Democratic Input Legitimacy of IRAs: Proposing an Assessment Framework

Abstract

The democratic input legitimacy of independent regulatory agencies (IRAs) is often questioned. Their independence creates distance from the main executive bodies, who therefore do not necessarily bear responsibility for them. This in turn may negatively affect the responsiveness of the ‘unelected’ bodies to the electorate’s preferences and hence the acceptance of the authority of IRAs by the public. This article questions whether the democratic input legitimacy of IRAs should be problematic by definition. It examines the essence of the conventional way of ensuring input legitimacy, i.e. elections, and identifies the elements that create a reference level for assessment of input legitimacy, namely authorization, safeguards and accountability. It argues that if the input relationship between the public and IRAs is well organized with respect to these three elements, the input legitimacy of IRAs need not be problematic, even if IRAs are headed by the ‘unelected’. Furthermore, it distinguishes two dimensions of the democratic input legitimacy problem of IRAs: democratic legitimacy of IRAs as public institutions and of IRAs’ operation, and it applies the assessment formula to IRAs in the US and the EU in relation to both dimensions. Distinguishing two dimensions of the input legitimacy issue of IRAs makes it more feasible to determine the exact location of potential problems, which is essential to find appropriate solutions.