Differentiating Centralization and Coordination in National Intelligence after 9/11

This chapter uses legislative changes in the structure of federal intelligence information management in the wake of 9/11 to explore problems that arise from the failure to distinguish the centralization/decentralization and coordination/independence dimensions of regulatory authority. According to the 9/11 Commission, created to investigate the intelligence community's inability to thwart the terrorist attacks, the failure of agencies such as the FBI and the CIA to share information with each other, attributable largely to a lack of coordinated information management, was a major contributing factor. The chapter contends that Congress and the 9/11 Commission's report-on which the former relied in 2004 in enacting the most comprehensive structural reform of the intelligence community in fifty years-erred by seeking to address coordination failures by centralizing aspects of the intelligence community through the creation of the Office of the Director of National Intelligence. In addition, neither Congress nor the Commission distinguished clearly among three different information management functions-generation, dissemination, and analysis-in assessing past intelligence failures or selecting reorganizational responses to them. The chapter then uses the intelligence information management context to explore the policy tradeoffs of situating authority along both the centralization/decentralization and coordination/independence dimensions for each information management function.

Differentiating Centralization and Overlap in Swap Regulation

This chapter explains how legislative changes to, and the broader commentary on, US derivatives regulation illustrate the value of parsing the overlap/distinct and centralization/decentralization dimensions in assessing the tradeoffs of regulatory allocations. The Securities and Exchange Commission and the Commodity Futures Trading Commission have been tasked with decentralized authority over securities and futures, respectively. Over time, their jurisdictions have increasingly overlapped as the futures and securities markets converged. Reorganization proposals and legislation to correct perceived problems with the overlapping, decentralized regulatory regime (such as Title VII of the Dodd-Frank Act) have usually failed to parse the various tradeoffs between overlap and distinct or between centralized and decentralized authority. By limiting their analysis, policymakers and observers of derivatives regulation may have misdiagnosed problems with the existing allocation or missed potential opportunities to craft different regulatory configurations that might have better accommodated policy tradeoffs or been more politically viable.

The Dimensions of Allocations of Authority

This chapter analyzes the three key dimensions for characterizing the allocation of regulatory authority. The most frequently analyzed dimension, centralization/decentralization, focuses on the scale(s) or level(s) of government-granted jurisdiction. The overlapping/distinct dimension considers the degree of overlap in governmental authority among multiple government bodies with concurrent jurisdictions. Two governmental entities have overlapping jurisdictions only to the extent that both their substantive and functional authority is concurrent. Finally, the coordinated/independent dimension, which uniquely focuses on the interaction between agencies, considers the extent to which authority is exercised independently or in coordination with other governmental entities. Coordination can vary in its degree of hierarchy and in its discretion, duration, frequency, and formality. Each dimension measures a particular component of regulatory authority, with each dimensional pole representing mostly different sets of policies and ultimately values tradeoffs over the appropriate design for managing social problems. The chapter thus explores the potential advantages and disadvantages of situating or shifting agency authority at each end of the spectrum represented by each dimension.

Decentralization and the Functions of Food Regulation

Using the federal food safety regulatory laws as examples, this chapter explores the significance of governmental function in understanding and prescribing centralized and decentralized authority. It begins by examining how recurrent criticisms of federal food safety regulation for excessive decentralization have routinely failed to consider whether the optimal degree of centralization should vary by regulatory function. It then argues that functional differentiation can provide important analytical benefits, including (1) more accurate characterizations of existing regulatory programs, (2) mitigation of practical obstacles to desirable restructuring, (3) clarification of the tradeoffs of centralized or decentralized regulatory structures, and (4) illumination of alternative options for situating authority at different points on the centralization dimension. Finally, it contends that functional analysis can help policymakers improve the net benefits of choices along the centralization/decentralization dimension by identifying appropriate organizational choices along the other two dimensions for allocating authority.

Conclusion

This concluding chapter summarizes the book's contributions to the literature on institutional design. These include providing: (1) a common taxonomy for the analysis of intergovernmental relationships; (2) descriptive insights that substantiate the value of the dimensional and functional framework we advocate; (3) normative postulates, derived from the book's six case studies, about the best ways to structure authority along the various dimensions and for particular functions in specific contexts; (4) a call for future empirical work by scholars and policy analysts investigating the advantages and disadvantages of alternative allocative configurations revealed by actual experience with past reorganizations. The chapter then urges the adoption of an adaptive governance infrastructure that embeds systematic, continued assessment of existing regulatory allocations (principally overseen by an insulated federal entity) into the existing administrative system. The chapter suggests how authority to implement this learning infrastructure should be allocated along each of the three dimensions for three key information management functions. It also explains how integrating such a governance infrastructure into ongoing policymaking processes has the capacity to promote increased deliberation and accountable government.

