A Race for the Regs: Unified Government, Statutory Deadlines, and Federal Agency Rulemaking

• Author: Robert J. McGrath,Jason A. MacDonald
• Published date: 01 May 2019
• DOI: http://doi.org/10.1111/lsq.12228
• Date: 01 May 2019

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LEGISLATIVE STUDIES QUARTERLY, 44, 2, May 2019

DOI: 10.1111/lsq.12228

JASON A. MACDONALD

West Virginia University

ROBERT J. MCGRATH

George Mason University

A Race for the Regs: Unified

Government, Statutory Deadlines, and

Federal Agency Rulemaking

Theory suggests that Congress should delegate more policymaking au-

thority to the bureaucracy under unified government, where lawmakers are less

worried about the president orchestrating “bureaucratic drift.” Yet, all unified

governments come to an end, making broad delegations potentially advanta-

geous to future lawmaking coalitions (“coalitional drift”). We seek to assess how

lawmakers simultaneously limit the risk of each of these pitfalls of delegation.

Our answer is rooted in Congress’s ability to spur agency rulemaking activity

under unified government. Specifically, we expect statutes passed under unified

government to require agencies to issue regulations quickly and for enacting

coalitions to use oversight tools to influence agency policy choices. Such “proxi-

mate oversight” allows coalitions to cement policy decisions before a new elec-

tion changes the configuration of preferences within Congress and the executive

branch. We assess our argument using unique data on both congressional rule-

making deadlines (1995–2014) and the speed with which agencies issue regula-

tions (1997–2014).

Introduct ion

Timing is cr itical to the strategic calculations of politic ians.

Parliamentary governments strategically call elections at times

that they expect w ill maximize future p olitical power (e.g., Lupia

and Strøm 1995). Individual member s of Congress time the ir po-

sition taking to maximize credit for making “easy” votes and to

minim ize costs for making “tough” votes (e.g., Box-Steffensmeier,

Arnold, and Zorn 1997). In addition, congr essional majorities re -

strict the parliamentary rig hts of partisan mi norities only when

© 2018 Washing ton University in St. Louis

346 Jason A. MacDonald and Robert J. McGrath

they expect to stay in the majority for the foreseeable future (e.g.,

Binder 1996). In this article, we arg ue that unif ied congressiona l

majorities seek to pu rsue their policy goals by in fluencing the ti m-

ing of rulemak ing by agencies of the federal bureaucrac y. Simply,

congressional major ities are ephemeral, and this fact should d rive

much congressional str ategy with respect to the bureaucrac y.

Such majorities, especially when they are p artnered with fr iendly

(from a partisan persp ective) presidents, have a strong interest

in taking advantage of their privil eged policyma king positions

while they have them. Th is often means working fast to ensu re

policy implement ation by the bureaucracy before losing power to

political pri ncipals who would direct the bureaucrac y differently.

Building on rec ent research, we identi fy two clear mecha-

nisms by which cong ressional majorities c an inf luence rule

timing: the i mposition of statutory rule making deadl ines and

oversight monitoring to enforce the se deadline s. We expect that

the incentive to acc elerate rulemaki ng exists most strongly during

unified government when relative agreement among partisan al-

lies prioriti zes the need to “lock in” policie s before temporary po-

litical domi nance fades. In addition, u nified govern ment should

make rulema king deadlines more effect ive in spurr ing agency ac-

tion than when there is intra-congressional or i nterbranch policy

conflict. Indeed, we show, using data on public laws from 1995

to 2014, that Congress i s more likely to impose rulemaking dea d-

lines under u nified govern ment. Lawmakers do not stop at these

deadline s. We also show, using data from the Unified Agenda of

Federal Regulatory and De regulatory Actions from 1997 to 2014,

that agencies f inalize r ules more quickly when t here is unif ied

government and that this p attern is acc elerated furthe r by statu-

tory deadli nes. In line with our theory, uni fied governments do in

fact “race” to see reg ulations completed during their reigns, and

agencies largely comply w ith congres sional preferences for speed.

Delegation and its Perils

Congress, li ke all modern legislatures, delegates much p oli-

cymaki ng authority to bureaucr atic agencie s. Yet, since members

of Congress are ulti mately accountable to public p erceptions

(Bianco 1994; Fenno 1978), party goals (Cox and McCubbins

2005; Rohde 1991), and interest g roup priorities (Austin-Smith

and Wright 1994; Wright 1996), members are keen to en sure that

347A Race for the Regs

policies cre ated in the bureaucr acy do not stray far from theirs

and their constitu encies’ preferences. Thus, the principa l-agent

relationship betwee n Congress and the bureaucracy has inspi red

volumes of research, and we now know much about congre ssional

strategies to in fluenc e agency policym aking (Aberbach 1990,

2002; Balla and Deer ing 2013; Dodd and Schott 1979; Kriner

and Schickler 2014; Kriner and Sc hwartz 2008; MacDonald 2010,

2013; McGrath 2013a; Ogul and Rockman 1990; Parker and Dull

20 09).

Lawmakers benef it from bureaucratic exper tise, yet del-

egation can be dangerous for several re asons. First, in providing

agencies with authority, legislators make it possible for agencies

to make different poli cies than lawmakers desire (McCubbins,

Noll, and Weingast 1987, 1989). Delegation, then, may resu lt in

constituents, interest groups, and partie s being less satisf ied with

policy than lawmakers intended. Such “bureaucratic drift” (e.g.,

Shepsle 1992, 113) can prevent delegation from delivering ele c-

toral dividends (e.g., Kiewiet and McCubbins 1991, Chap. 2).

Second, in deleg ating authority, lawmakers risk allowing

political opponents to affect the substanc e of agencies’ policy de -

cisions in the futu re. In particula r, the majority party/lawmak-

ing coalition that enacts a law can lose control of the legislatu re

in the next election and b e replaced by a new majority/coalition.

This new coal ition can overturn prev ious legislation, or, perhaps

more easily, can use oversight and appropriations to d irect fed-

eral agencies to i mplement existing poli cy differently than or igi-

nally intended by the enacting coalition. Such “coal itional drift”

may result in polici es antithetical to the pr iorities of the enacti ng

coalition (Horn and Shepsle 1989; Shepsle 1992).1 What can legi s-

lators do to limit dr ift so that they may take advantage of agenc y

exp ert ise?

Most research on delegation has examined the f irst problem

of bureaucratic drift while, with some exceptions, giving the sec-

ond problem of legislative drift shor t shrift. In th is article, we ad-

dress one mecha nism through whic h lawmaking coal itions may

pursue their pol itical goals through delegation while lim iting

both types of dr ift simultane ously. To do so, we highlight a del-

egation tool that has receive d comparatively little attention—t he

use of deadli nes for agency policyma king. We argue that by ac-

celerating agency a ction through deadl ines, a uni fied lawmak ing

coalition can increase the li kelihood that policie s are final ized