2017 GCGC

2-3 June 2017

Does Agency Structure Dictate Agency Decisionmaking: Implications of the CFPB’s Design for Administrative Governance


Roberta Romano

Sterling Professor of Law, Yale Law School


Holger Spamann

Lawrence R. Grove Professor of Law, Harvard Law School


An extensive literature has debated the accountability of administrative agencies, and in particular, their relationship to Congress. A well-established strand in the literature emphasizes that Congress retains control over agencies by their design, and in particular, the structure and process by which agency decisionmaking is undertaken. This paper examines the relationship between agency structure and decisionmaking across four agencies with similar statutory missions but different organizational structures:  the Consumer Financial Protection Bureau (CFPB), with a uniquely independent structure, and the Consumer Product Safety Commission, Securities and Exchange Commission and Commodity Futures Trading Commission, with more conventional independent commission structures, and  presents data indicating that agency structure influences agency decisionmaking.  More specifically, the statistical analysis is robustly consistent with an agency’s insulation from Congress being related to its choice of regulatory instrument, as the most independent agency in this study, the CFPB, uses significantly less frequently the most publicly accountable regulatory instrument of notice-and-comment rulemaking.

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