Source
Short, Hill and Brown (2025), Perspectives on Politics 24(2): 680–700, LIT-1327, read in NOTE-1051.
What was actually shown
The definition. Ideological capture occurs “when (1) regulators create standards that (2) are based on an ideologically motivated (expert) view of the ‘public interest’ and (3) consistently and repeatedly marginalize important public values and goals.” It is “not simply about what language is put into any given standard; it is also about the public goals that are left out of the standard.” The actors “are more likely to be ideologically motivated individuals, including academics and professionals, who benefit from their perceived lack of industry ties.” Note 4 separates it from informational lobbying: ideologues act “not by leveraging an informational asymmetry per se, but by developing ideological perspectives that redefine the ‘public interest’.”
The case. The consumer welfare standard entered through the Supreme Court’s 1979 adoption of Bork’s reading of the Sherman Act and the 1982 and 1984 merger guidelines, which were exempt from notice and comment, not through legislation; expert support was bipartisan and parties did not contest it. Merger challenges collapsed after 1981, and the authors know of no evidence that merging firms lobbied the agencies: “If business interests get what they want (merger approval) most of the time under the new guidelines, we would not expect to find pervasive evidence of intense lobbying.” The survey (THEORY-833) supplies the marginalized values and the expert–public cleavage.
Normative strength. Capture “varying along a continuum from weak to strong” by “(1) whether the experts promoting a given framework have any special claim to scientific legitimacy (a question of truth); and (2) whether the regulators elicited and considered public views before making a decision (a question of process)”. On both the authors place the standard at the strong end.
What could have come out otherwise: the survey could have found the public weighing prices as the standard does, which by the definition’s third condition would have ruled capture out (“so long as that framework does not marginalize important public values, it does not meet our definition”).
What this does not say
- That the counterfactual is shown. That the standard would have differed without expert influence is inferred from the cleavage and the history, not observed.
- That the history is established here. It rests on cited secondary work (Berman 2022, Teles 2008, Short 2022a and b, Kwoka 2014).
- That disagreement is capture. The definition excludes that expressly, and the drug-approval hypothetical is a framework the public might want replaced that would not count.
- That capture is a loop. The mechanism is a criterion, set once and applied thereafter. Nothing here says it reproduces itself, though the paper attributes the lawyers’ values to professional training. That a framework can sustain its own expert class is the record’s CLAIM-404 and TERM-066 territory, not this paper’s.
- That the public’s values are right. “We do not presuppose that any specific set of public values or goals are ‘right.’”