Legislation Outline

Legislation, Spring 2009                                 Petroski                                              
 
 
Models of Legislative Process and Introduction
 
 
–          Descriptive and Normative Theories of Legislation
o       Descriptive theories: purport to summarize and describe how the process of making statutes actually works
o       Normative theories: offer an account of how the process ought to work.
o       People like to prove that the system works the way they think it should work, so their normative values sneak into their descriptions of what actually happens.
o       For each school of thought, try to focus on what is descriptive and what is normative!
–          Interest Group Theories or Legislation
o       Pluralism: (1950’s-60’s), political power is broadly diffused in American society.
§         Interest groups have a significant role-descriptively important and normatively possible.
·         Views the prevalence, strength, and diversity of interest groups as a sign of political health.
§         The ideal pluralist system is one where organized interests emerge in every sector of our lives and adequately represent most of those sectors, so that one organized group can be found effectively answering and checking some other organized group as it seeks to prosecute its claim against society.
§         The role of the legislature is to ratify agreements and adjustments worked out among competing groups.
§         Can think of elected official jobs as merely determining the result of interest group conflict and implementing it.
·         The legislative vote tends to then represent the composition of strength, i.e. the balance of power among the contending groups.
·         The equilibrium reached by groups is equal to public policy!
§         The result of a pluralistic society will be moderate and well considered policies, which would result from finding a medium/compromising position among groups.
o       Public Choice Theory
§         Public choice school is an account that continues to emphasize the role of organized interest groups in politics and affecting legislatures, but which suggests a more negative normative assessment of interest groups
§         Public Choice theorists: Apply economic models to political phenomena and decision-making
·         Demand: Interests groups are the demanders of legislation
·         Supply: Desire for reelection. To get re-elected, you need votes and money. What will attract votes may not attract political money. Politicians raise money from groups w/ concentrated interests at stake: either offer concentrated benefits or threat concentrated consists and you’ll get interest groups to fund you.
§         Questions whether all voices are actually heard and whether all have equal access to the legislative process
§         Argue that business interests are advantaged in this game at expense of larger public interest and groups representing the less advantaged
§         Olsen, The Logic of Collective Action
·         Thinks of legislation as a public good. Once the state has decided to provide clean air for its citizens, all in society will benefit. Yet, any individual effort to pass such a law will have only a minute effect on the probability of its enactment. Thus, a rationale person will not participate in the political process of enactment at all, preferring instead to free-ride on the efforts.
·         If all citizens are rationale, then none will work to influence her representative to pass legislation providing diffuse benefits to the public at large.
·         Thus, the formation of large groups will be virtually impossible, while small groups will form instead. This shows the threat minority factions pose to the public good.
§         Proper role for a judge under a public choice view?
·         (1) Job of a judge is to identify outlines of deal made between competing groups and enforce the deal. This is the more passive version.
·         (2) Interpret rent-seeking provisions (the deals) as narrowly as possible, or simply refuse to enforce the rent-seeking provisions. This is the more active version.
§         Criticisms of public choice theory
·         If you believe public choice theory, it’s not economically rational to vote. Since ppl vote, there must be non-economic values at stake
·         Over simplification of the political process
·         Money and organization do not always translate into clout
·         Legislators are interested in more than simply being reelected
·         Disregards institutional changes that affect behavior
·         Doesn’t consider the affect of the President on legislative behavior
·         Assumes that preferences are independent of and prior to political activity: Participating in decision-making can affect the way a person thinks and feels about a particular issue.
o       Proceduralist theories
§         Madison’s concern was that direct democracy would produce unwise legislation and he was concerned about factions, which he thought would create unwise legislation. 
§         As a result, we have a # of procedures (bicameralism, representative democracy, checks and balances, etc.) to help limit the amount of legislation that would make it difficult to pass new laws, and thus limit radical and sweeping changes.
§         Vetogates: At each stage in the legislative process, a proposal can be changed or halted, new coalitions must be formed, and opportunities for logrolling, strategic behavior and deliberation are presented. 
·         Because people that control each of these choke points has the ability to kill a proposal, they are called vetogates.
§         Different vetogates
·         Constitutional prohibitions
o       Art I, § 7: bicameralism and presentment
o       Need 2/3 vote to override presidential veto and to expel a member from house
·         Formal rules in each house
o       Some rules impose supermajority voting requirements on certain congressional actions.
·         Informal norms and practices (Congressional usage)
o       Seniority norms
o       Committee structure
§         Civic Republicans
·         Emphasizes that legislative politics can and should seek to foster a deliberative process that seeks to slow down and improve legislation. 
·         Pushes legislators to argue and deliberate before making law b/c such would tend to create better laws that will help the public.
·         This is better than public choice idea which says that people’s interests are fixed and they will push these ideas on legislators. Civic republicans say no, legislators can educate voters through debate.
§         How would a Civic Republican judge interpret a statute?? 2 ways
·         Judge might assume the best b/c he assumes that legislators did their job and deliberated and served public interest. More passive. OR
·         Judge might say it is his job to figure out if Congress did good and based on this answer, choose to interpret statute narrowly or broadly, depending on answer. These judges see themselves as fixing the process (if it wasn’t done well at first). Of course, question arises as to whether judges are competent to do this. More active role.
o       Institutionalist theories
§         Laws are made through interaction of various inst