Curing the Mischiefs of Faction in the American Administrative State

Abstract

The worries American citizens express about the distorting influence of minority factions, or special interests, on public governance are as old as the republic. I briefly recount the constitutional design flaws and developmental changes that have combined to make these worries more valid than ever in an age of administratively centered governance. I then review the evidence on the nature and extent of special interest influence on the administrative process from a broad swath of scholarship. After noting the limited efficacy of attempts to limit special interest influence via minor tinkering with the separation of powers, I argue for more fundamental structural change in the form of administration as a separate, constitutionally recognized element of the separation of powers. I outline basic structural features and offer hypothetical yet plausible consequences of such a design change. The latter, I contend, are amenable to confirmation or refutation through systematic analysis of evidence that is already available from past and current governing experience.