Procedural Politicking for What? Bureaucratic Reputation and Democratic Governance

As the bureaucratic policymaking process has frequently deviated from conventional procedures contemplated by administrative law statutes, recent research suggests that bureaucrats strategically use rulemaking procedures to pursue their own goals and circumvent political interventions. However, the literature has often neglected implementation issues that bureaucrats confront in the policymaking process. Building on a bureaucratic reputation perspective that explicitly recognizes bureaucrats’ concern for implementation failure and reputational damage, this study examines when and why U.S. federal agencies issue rules without prior notice and comment instead of proposing rules through the conventional notice-and-comment process. Using logistic regressions with fixed effects, based on over 16,000 rules published between 2000 and 2020, we find that agencies are more likely to solicit prior public comment when making more complex and stringent rules. However, they tend to bypass it when making new rules and joint rules with other agencies. This study also shows that the positive effect of rule stringency on agencies’ use of the conventional notice-and-comment process tends to be more pronounced in agencies with higher proportions of professional bureaucrats. Overall, our findings indicate that bureaucrats’ choices of rulemaking procedures might be shaped by their incentives to prevent implementation failure and preserve agency reputation, which can be compatible with the norms of democratic governance.