Nicholas Bagley (University of Michigan Law School) has posted Agency Hygiene (Texas Law Review See Also, Vol. 8, p. 1, 2010) on SSRN. Here is the abstract:
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Rachel Barkow's important article on structuring agencies to insulate them from interest-group capture leaves largely unanswered the problem of what to do with an agency that has already been captured. Although nothing in principle prevents Congress from reshaping existing agencies along the lines she suggests, experience suggests that we might wait a very long time for Congress to enact structural reforms.
To eliminate capture that has already taken hold, the political branches need two things: good information and political will. They need information in order to identify capture where it occurs, to understand the contours of the relevant capture dynamic, and to suggest agency-specific strategies for ameliorating capture. More significantly, the political branches also need the will to implement those strategies even in the face of stiff resistance from well-funded groups with a potent interest in perpetuating the status quo. Although information and political will are in short supply, they need not be. Congress can and should establish a body housed within the Executive Branch and vested with the authority to investigate allegations of capture and document the existence of capture dynamics where they arise. Adequately funded and appropriately staffed, this body would coordinate with offices of inspectors general across the federal bureaucracy to identify capture where it occurs. At the same time, Congress should create legislative mechanisms to spur action on the recommendations of this newly instituted body.
