Lawmakers as Lawbreakers

Ittai Bar-Siman-Tov - Columbia Law School

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Judicial review skeptics often emphasize “political safeguards” that are supposed to reduce or eliminate the need for judicial review.1 They also increasingly call for displacing simplistic public-choice-inspired assumptions about legislators with a more sophisticated, political-science-based analysis of legislators’ incentives, which would purportedly lead to greater trust in Congress.2 Responding to these claims, this Essay draws upon theoretical, empirical, and descriptive studies about legislative behavior in order to examine the political safeguards that are thought to motivate lawmakers to engage in self-policing and rule-following behavior. It argues that the political safeguards that scholars and judges commonly rely upon to constrain legislative behavior actually have the opposite effect: these “safeguards” in fact motivate lawmakers to be lawbreakers.

The Essay focuses this examination on the constitutional, statutory, and internal rules that regulate Congress’s legislative process. This largely overlooked body of law is a particularly useful laboratory for evaluating political safeguards claims. First, leading proponents of “political safeguards” arguments view the rules that govern the legislative process as a primary example of an area in which Congress has sufficient incentives to regulate itself.3 Second, and more importantly, these rules are completely insulated from judicial enforcement. Here the questions of how Congress would act in a world without judicial review, and whether lawmakers can be trusted to police themselves, are not merely theoretical. In this unique area of law, legislators are not only the law-makers, but also the law-enforcers, and quite often, law-breakers.

The full Article from which this Essay is derived identifies seven major political safeguards that can be garnered from the legal, political science, political economy, and social psychology scholarship about self policing and rule following, and systematically evaluates each one in turn. It also explores Congress’s capacity to police itself by examining Congress’s enforcement mechanisms and discussing three cases that demonstrate the circumstances under which these mechanisms can fail. This Essay focuses only on some of the major safeguards discussed in the full Article, and presents an abridged version of the argument that these safeguards actually induce lawbreaking rather than law-following behavior.

A. Reelection Motivations and Electoral Controls

There is significant agreement in the congressional decision-making literature that reelection is an important goal for legislators. Hence, proponents of political safeguards arguments claim that the fear from electoral defeat can constrain lawmakers’ behavior.4 For a number of reasons, however, it is highly unlikely that voters will effectively police legislators’ rule-following behavior in the legislative process, or induce reelection-minded legislators to police themselves. First, most rule violations in the legislative process are likely to escape voters’ attention. Indeed, one of the few assumptions about voters’ behavior that is supported by both political economy and political science scholarship, and is consistently corroborated by survey-based studies, is that the vast majority of voters remain largely ignorant of what goes on in the legislative process. Second, even if some rule violations do receive public attention, it is highly unlikely that this information will significantly influence voters’ electoral choices. Furthermore, there is evidence that lawmakers are aware of these two facts, and therefore do not particularly fear electoral retribution when it comes to violating the rules that regulate the legislative process.

Legislators’ belief that voters care much more about policy outcomes than procedural means, and pay much less attention to procedural votes than final votes on the policy, induces lawmakers to use procedural manipulations in order to facilitate passage of unpopular bills while shirking responsibility for their passage. It also creates pressure to violate procedural rules that stand in the way of passing popular legislation which would allow legislators to engage in credit claiming vis-à-vis their constituents. Hence, to the extent that lawmakers’ reelection motivation creates a desire to satisfy constituents, this motivation is much more likely to translate into an incentive to violate the rules than into a deterrent against rule violations.

B. Reelection Motivations and Interest Groups

Some scholars argue that public interest groups can help cure electoral accountability deficiencies, such as voters’ ignorance, indifference, and coordination problems, and thereby ensure the effectiveness of electoral controls.5 However, public interest groups are unlikely to serve as a significant force in the lawmaking rules context. First, because organized voter groups are highly susceptible to free-rider problems that can undermine their effectiveness, such groups tend to focus on specific, narrow, ideological or policy issues. It is therefore unlikely that there are many public interest groups whose agendas focus on ensuring compliance with the procedural rules constraining the legislative process. Second, public interest groups typically have relatively limited financial resources, and monitoring rule violations in the legislative process requires relatively high monitoring costs. Consequently, it is unlikely that these groups will spend their scarce monitoring resources on detecting rule violations in the legislative process.

