Regulatory Capture Forum:
What is regulatory capture? Everyone believes it exists, but no one agrees on what it looks like. This forum brought together leading experts from government, the federal bench, the academy, and the business world to explore the concept in a more rigorous way. Panels discussed how to measure capture in the rulemaking context; whether federal agencies’ allegedly weak enforcement of regulatory crimes is evidence of capture; and whether increased transparency, robust enforcement, enhanced judicial oversight, or deregulation are plausible solutions to special interest influence.
9:30 - 10am Opening Remarks by Senator Sheldon Whitehouse
10 - 10:15am Remarks by Senator Mike Lee
10:15 - 11am Panel One – Agency Enforcement and Evidence of Capture
11 - 11:45am Panel Two – Regulatory Capture in Rulemaking
Panel One – Agency Enforcement and Evidence of Capture
Federal agencies do not just draft rules; they enforce the resulting regulations as well as the overarching federal statutes. Are failures to prosecute corporations and executives evidence of capture or merely instances of selective prosecutorial discretion? While some observers claim weak enforcement is clear evidence of capture, others argue increased regulatory oversight by the Securities and Exchange Commission has increased compliance costs. Are deferred prosecution agreements good policy or naïve capitulation? Judge Jed S. Rakoff, U.S. District Court for the Southern District of New York, Gretchen Morgenson of The New York Times, and Brandon Garrett of the University of Virginia School of Law and author of Too Big to Jail, considered these timely and controversial topics. Ronald A. Cass, President of Cass & Associates and ACUS Council member, moderated.
Panel Two – Regulatory Capture in Rulemaking
This panel explored the latest scholarly work on regulatory capture in the rulemaking context. Are certain types of rules less vulnerable to capture? Is deregulation a solution to the problem of capture or itself evidence of a new type of capture? Do Congressional delegations to executive branch agencies give individual legislators excessive influence over agencies through informal contacts and formal controls? Neomi Rao of George Mason School of Law, Sidney Shapiro of Wake Forest University School of Law, Daniel Carpenter of Harvard University, and Mark Calabria of the Cato Institute discussed these questions and others. Steve Croley, General Counsel of the Department of Energy and ACUS vice-chair, moderated.