Governing by Fiduciary: How the Employee Retirement Income Security Act of 1974 Delegated Control over Pension Policy to Private Actors

Approximately one-half of Americans participate in a pension plan offered by their employers and subject to the Employee Retirement Income Security Act of 1974 (ERISA). Yet ERISA is frequently ignored by social scientists researching retirement income because of its complexity. Given the enormous amount of foregone tax revenues that support private pensions, the motivating question of my dissertation is: How did the American state change as Congress delegated power over American pension plans to private employers? I argue that a weak system of bureaucratic oversight and the federal courts' deference to pension administrators allowed fiduciaries to control policy implementation and assume a role traditionally reserved for the state - blurring the line between public and private. My purpose here is to provide an analytical history of ERISA that explores its methods of delegating both policymaking control over and the detailed nuances of administration of private pension plans to private actors. I explore the concept of fiduciary status as a safeguard when government outsources the implementation of policy to private actors. Regardless of whether fiduciary standards have ensured sufficient accountability in the ERISA context - and I find that they have not - I argue that the potential is there and analyze where ERISA went wrong