Fragmented Political Structures and Fragmented Law

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V. Fragmented Authority and American Legislative Exceptionalism

This principal-agent theory does seem to explain the hyper-complexity of Congressional statutes in the United States. American government approximates a “perfect storm” of all the constitutional and political factors that fragment law-making and law-implementing authority which enhances the “agency problem” for Congressional lawmakers, and therefore encourages them to build as much specificity as possible into the statutes they enact. Let me illustrate the impact of each structural factor :

1. Separation of powers. The U.S. Constitution makes the president and Congress co-equal branches of government. The American Congress, in consequence, is what political scientist Nelson Polsby [29] labeled a “transformational” legislature well-staffed, accustomed to substantially reworking and changing proposed legislation submitted by the President and executive branch bureaucracies. Congress often passes laws that the president disagrees with, at least in part.

In addition, separate electoral contests for Congress and the President often result in politically divided government. The immensely detailed major air and water pollution control statutes, mentioned above, were first enacted in 1970 and 1972 by a Democratic Party majority in Congress. The laws were to be implemented, however, by a Republican president Richard M. Nixon and by the Environmental Protection Agency (EPA), whose current heads were Republican political appointees. Congressional lawmakers, therefore, feared that the agency would bend to industry’s wishes in making and enforcing regulations. So Congress wrote into the statutes many specific, judicially-enforceable provisions, both substantive and procedural. Moreover, for the Congressional Democrats, more specific statutory rules would provide some assurance that the federal judiciary, staffed partly with Republican judges appointed by Republican presidents (as well as with Democratic judges appointed by Democratic presidents), would reliably police an environmental agency that might be inclined to subvert the Congressional Democrats’ statutory purposes.

2. Federalism also fragments power and intensifies Congress’s agency problem. In formulating the Clean Air and Clean Water Acts, for example, traditions of federalism induced Congress to delegate a great deal of anti-pollution law implementation and enforcement authority to state and local environmental agencies. These agencies are structurally and politically independent of the federal government. Environmental advocates in Congress worried that many local agencies would be understaffed or pressured by local industries and labor unions to moderate the laws’ demands. So here too, Congress dealt with the “agency problem” by legislating many judicially-enforceable, prescriptive rules, deadlines and reporting procedures.

3. Politicized Agencies and Courts . American legislatures’ agency problem is further exacerbated by the fact American judiciaries and governmental agency heads are selected for partisan political reasons. This has long been the case. In 19^th Century United States, decentralized, fragmented government encouraged the development of political parties held together by the dispensation of patronage to partisan supporters rather than by cohesive ideology. Hence professional national governmental bureaucracies were slower to develop in the United States than in Europe [30]. Even today, in U.S. federal executive branch departments, not only the cabinet secretary but two or three bureaucratic layers of under-secretaries, assistant secretaries, and deputy assistant secretaries are replaced, by and large, each time a president from a different political party is elected. The same is true for the numerous federal regulatory agencies. This increases the legislative majority’s incentives to “lock in” its policy preferences with detailed statutory provisions designed to constrain and check administrative discretion.

The American method of selecting and promoting judges also emphasizes political responsiveness more than legal reliability. In most European countries, judges are selected and promoted, by and large, in a non-partisan manner, on the basis of their adherence to norms of legal craftsmanship. Most American judges, in contrast, are appointed or nominated for election on the basis of the political commitments they have demonstrated in their prior careers as lawyers. In many American states, both lower court and high court judges are selected in popular elections. In other states and in the federal system, judges are appointed, but partisan politics plays a very prominent role in selection. Comparing American judges to British judges, Atiyah and Summers note that the American judge is more likely to rely on her own judgment to reach a result that she thinks is legally just and proper [31]. And what the judge thinks is legally just and proper will often be influenced by her political party background. Thus in controversial statutory-interpretation cases in U.S. Courts of Appeal, decisions by Democratic judges very often differ from those of Republican judges [32]. For the American legislator, therefore, the judiciary is a somewhat unreliable agent for implementing generally-worded statutory provisions. More specific statutory language has a better chance of ensuring judges will follow the legislator’s intent.

4. Weak Political Party Discipline. Fragmentation of power in political parties also helps explain statutory complexity. In late 2008, American voters elected the Democratic Party’s candidate, Barack Obama, as President, and gave the Democratic Party a strong majority in both houses of Congress. During the campaign, Obama repeatedly promised legislation that would guarantee the health care insurance for all Americans. But despite his position as leader of the Democratic Party, President Obama and his cabinet did not draft the proposed legislation. Nine months after taking office, as this conference is taking place, five different proposed laws, each about 1000 pages long, are emerging from five different House and Senate committees, each dominated by Democrats. Some of the bills, although drafted by Democratic legislators, explicitly exclude certain provisions that President Obama has asserted are essential. Other bills contain provisions that some Democratic congressmen and senators have said they will not vote for. At the time of this conference, it is still not clear what will happen.

The health care legislation saga illustrates how difficult it is for American political party leaders to mobilize legislators in their own party to enact the party’s legislative program. Over the last two decades, political party control over “back benchers” has actually increased [33], but party discipline remains weak in the U.S. compared to most parliamentary systems. Most significant Congressional statutes must be painfully stitched together by assembling issue-specific coalitions of legislators. As Atiyah and Summers [34] put it, due to the absence of powerful party leaders who command party loyalty on all legislative issues, “in place of identifiable consistent voting blocks, there is a multitude of floating, ever-changing coalitions around specific issues”. Party leaders often can gather majority votes for their bills only by adding to the law a number of precisely-worded amendments, exceptions, special benefits, and procedural provisions that have been demanded by various interest groups and members of Congress. Legislation, in consequence, expands in length and complexity, while simultaneously including purposely ambiguous standards that paper-over political disagreements [35].
The comparatively weak discipline of American parties has numerous causes. First, legislators are elected not via proportional representation, but via winner-take-all voting in local electoral districts; this tends to tie individual legislators to the preferences of their local constituencies, which may conflict with national party platforms. Second, candidate-selection often occurs through intra-party primary elections in which voter turnout often is low; this further increases the possibility that the candidates chosen will differ from the national party leadership on many issues. Third, the campaign finance system for Congressional races emphasizes private fund-raising by individual candidates to a far greater extent than financial support from the national party; individual candidates, consequently, face strong pressures to give priority to the concerns of their donors rather than to the policy preferences of national party leaders. Fourth, the committee-structure in both houses of the legislature delegates substantial influence to a multitude of committee and subcommittee chairs; this multiplies the points of access and influence by lobbyists representing particular localities, industries, and ideological groups, each arguing for specific statutory benefits or protections. Fifth, the American two-party system leads political parties to devise appeals to an ever-wider range of social groups who may have divergent interests on many issues [36].

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