Policymaking as Power-Building

The problem of balancing power through institutional design — always a central concern of constitutional theory — has taken on even greater salience in current scholarship in light of contemporary concerns over economic inequality and failures of American democracy today. This paper extends these concerns into the realm of administrative law and the design of regulatory policy. I argue that in an era of increasing (and increasingly interrelated) economic and political inequality, we must design public policies not only with an eye towards their substantive merits, but also in ways that redress disparities of power. In particular, we can design policies to institutionalize the countervailing power of constituencies that are often the beneficiaries of egalitarian economic policies, yet lack the durable, long-term political influence to sustain and help implement these policies over time.This concept of “policymaking as power-building” rests on a descriptive and normative claim. Descriptively, the paper shows how historical and contemporary analyses of administrative governance indicates that regulatory institutions and policies are already involved in shaping and responding to the balance of power among civil society groups. Normatively, the paper argues that this reality should be harnessed to pro-actively design policies that mitigate power disparities, and in so doing promote greater democratic responsiveness through regulatory policy design. The paper develops this argument through case studies of power-balancing policy design in local regulatory bodies around economic development initiatives, and in federal regulation around the case of financial reform. The paper then theorizes a more general framework for designing similar power-shifting policies that are portable across substantive areas of law and policy and across federal, state, or local level administration. This framework should be of interest to policymakers, advocacy groups, and other practitioners designing regulatory policies and concerned about dangers of capture and disparate influence.This account of policymaking as power-building synthesizes literatures in law, social science, and political theory to offer a more institutionally-rich account of power and the interactions between constituencies on the one hand and policymaking institutions on the other. It also extends the current debates on power and public law, law and inequality, and administrative and local government law