7 Gridlock, Bureaucratic Control, and Nonstatutory Policymaking in Congress

7.1 Abstract

Increasing ideological polarization and dysfunction in Congress raise questions about whether and how Congress remains capable of constraining the activities of other actors in the separation of powers system. In this article, I argue Congress uses nonstatutory policymaking tools to overcome the burdens of legislative gridlock in an increasingly polarized time to constrain executive branch actors. I leverage a new data set of committee reports issued by the House and Senate appropriations committees from fiscal years 1923 through 2019 to empirically explore these dynamics and evaluate my argument. Traditionally, these reports are a primary vehicle through which Congress directs agency policymaking in the appropriations process. Committees increasingly turn to them when passing legislation is most difficult and interbranch agency problems are most pronounced. In this way, nonstatutory mechanisms may help maintain the balance of power across branches, even when Congress faces gridlock-induced incapacity

国会中持续恶化的政治极化和机能障碍让人们怀疑，在分权系统中，国会是否还能影响其他政治主体。我认为国会使用了非法定的政策制定工具，克服政治极化时期中的立法障碍，以影响行政主体。我利用众议院和参议院拨款委员会从1923至2019财年发布的委员会报告的新数据集，实证地探索这些动态过程，并评估我的论点。传统上，这些报告是国会在拨款过程中指导机构决策的主要手段。在通过立法最困难、机构间问题最突出的时候，委员会越来越多地求助于这些报告。这样一来，即使是在国会面临僵局无能为力的时候，非法定机制可以帮助维持各部门之间的权力平衡。

7.2 Intro

理论上，国会中意见的极化使得国会作为一个政治实体，影响行政机构的能力大大下降了。这有违分权制衡原则。

Yet, empirical patterns of executive policymaking suggest agencies and presidents are at least somewhat responsive to congressional preferences, even in recent decades when polarization is high

解释：非法定方式

I focus on nonstatutory means Congress possesses to direct or discipline the executive branch, that is, policy instruments that influence executive policy choices but are not statutes.

案例：两院拨款委员会的报告、法律如何影响执行机构

I explore the dynamics of nonstatutory control by focusing on the House and Senate Appropriations Committees and their use of reports accompanying their legislation to direct the activities of the executive branch. Traditionally, policy directives to agencies from appropriators appear in this form rather than in statutes.

  1. 这些报告不需要经过任何机构的审核批准，因此是拨款者同执行机构沟通的有效工具，同时避开了立法问题
  2. 可能解释：重复博弈下，执行机构有强激励服从 Drawing on the logic of repeated play, I argue agencies have strong incentives to be scrupulous in their adherence to them

发生情况

  1. First, interbranch agency problems, which arise when Congress and the executive do not share policy and political goals, should impel congressional actors to pursue control over the executive branch
  2. when Congress is highly gridlocked given that nonstatutory tools are not affected in the same way as legislation by gridlock
  3. the impacts of gridlock and interbranch conflict on nonstatutory policymaking are interactive

发现

The appropriations committees write substantially longer reports with more constraining provisions when the executive branch is controlled by the opposite party and when gridlock in Congress is relatively high

7.3 The Politics of Nonstatutory Control

7.3.1 Delegation, Gridlock and Political Control of the Bureaucracy

国会和政府之间的principle-agent problem一般通过法定方式解决

statute-based control mechanisms are less useful in times when there is substantial gridlock in Congress.

ideological fragmentation and supermajoritarian lawmaking institutions act together to stymie the efforts of legislative majorities to change status quo policies

7.3.2 Nonstatutory Tools of Control

the political and institutional constraints on congressional lawmaking power impel it to use nonstatutory mechanisms of executive control

Because nonstatutory control tools are not legally enforceable, their efficacy in bringing about responsiveness to Congress relies on exploiting other incentives that drive bureaucratic behavior.

  • repeated interactions between the agency and principals in Congress
  • Congress has tools in its arsenal to unilaterally impose costs on recalcitrant agencies

Benefits of nonstatutory tools/Two conditions

  • overcomes gridlock concerns
  • overcome the interbranch agency problems

7.4 Nonstatutory Control in Previous Work

Previous work on nonstatutory control of the bureaucracy has primarily focused on the role of oversight, such as through hearings, investigations, and back-channel communications with agencies

  • hearings & investigations: costly
  • back0channel communications: weak

7.5 Nonstatutory Control and the Appropriations Process

the issuance of reports accompanying the legislation

Traditionally, the texts of appropriations laws are spare

appropriators include specific policy instructions for agencies in these accompanying reports

The existing literature has long noted that agencies take care to comply with committee directives.

Appropriations Committees

  • Members of the appropriations committees tend to be long-serving, and subcommittee chairs often return to the helm even after their party has been out of power
  • have all of the tools discussed above (e.g., costly oversight, onerous document requests, agenda control, ability to limit dis- cretion) at their disposal to impose costs on noncompliant agencies as needed
  • Though reports are approved by the full appropriations committee, they are primarily written by the staffs of the relevant subcommittees under the direction of their chairs, who are often referred to as “cardinals” be- cause of the authority they wield

7.6 Data and Research Design

a new data set of appropriations committee reports that accompanied legislation from the House and Senate appropriations committees for FY 1923 through FY 2019

  • 49 congresses

DV

  • the report length in words
    • overinclusive
    • log-rolling and universalism under gridlock
      • addressed
        • 长度解决意见分歧问题？no
        • Content Analysis
          • 长度和限制数量正相关
  • Alternative dependent variable: constraints (Cronbach’s α = 0.94)
    • reports
    • deadlines
    • notification
  • Contstraint Index

IV

  • Interbranch agency problems
    • Partisan-based measure: 0 when the presidency and chamber majority are controlled by the same party or 1 otherwise
    • the absolute distance between the DW-NOMINATE12 Common Space scores of the subcommittee chair producing the report and the president (Chair-President Distance)
    • the distance between the president and the full appropriations committee median
  • Gridlock
    • DW-NOMINATE scores to calculate equilibrium gridlock intervals for each Congress based on Krehbiel

Control variables: fixed effects for subcommittee-chair pairs, global time trend, committee-chair-specific time trends, bill amount, when a committee is evenly divided between the Republicans and Democrats, years in which the House and Senate are con- trolled by different parties, earmark ban, the final Congress, an indicator for years in which the reports are written after the passage of the Legislative Reorganization Act of 1946, an indicator variable for reports written af- ter Republicans took control of the House and Senate in the 1994 midterm elections (Post-Gingrich)

Model: OLS (robust standard errors clustered at the level of Congress-chamber pair)

7.7 Results

When gridlock is low, I estimate an insignificant relationship between Interbranch Division and the Constraint Index.

However, at higher levels of gridlock, the estimated marginal effect of Interbranch Division is positive and statistically signif- icant.

7.7.1 Robustness

7.8 Discussion and Conclusion

Congress is not altogether helpless in the face of increasing gridlock and can cope (at least in part) by using nonstatutory means to direct agencies.

This argument yields predictions about when specifically committees will use nonstatutory mechanisms of control to constrain and direct executive policymaking.

7.9 评价

文章发现：当Committee和Government的意见不一致，且国会分裂程度高时，Committees将使用无法定效力的方法影响政府。（reports in this article）。交互效应做的特别漂亮。IV和DV的衡量可以学习。

问题

  1. 作者对「政府是否服从」这一问题的回答依然是猜测性的。repeated game和costly hearing都未被证实

  1. https://en.wikipedia.org/wiki/NOMINATE_(scaling_method)↩︎

  2. https://legacy.voteview.com/dwnomin_joint_house_and_senate.htm2 ↩︎