Special interest groups representing corporate business interests, on the other hand, tend to have greater resources to monitor legislators’ behavior. However, these interest groups are more likely to create an incentive to violate rules than to solve monitoring problems. Indeed, case studies and significant anecdotal evidence suggest that rent-seeking interest groups are often the primary beneficiaries of stealth legislation and irregularities in the legislative process. Thus, to the extent that legislators’ reelection motivation pushes them to cater to the demands of interest groups, this motivation is more likely to produce rule violations than rule following.

C. Policy Motivations

Advocates of greater trust in Congress often base their claim primarily on legislators’ incentive to pursue good public policy.6 This Essay accepts the argument that legislators are not single-minded reelection-seekers, and that ideology and policy motivations have an important impact on congressional decision making. Indeed, ideology and a desire to make good public policy—together with other motivations, such as a desire to be an influential policymaker, to exhibit institutional power and increase one’s prestige, to claim credit and satisfy constituents, and to attract financial support from interest groups—create a powerful incentive to create policy and to pass legislation. However, at least in the lawmaking rules context, this incentive is more likely to produce rule violations than rule following.

Research by political scientists suggests that lawmaking rules can significantly impact policy outcomes, and that legislators are well aware of this important impact. The combination of legislators’ strong incentive to pass policy, the significant impact of lawmaking rules on policy outcomes, and legislators’ knowledge of this impact, leads to the conclusion that policy incentives should have considerable influence on Congress’s enforcement of these rules. When it comes to the lawmaking rules that constrain the legislative process, which by their very nature limit legislators’ ability to translate their policy preferences into legislation, the impact of policy motivations is clear: they create a strong incentive to deviate from the rules.  In fact, descriptive congressional scholarship suggests that the ever-growing ideological polarization and sharp partisan differences on policy only exacerbate this impact. In short, legislators’ policy goals—even if they originate from purely ideological and public-regarding motivations—produce a strong incentive to violate lawmaking rules when such rules stand in the way of their policy preferences.

D. Political Parties and Their Leaders

Some scholars argue that the most promising enforcers of the rules that govern lawmaking are the majority party and its leaders.7 This Essay accepts the claim that political parties have an important impact on congressional decision-making, and that party leaders can influence members’ behavior even when it conflicts with individual legislators’ policy preferences. Indeed, the majority party leaders, especially in the House, are arguably the most influential figures in determining Congress’s compliance with lawmaking rules. The problem, however, is that these party leaders will often have strong incentives to violate the rules.

Congressional parties pursue multiple goals, such as passing items on the party’s agenda, helping members accomplish individual goals, achieving and maintaining majority status, and enhancing the party’s image. All of these goals lead to a powerful motivation to pass legislation. In addition to the obvious collective party goal of passing the party agenda, rank-and-file members often pressure their leaders to enact legislation because it serves their personal policy and reelection goals. The party goals of maintaining majority status and enhancing party image also depend, to a significant extent, upon the party’s success in enacting the legislative program on which it was elected and on fostering a distinct “party label” in terms of the policies for which the party stands.

The combination of these goals creates strong pressures on majority party leaders to pass legislation and to push through the party’s legislative agenda. These pressures result not only from incentives that parties create to induce their leaders to internalize the collective goals of the party, but also from party leaders’ personal goals. Although legislative leaders have the same personal goals that motivate other legislators, the desire for power and prestige tend to be particularly pronounced in congressional and party leaders. Much more than in the case of rank-and-file members, legislative leaders’ personal prestige often hinges on winning legislative victories. These leaders’ goal to appear effective and successful in passing the party policy agenda creates a strong incentive to pass legislation. Hence, party leaders have considerable power and incentives to violate rules that impede the passage of the majority party’s agenda.

The 2003 Medicare Bill provides a clear example.8 Passing this bill was a top priority for the majority party and its leaders. Consequently, they employed a variety of strategies to pass the bill, including exclusion of minority party members from the House-Senate conference committee and insertion of major provisions that were rejected during earlier floor debates into the conference report. There were even allegations that the majority party leaders tried to secure the necessary votes for passing this bill through threats and bribes. Finally, when following the established voting procedure would have meant defeat of the bill, House leaders simply, and blatantly, breached it.

