case) and of its monitoring (most-different case) on the farmers’ individual experiences and representations of administrative burden. This research is based on multiple interviews with CAP beneficiaries and State or non-State actors involved in the CAP implementation (N = 76) in both countries. Direct observations of farmers / mediators interactions complement this fieldwork.
Influence of Red Tape on Bureaucratic Decision: Replication and Extension of Scott and Pandey - Richard Walker, City University of Hong Kong
Bureaucratic decisions are made under a “rule structure”. The rule structure controls the boundary of decisions, numbers of decisions, and timing of decisions. The organizational level of red tape describes a problematic rule structure, and is commonly defined as unnecessary and wasteful rules), and burdensome rules, regulations and procedures. If an organization has red tape, then the decisions in that organization will be negatively affected.
This study replicates the simulation experiment of Scott & Pandey (2000) that examined decision propensity under different levels of red tape and different levels of compassion. An empirical generalization is conducted, extending the population to Hong Kong. Following the original study the subject pool are master students of public administration and social welfare. Materials are localized to the Hong Kong context.
The experiment is a training module for new social workers. The training module introduces information about a NGO (the service provider), and asks participants to make decisions for social welfare to four clients in a two-by-two factorial design (high/low red tape and high/low compassion). In the high red tape condition, organizational information includes more micro management examples, and complex forms for decision-making. In the low red tape condition, organization information is lighter, and decision-making is simple. High and low compassion are singled by client’s circumstances. We will compare the amounts of benefits and types of benefits that participants decide to offer the clients between two conditions to ascertain the impact of administrative burdens on decision-making.
The original findings showed that the high level of red tape produce a reduction in benefits offered, and the reduced level is related to how much compassion participants showed towards the clients. By conducting the replication in Hong Kong, we will test boundary-conditions. It is anticipated that the findings will vary from the original study because of a likely greater tolerance for overbearing rules and a willingness to accept authority and decisions made by organizational leaders. Findings from this study, when compared to the original, will shed light on the theory and practice of administrative burdens in different contexts.
The Psychology of Administrative Burdens - Martin Baekgaard, Aarhus University
Research on administrative burden distinguishes between three types of burdens -- learning, psychological, and compliance burdens -- that citizens may be imposed in interactions with the public administration. While knowledge about learning and compliance burdens has increased in recent years, less is known about psychological burdens. In this paper I will present a research proposal about how to study psychological burdens using both experimental and observational designs. The project takes its theoretical starting point in research on how resource scarcity affect cognitive abilities. Drawing on the cognitive literature on the effects of resource scarcity (e.g. Mullainathan and Shafir 2013), the project suggests that individuals who are constrained by scarce resources will have to devote cognitive capacity to deal with their situation. This in turn is expected to reduce their ability to cope with administrative rules because of the reduction in cognitive capacity and hence to create stronger psychological burdens.
Targeting cooking Gas Benefits in India: Investigating Administrative Burden and Policy Feedbacks - Srinivas Yerramsetti, Rutgers University
Research into how compliance regimes shape citizenship continues to lag the pace with which technocratic principles are embedded within the practices of the delegated welfare state. Consequently, our understanding of how technocratic welfare policy design weighs upon the citizens’ ability to comply with programs and affects behavioral change remains inadequate. This research assesses the role of administrative burden in citizen–state interactions in mediating mass public behaviors within the specific empirical setting of welfare targeting, where biometric data is used to verify eligibility, of cooking gas benefits in India. Based on mixed methods research, the research seeks to show how burdens influence various forms of citizen participation, and their beliefs about procedural justice and policy legitimacy. Thus, the research findings seek to contribute to a growing body of knowledge about how citizen-state interactions shape democratic citizenship.