Due Process, Resource Mobilization, and the Occupational Safety and Health Administration, 1971-1996: The Politics of Social Regulation in Historical Perspective

This paper reconsiders the political constraints and organizational dynamics which limit standard-setting by the Occupational Safety and Health Administration. Past research is dominated by class analytic perspectives which trace the failure of regulatory agencies to either direct “capture” by regulated industries or widespread concern about business confidence. This paper synthesizes the insights of critical legal studies and recent work in political sociology to further specify the social bases of corporate power in the regulatory arena. Critical legal scholars emphasize the ways in which “class neutral” legal statutes create opportunities for capital at the expense of subordinate groups. Recent work in political sociology clarifies the complex organizational and institutional dynamics that shape the mobilization of strategic resources in the context of political opportunities. Using a sample that covers 25 years, we examine the extent to which due process in standard-setting favors capital at the expense of labor due to disparities in resource mobilization. Due process provides capital several opportunities to challenge regulatory initiatives. Capital, led by trade associations and Fortune 500 companies, has consistently mobilized the resources necessary to exploit these opportunities. In contrast, organizational constraints have seriously limited the mobilization of labor and its potential allies, including state technocrats, to defend regulatory initiatives. We identify two far-reaching gains secured by capital given these disparities. On the one hand, the mobilization of a corporate countermovement in any one case may have precluded the effective defense of other regulatory initiatives, since the resources of labor and regulatory agencies are easily exhausted. On the other hand, the mobilization of capital has served to safeguard its right to due process and the opportunities this right affords. We conclude that due process in standard-setting in the context of resource disparities necessarily favors capital because it inevitably results in “opportunity costs,” reflected in the hundreds of regulatory initiatives that remain dormant indefinitely.