Legislation Outline

Legislation
Leib Spring ‘10

THEORIES OF THE LEGISLATIVE PROCESS

I. Pluralist Theories (the role of interest groups in policy making)

A. Descriptive
1. citizens organize into groups for political action (“factions”)
2. interest group politics results in “pluralism”—the spreading of political power across many political actors.
3. politics can be conceptualized as the process by which conflicting interest group desires are resolved.

B. Interest Group Liberalism: Pluralism as a positive political force.
1. Rather than fear factions, we now rely on large, organized groups to play a large role in the political process.
a. Political parties provide a structure for governance and information for voters
b. churchs, unions, may become involved in politics as a secondary matter to improve their members’ lives.
2. Theodore Lowi see the prevalence, strength, and diversity of interest groups as a sign of political health. The groups act as checks against each other. Constituents may use interest groups to signal the intensity of their preferences is a way not possible by voting.
3. Main benefits of Pluralism:
a. Interest groups may protect us from a strong and tyrannical gov’t
b. the result of a robustly pluralist system will be moderate and well-considered policies.
c. Interest groups represent the most meaningful possibility of participation by individual citizens.

C. Public Choice Theory: Interest Groups as Pernicious Political Influences
1. Their may be disparate access to the political process; business voices are overrepresented and the broad public interest and the less advantaged are underrepresented.
2. See CHART BELOW; If concentrated benefits/distributed costs, argue that the state should be interpreted narrowly to protect the public interest, if text is ambiguous.

D. Interest Group Theories: Explanation and Critique
1. Public choice theory explains the success of “distributive policies” that pass out goodies to many interests at the same time: such as tax bills that offer loopholes to many groups, defense appropriation bills that send $ to many districts, etc. Here, the “losers” may not even be alive, if deficit-spending is used to put the burden on future generations.
2. Regulatory Policies—these cause groups to fight over a single prize (EX: winning a television channel permit)
3. Redistributive Policies—similar to Redistributive policies, but the classes are much bigger (e.g., rich v. poor)
4. CRITIQUE
a. Not all legislators are “rent-seekers” looking for financial rewards from special interest groups; they have independent beliefs and legislative goals.
b. Interest group $ may be more effective at electing members who share their beliefs than changing lawmakers’ minds
c. Interest groups are better at blocking legislation than passing it, and are more effective w/ legislation that has low visibility than when legislation is well known.

Public Choice Theory

Distributed Benefits/Distributed Costs
Majoritarian Politics

DEMAND
Little group activity, some large groups of unorganized citizens will support benefits (clean air legislation) or fight costs (tax increases)

SUPPLY
-Often no bill or symbolic action b/c nobody fights for or against
-May pass burden off to agency

INTERPRETIVE STRATEGIES
Danger: Laws are usually in the public interest, but legislature doesn’t always update as society/underlying problems change
Response: Courts can expand law to new situations and develop in CL fashion (subject to limits imposed by statutory text)

Distributed Benefits/Concentrated Costs
Entrepreneurial Politics

DEMAND
-General benefit from specific taxation
-Majority imposing its will on the minority
-Opposition usually well organized
-Must rouse inattentive public to support

SUPPLY
-Draft ambiguous bill and pass off to agency interpretation b/c of organized opposition
-“victory” all around

INTERPRETIVE STRATEGIES
Danger: Regulated groups tend to evade their duties and may try to influence agency created to administer law
Response:
-Courts can monitor agency enforcement and private compliance
-Courts can create procedures to assure other groups are heard
-Courts can put pressure on agency to be faithful to law.

Concentrated Benefits/Distributed Costs
Client Politics

DEMAND
-Strong interest group support/Weak opposition
-Too difficult to fight against/Logrolling

SUPPLY
-Costs allocated to uninformed public→legislature will distribute subsidies and power to organized beneficiaries
-Policy is often self regulation

INTERPRETIVE STRATEGIES
Danger:
Rent-seeking by special interest groups at the expense of the public

Response:
Courts should construe statutes narrowly to avoid unwarranted benefits. Ensure statute lives up to public-regarding justifications

Concentrated Benefits/Concentrated Costs
Conflictual Interest Group Politics

DEMAND
-Produces immediate/identifiable winners/losers -Well organized on both sides

SUPPLY
-Favor no bill or delegation to an agency b/c this is a no win situation

INTERPRETIVE STRATEGIES
Danger:
Statutory balance/deal may grow unexpectedly lopsided over time

Response:
Judiciary should not attempt to make major updates unless interest groups are unable to get legislature’s attention

II. Proceduralist Theories (emphasizing the many obstacles a bill must pass to become law)

A. “Vetogates”—determined minorities can kill or maim legislation. Whoever controls these choke points has the power to kill legislation.
1. EX: committees, conference committees, rules
2. Theories of a committee’s purpose
a. Informational role: committees are part of an efficient congressional organization. Monitoring by the general body to ensure that the committee is acting as a faithful agent of the whole is less costly than developing expertise on every issue.
b. Rent-Seeking: the committees distribute unjustified benefits to interest groups. Members are extremist outliers that have strong ties to the area (EX: rural members on the Agriculture Committee) so committees are more extreme than the whole body, and they seek to pass legislation that benefits small and active groups at the expense of the public good.
c. Tools of the Majority Party: the committee organization provides an organization that enables most majority-party members to be reelected and permits the majority party to remain in Congress. (EX: the majority party allows rural Senators to be on the Ag committee, so their constituents are pleased and re-elect them; those member then return the favor.)
3. Generally, it is easier to block legislation in the Senate than in the House, b/c the Senate has less rules (EX: filibuster).
4. Vetogates are critical b/c the cts often rule that the statements that are made by gatekeepers (e.g., committee members) as reflective of the intent of the body b/c their support is critical to passage.
a. But are these statements true, or are speakers shading the truth?

B. Liberal theory disfavoring gov’t intervention—statutes should be hard to enact.
a. Hamilton, in Federalist Papers #73, said that proceduralism is “an additional security against the [enactment] of improper laws.
b. BUT, some say that this is simply a preference for the status quo regulatory regime (common law) vs. a legislative change (statue); this is not a neutral preference.
C. BUT, this proceduralism will slow good laws as well as bad ones (e.g., the Civil Rights Act)

C. The Deliberative Value of Process—proceduralism is a tool to encourage public deliberation about legislative proposals.
a. Proceduralism slows bills down and offers the opportunity for deliberation, but does not necessarily guarantee it.
D. Alternatives:
Direct democracy (petitionà ballot item voted on by people (we have this in CA))
Less deliberation here though.
Better campaign finance rules to keep special interests from accessing/influencing committee members
Most nodes of the vetogates model are not constitutional, but self generates
Committees and filibusters are not required by const.

Three modes of representation
– Trustee model—you’ve been given the discretion to do what you think is best for the polity at large (more aristocratic) (senate more trustee—longer terms, house more agency/descriptive?)
– Agency/Delegate model—to do only what authorized to do by constituency, or what they would do if they were in your shoes (term limits, recall, devices to insure representation in this style)
– Descriptive model—mirror the whole, microcosm of the whole.
What descriptors (race, class, sex, what else)?

Deliberative engagement as a way of framing the dialogue: representative has a “code of ethics” and constituents have a basis for bringing discussion that doesn’t terminate in threats to vote out

III. Institutional Theories (These theories focus on the institutions (instead of the players) that shape the structure of the interactions).

A. The Effect of Institutions on Decision-making
1. “majority vote cycling”—majority rule sometimes cannot resolve the choice among three or more mutually exclusive alternatives that are voted on in pairs.
a. This is solved by “structure-induced equilibria,”