Envisioning the Regulatory State : Technocracy, Democracy, and Institutional Experimentation in the 2010 Financial Reform and Oil Spill Statutes

In the summer of 2010, Congress considered legislation responding to two very different policy crises: the Dodd-Frank financial reform bill responding to the 2008-9 financial crisis, and the CLEAR Act responding to the Deepwater Horizon oil spill in the Gulf of Mexico. While addressing different policy issues, both of these statutes were centrally concerned with reforming the structure of the regulatory state itself to promote more effective policymaking, particularly in response to fears of agency capture, and a lack of responsiveness or accountability. His paper analyses the two statutes side-by-side as exhibiting a common set of visions and concerns about the regulatory state. On the one hand, both statutes exemplify a technocratic impulse common in American political thought and policy. Under this approach, regulatory effectiveness is promoted by expanding the expertise, coordination, and political insulation of agencies. But at the same time, both statutes engage with a range of experiments with more democratic regulatory reforms - expanding participation in regulatory policymaking, establishing formal mechanisms for interest representation, creating additional democratic counterpublics where citizens can engage and policies can be innovated, and promoting vertical accountability within corporations. While these debates about democracy and the regulatory state are long-standing ones in administrative law, these statutes raise some innovative institutional approaches that together hint at a potentially fruitful alternative framework for regulatory reform, one that harnesses the potential of democratic politics to respond to concerns about agency capture, responsiveness, legitimacy, and accountability