102 Iowa L. Rev. 1063 (2017)

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Abstract

Since its origins in the late 19th century, the most salient characteristics of the progressive state have been marginalism in economics, the greatly increased use of scientific theory and data in policy making, and the encouragement of broad electoral participation. All have served to make progressive policy less stable than classical and other more laissez-faire alternatives. However, the progressive state has also performed better than alternatives by every economic measure. One of the progressive state’s biggest vulnerabilities is commonly said to be its susceptibility to special interest capture. The progressive state makes many decisions via either legislation or administrative agencies, and both are thought to be prone to special interest control at the expense of the public. Nevertheless, the superior economic performance of the progressive state calls that conclusion into question. How can a state policy that is so prone to special interest capture also produce superior results?

One severe weakness of the capture argument against the progressive state is that it uses the free market as a baseline for identifying what is in the public interest. Under such a standard, any political theory that believes that market failure is more widespread and in need of correction will generate too many false positives suggesting capture. In fact, special interest capture often explains failures to regulate as much as special interest regulation itself, and today the former dominates the latter on many important issues. Ironically, one exacerbating factor in producing such capture is the structural features of the Constitution itself, which place much higher burdens on those seeking to regulate than on those seeking to resist regulation.