The administrative state exercises power — too much power in the view of many. But what kind of power and in what forms? Rachel Potter’s new book, Bending the Rules, provides an occasion to reflect on these questions. The portrait she presents is that of strategic bureaucrats. These bureaucrats, civil servants and appointees alike, know a lot about how to make rules. They can leverage this procedural knowledge to “insulate” policies otherwise under threat — from interest groups, the President, Congress, and the courts. In doing so, bureaucrats can (and do) achieve their preferred outcomes. Potter refers to this phenomenon as procedural politicking.
In Potter’s account, agencies can get what they want — with few the wiser. For example, Potter argues that agencies strategically draft rules and analyses to obfuscate or frame their content in favorable ways. They can also consult the public in forms that benefit them. Finally, they can publish and implement final rules in amenable political environments. Potter then marshals sophisticated data, which turn out to largely support her thesis. Over various measures, she convincingly shows that agencies strategically protect their policies from anticipated opposition. In this manner, bureaucrats exercise a kind of invisible power, the ability to achieve a favored outcome without observable clashes.
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