Decision-Making autonomy of federal regulatory agencies and the formation of collegiate bodies in Brazilian Law

Critical analysis based on the assumptions of public choice theory and administrative process theory of regulation

Abstract

[Purpose] This article seeks to critically examine, based on the assumptions of the theory of public choice and the administrative process theory of regulation, the legal arrangement envisaged to ensure decision-making autonomy for federal regulatory agencies, especially based on the model envisaged for the process of appointing their leaders.

[Methodology/approach/design] On the one hand (descriptive), public choice theory, according to the methodology parameters of Duncan Black, Kenneth Arrow, Anthony Downs, James Buchanan, Mancur Olson, William Niskanen and George Stliger, despite not being a regulatory capture theory, allows envision the possibility that, in some cases, the “acquisition” of regulation by special interest groups and/or by political power may occur. On the other hand (normative), administrative process theory of regulation, from the perspective of Steven P. Croley, helps to understand the environment employed within the scope of regulatory agencies to make their decisions, especially with regard to procedural and institutional guarantees they seek ensure decision-making autonomy to the regulator, so that, with this, the risks of capture are avoided or reduced, which would consist of dysfunctional behavior incompatible with conceptions of law and public interest that inform the production of state acts, as it occurs with economic regulation. In this context, the process of appointing the directors of regulatory agencies will be critically evaluated, considering the current political monopoly of this activity and the possible repercussions for the decision-making autonomy of federal agencies.

[Findings] The research indicates that, despite the institutional and procedural progress existing in Brazilian law, it would still be possible (and even desirable) to promote new improvements, especially to reduce political power in the formation of collegiate bodies of regulatory agencies.