NEPA, the ESA, and the Tradeoffs of Interagency Coordination

An analysis of the National Environmental Policy Act (NEPA) comparing it to analogous provisions in the Endangered Species Act (ESA) illustrates the value of a careful exploration of interagency coordination-not only the choices that exist for policymakers in deciding the extent to which regulatory authority should be coordinated, but also how policymakers should assess such allocations on a function-by-function basis. Both statutes rely on mechanisms for coordinating certain functions of federal agencies. The chapter argues that NEPA would likely have been more effective if it had extended coordination obligations to information distribution, compliance monitoring, and possibly even project implementation. It suggests that the ESA illustrates one form that formal interagency coordination of implementation and post-decision monitoring might take. The chapter ultimately argues that policymakers should consider the tradeoffs of interagency coordination and independence on a function-by-function basis.

Substantive and Functional Jurisdiction

This chapter identifies the different types of regulatory or management authority vested in agencies by legislatures or executive branch officials. Each allocation of regulatory authority has a substantive as well as a functional component. This chapter introduces the distinction between substantive jurisdiction, the subject matter a governmental institution is authorized to regulate or manage, and functional jurisdiction, the various administrative functions an agency performs. Functional jurisdiction categories include funding; research, data generation, and ambient monitoring; information compilation and distribution; information analysis; planning; standard setting; implementation and permitting; inspection and compliance monitoring; and enforcement. Affording attention to functional jurisdiction, in addition to substantive jurisdiction, provides insights about the policy and value tradeoffs among available options for allocating government authority that may otherwise be obscured.

Varying Climate Change Governance

This chapter uses climate change governance to illustrate how policymakers can engage in an integrated analysis of the advantages and disadvantages of defining agency jurisdiction along each of the dimensions for different governmental functions. In particular, the chapter assesses and considers alternatives to the interjurisdictional frameworks that have begun to develop, with a three-part focus on climate change adaptation, mitigation, and geoengineering activities. Though undoubtedly contextual within these three general categories of emerging governance, each presents challenges and implies different tradeoffs that are likely to be more consistent with particular types of allocations. The chapter extrapolates from the insights from the book's earlier case studies and draws plausible inferences based on justifications for particular allocations to propose configurations for these three emerging regulatory regimes. Finally, the chapter explains how climate change governance illustrates the merit of integrating into institutional design strategies that promote learning about the efficacy of adopted allocations.

The Functions of Overlapping Pollution Control Federalism

Using the federal pollution control laws as examples, this chapter explores the significance of governmental function in understanding and prescribing overlapping authority. It begins by showing how characterizations of pollution control federalism have neglected functional jurisdiction, either by overlooking the extent of overlap entirely or, more recently, by overlooking the extent to which agencies' substantive and functional jurisdictions overlap. It then argues that assessments of pollution control federalism have routinely ignored the value of distinguishing among different regulatory functions in assessing the extent to which jurisdiction should overlap or be distinct. Finally, the chapter asserts that policymakers should systematically and explicitly distinguish among functions in deciding the extent to which authority should overlap. Focusing on functional jurisdiction thus provides opportunities to tailor the extent of overlap for each function to correspond to the concerns and opportunities that relate to the performance of that function.

Introduction

This chapter introduces the book's thesis, goals, and structure. Allocations of authority to regulatory institutions and the relationships between them are poorly understood and underexplored in popular and academic debates about the administrative state. Attempts to create new regulatory programs or mend underperforming ones are routinely poorly designed. The book advances a framework for assessing how governmental authority may be structured along three dimensions: centralization, overlap, and coordination. It demonstrates how differentiating among these dimensions and among particular governmental functions (e.g., ambient monitoring, standard setting, planning, enforcement) better illuminates the tradeoffs of organizational alternatives. This framework (1) provides a common taxonomy for designing or assessing interjurisdictional relations; (2) develops explanatory insights about the nature of interjurisdictional relations that validate the value of the book's taxonomy; (3) provides preliminary normative postulates about the circumstances under which certain distributions of authority are most likely to be successful; (4) serves as a roadmap for the accumulation of empirical evidence about why certain institutional arrangements work and others fail; and (5) can, when combined with an adaptive governance infrastructure, transform regulation by being systematically integrated by both experts on government organization and policymakers into the design, assessment, and periodic redesign of regulatory institutions.