Polarization, Informal Policymaking, and Separation of Powers Politics

• In Event: Legislative Oversight

Abstract

In times of high polarization, Congress faces severe challenges in exerting its policy influence in the separation of powers system. Given supermajority requirements for lawmaking, the ability of congressional majorities to advance their policy interests through the legislative process is substantially stymied during periods of high polarization. Executive branch actors may then be able to promulgate policies through the regulatory process or through unilateral action with little regard for congressional preferences. In this way, Congress may be substantially disadvantaged and their power in the separation of powers system diminished.

In this paper, I argue that Congress has a greater complement of tools at its disposal to direct executive policymaking than this account would suggest, even during periods of ideological fragmentation in Congress and inter-branch policy and political disagreement. In particular, while the ability of congressional majorities to access formal tools that require supermajority votes and/or presidential signatures is indeed diminished during periods of high polarization, they have substantial informal mechanisms of policy direction at their disposal to affect policymaking in the executive branch. These tools, of course, are only imperfect substitutes given that they do not have the force of law. However, as I argue, agencies may nonetheless have incentives to comply with the non-statutory mandates of Congress and empirical evidence suggests that they do.

I use a new dataset derived from non-statutory congressional instructions to agencies in the appropriations process from 1921-2018 to examine these questions. While these instructions are not law, studies have long noted the degree to which agencies nonetheless adhere to their pronouncements because of the repeated nature of interactions between congressional appropriators and agencies, thus making them a good context for studying political dynamics of informal policy tools. I show that congressional majorities utilize these informal instructions to overcome intra-chamber preference heterogeneity as well as inter-branch ideological and political disagreements.

This work contributes to our understanding of both intra- and inter-branch relations in the context of polarized politics and a growing literature that focuses on non-statutory mechanisms for congressional influence in the policymaking process (e.g. through oversight investigations or informal communications between members of Congress and agency officials). While there is little doubt that polarization and ideological fragmentation stymie legislative action, these results suggest that this is not necessarily tantamount to the creation of a legislative power vacuum in a separation of powers system.

Author

• Alexander Bolton, Emory University