The case of the Deficit Reduction Act of 2005 illustrates, moreover, that party interests may create strong incentives to violate even constitutional rules.9 In this case, it was discovered that the bill did not pass both chambers in the same form, as mandated by the Constitution. Given the difficulty of passing this bill in the first place—passing the House by a 216-214 vote and the Senate through the Vice President’s tie-breaking vote—majority party leaders decided not to take the risk that the bill would not pass another vote. Instead, the legislative leaders simply ignored the constitutional bicameralism requirement and signed the bill in attestation that it was duly enacted, despite their knowledge that the bill was never passed in identical form by both chambers.

Conclusion

Hans Linde was correct in his observation that “[o]ther participants than courts have the opportunity, and the obligation, to insist on legality in lawmaking.”10 Duty and opportunity, however, are not enough. Congress’s incentives to enforce the law of congressional lawmaking upon itself are lacking.

This refutes the assumption that political safeguards can obviate the need for judicial review, at least in the procedural lawmaking rules context. This does not mean that judicial enforcement of these rules is necessarily the proper solution. The impact of judicial review on legislative rule-following behavior, and the other costs and benefits of judicial oversight, remain to be examined. The starting point for any such examination, however, is the recognition that Congress cannot police itself.

Acknowledgments

Ittai Bar-Siman-Tov is an Associate-in-Law, Morris Fellow, and Fulbright Scholar at Columbia Law School.

A version of this article appeared in the December 2010 issue of the William and Mary Law Review: Ittai Bar-Siman-Tov, Lawmakers as Lawbreakers, 53 WM. & MARY L. REV. 805 (2010).

Copyright © 2010 William and Mary Law Review.

  1. For an overview of the “political safeguards” debate see, for example, Robert A. Mikos, The Populist Safeguards of Federalism, 68 OHIO ST. L.J. 1669, 1670-71 & n. 2-6 (2007).
  2. E.g., Elizabeth Garrett & Adrian Vermeule, Institutional Design of a Thayerian Congress, 50 DUKE L.J. 1277, 1286-90 (2001); Barbara Sinclair, Can Congress Be Trusted with the Constitution? The Effects of Incentives and Procedures, in CONGRESS AND THE CONSTITUTION 293, 294-97 (Neal Devins & Keith E. Whittington eds., 2005); Mark Tushnet, Interpretation in Legislatures and Courts: Incentives and Institutional Design, in THE LEAST EXAMINED BRANCH: THE ROLE OF LEGISLATURES IN THE CONSTITUTIONAL STATE 355, 356 (Richard W. Bauman & Tsvi Kahana eds., 2006).
  3. Jesse H. Choper, The Political Question Doctrine: Suggested Criteria, 54 DUKE L.J. 1457, 1505-07 (2005).
  4. See Tushnet, supra note 2, at 361; cf. Frederick Schauer, Legislatures as Rule Followers, in THE LEAST EXAMINED BRANCH, supra note 2, at 468, 468-69.
  5. James M. Snyder Jr. & Michael M. Ting, Interest Groups and the Electoral Control of Politicians, 92 J. PUB. ECON. 482, 483 (2008).
  6. See, e.g., Sinclair, supra note 2, at 294-96.
  7. See, e.g., Gary W. Cox, On the Effects of Legislative Rules, 25 LEGIS. STUD. Q. 169, 172 (2000).
  8. THOMAS E. MANN & NORMAN J. ORNSTEIN, THE BROKEN BRANCH: HOW CONGRESS IS FAILING AMERICA AND HOW TO GET IT BACK ON TRACK 1-2 (2008).
  9. Ittai Bar-Siman-Tov, Legislative Supremacy in the United States?: Rethinking the Enrolled Bill Doctrine, 97 GEO. L.J. 323, 332 (2009).
  10. Hans A. Linde, Due Process of Lawmaking, 55 NEB. L. REV. 197, 243-44 (1976).

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