Document Type
Article
Publication
Wisconsin Law Review
Year
2021
Citation Information
Pamela J. Clouser McCann, Douglas M. Spencer, and Abby K. Wood, Measuring State Capture, 2021 WIS. L. REV. 1141 (2021), available at https://scholar.law.colorado.edu/faculty-articles/1908.
Abstract
How do we know when an executive branch actor is captured or is at risk of capture? And what is the risk that other branches of government could be captured? In this project, we offer a critical review of regulatory -- or industry-related -- capture that we use to build a concept of state capture that extends beyond agency-specific accounts and incorporates both the structures and processes of governing, while centering our examination on the public. We use state-level data on campaign finance, lobbying, industry size, ethics, and transparency to measure the degree to which the fifty state executive, legislative, and judicial branches are at risk of capture by the dominant industries in the state. We then test our measures of risk against policies that departed so far from public opinion that scholars suspect capture may have been at play. Finally, we discuss judicial review of agency action in the face of suspected capture. Courts should use a heightened level of scrutiny where risk of capture is high. However, we also point out that elected judges-particularly those who run for re-election-are vulnerable to the same pressures that legislators endure when it comes to the risk of influence via campaign finance. In those cases in which a judge's campaign financing is dominated by the industry affected by the agency action or statute, the judge should recuse. And policymakers concerned about judicial capture should create a narrow presumption for litigants to remove the case to federal court.
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