Legislatures and Statutory Control of Bureaucracy

Abstract

Existing theories of legislative delegation to bureaucracies typically focus on a single legislature, often the U.S. Congress. We argue that this parochial focus has important limitations. If one contends that politicians respond rationally to their political environment when adopting strategies for controlling bureaucrats, then theories of control should be able to explain how differences in the political environment-and in particular in the democratic institutional arrangements that shape this environment-influence strategies for controlling bureaucrats. We offer such a theory about the conditions under which legislatures should rely on statutory control (i.e., detailed legislation) in order to limit the discretion of agencies. The theory focuses on the interactions of four factors: conflict between legislators and bureaucrats, the bargaining costs associated with choosing the institutions for controlling bureaucrats, the professional capacity of legislators to create institutions for control, and the impact of political institutions on the relative costs and benefits of statutory and nonstatutory strategies of control. We test our argument using legislation from 1995 and 1996 that affects Medicaid programs. The results show that legislatures are more likely to make use of statutory controls when control of government is divided between the two parties, the two chambers of the legislature are unified in their opposition to the executive, the legislature is more professionalized, and the legislature does not have easily available options for nonstatutory control. ureaucratic involvement in policymaking is a pervasive condition of modern political life. Bureaucracies implement policies that legislatures have enacted, and they create policies where legislatures have avoided doing so. They can act to regulate industries, to distribute benefits and costs, and to redistribute wealth. They tackle policy areas as disparate as telecommunications, the environment, transportation, and public health. Given the pervasiveness of bureaucratic activity, it is not surprising that political scientists long have sought to understand the relationship between legislatures and agencies. Understanding this relationship is essential to democratic theory, as it focuses attention on the legitimacy of the role played by unelected policymakers in a representative democracy. Furthermore, it sheds light on the actions, abilities, and motivations of legislators. Thus, scholars have attempted to ascertain whether, to what extent, and under what conditions legislators influence the actions of agencies. Much of the focus of this research has been on the U.S. Congress, and much of the debate has centered on the question of whether in fact Congress controls the bureaucracy. This is a difficult question to answer, as it requires fairly precise information on legislator preferences and agency outputs. But while settling the empirical issue has been difficult, in addressing this question scholars have clarified several strategies for control, including the use of budget processes (e.g., Banks 1989; Bendor, Taylor, and Van Gaalen 1987), ongoing oversight (e.g., Aberbach 1990), and statutory control, whereby legislators use legislation to influence agency decisions.