American Political Science Review (2018)112.4.874-890 doi:10.1017/S0003055418000497 American Political Science Association 2018 6 Who Polices the Administrative State? KENNETH LOWANDE University of Michigan cholarship on oversight of the bureaucracy typically conceives of legislatures as unitary actors.But most oversight is conducted by individual legislators who contact agencies directly.I acquire the correspondence logs of 16 bureaucratic agencies and re-evaluate the conventional proposition that ideological disagreement drives oversight.I identify the effect of this disagreement by exploiting the tran- sition from George Bush to Barack Obama,which shifted the ideological orientation of agencies through turnover in agency personnel.Contrary to existing research,I find ideological conflict has a negligible ef- fect on oversight,whereas committee roles and narrow district interests are primary drivers.The findings may indicate that absent incentives induced by public auditing,legislator behavior is driven by policy valence concerns rather than ideology.The results further suggest collective action in Congress may pose greater obstacles to bureaucratic oversight than previously thought. "those kind of informal,[...official contacts-they go on study documents informal comments and inquiries almost incessantly." conducted by individual legislators. Former congressional aide This type of oversight is both more frequent than interview with author formalized hearings and concerns consequential public policy (Lowande,forthcoming).Prior to the 2014 Vet- onitoring unelected officials implementing erans Affairs(VA)wait-time scandal,legislators made public policy is a chief concern in demo- inquiries about VA health system record-keeping cratic government.By overseeing that procedures that prefigured the problems to come.Their 4号元 process, elected officials aim to prevent shirking, inquiries eventually led to a de facto nationwide review corruption,performance failures,and policy drift of these procedures.After the enactment of the Dodd- in bureaucracies.Not surprisingly,questions about Frank Act,legislators forwarded hundreds of concern the efficacy of this oversight has generated a vast letters to the financial regulators required to approve body of theoretical and empirical research.I ad- the controversial Volcker Rule.When amendments to vance this work by analyzing records of over 50,000 the Plutonium Management Disposition Agreement oversight contacts between members of Congress between the US and Russia to dispose of 68 metric and bureaucratic agencies.These new data reveal tons of weapons-grade material were signed in 2010, activity long-theorized about,but rarely observed.In Congress did not weigh in with legislation.Instead,leg- an influential article on bureaucratic accountability, islators contacted the Department of Energy(DOE) 是 McCubbins and Schwartz (1984)argue members of to inquire about the construction of disposal facilities, Congress use administrative procedures to set up the implementation timeline,and verification proce- "fire alarms"for agency misbehavior,which allow dures.In a policymaking environment with executives them to avoid performing costly "police-patrols."2 increasingly at the center,legislative representatives While scholars have analyzed published oversight rely on contacts like these to police agency behavior. hearings(Aberbach 1990;McGrath 2013;MacDonald These data provide leverage to test a conventional and McGrath 2016:Kriner and Schickler 2016),this proposition in existing research:that ideological dis- agreement with agencies drives the oversight behavior of legislators.The assumption that agencies have pref- erences of their own that sometimes differ from those Kenneth Lowande is an Assistant Professor,Department of Political Science,University of Michigan,5700 Haven Hall,505 South State of their political principals hardly bears repeating in Street,Ann Arbor,MI 48109-1045 (lowande@umich.edu). political science research.It is central to studies of po- Previous versions were presented at the 2017 annual meeting of litical appointments,delegation,judicial review,rule- the Midwest Political Science Association,Chicago,IL,the 2017 making,and oversight.However,to test this proposi- Political Economy and Public Law Conference,and the 2017 an- nual meeting of the American Political Science Association.Randy tion,studies have focused almost exclusively on public Calvert,Andrew Clarke,Anthony Fowler,Justin Fox,Thomas Gray. auditing activities like committee hearings and investi- Jeff Jenkins,David Lewis,Jose Mendez,Jason Oh,Rachel Potter,and gations.Theories of oversight have long argued this be- Craig Volden provided helpful suggestions.Special thanks to Claire havior represents a fraction of all legislative oversight. Lowande and Michael Pomirchy for help with the project,as well as This study attempts to address this limitation by analyz- Russell Mills and Nikki Kalaf-Hughes for sharing their data.Sup- port for this research was provided by the Center for the Study of ing the oversight relationships of individual legislators Democratic Politics at Princeton University.Replication materials and executive agencies are available at the American Political Science Review Dataverse: Analyzing informal communication also presents an https://doi.org/10.7910/DVN/LFOZVU. opportunity to improve estimation of the effect of ide- Received:October 3,2017;revised:April 3,2018;accepted:July 6, ological disagreement,since the dyadic relationship be- 2018.First published online:September 17,2018. tween a congressional median and the bureaucracy /:sony For a review of this work,see Moe (2012) limits the variation explored by past empirical stud- 2 As of this writing.the study has been cited 3.278 times.Google ies.My strategy for estimating the causal effect of ide- Scholar URL:https://goo.gl/L6aKk4. ological disagreement is to leverage the transition in 874
American Political Science Review (2018) 112, 4, 874–890 doi:10.1017/S0003055418000497 © American Political Science Association 2018 Who Polices the Administrative State? KENNETH LOWANDE University of Michigan Scholarship on oversight of the bureaucracy typically conceives of legislatures as unitary actors. But most oversight is conducted by individual legislators who contact agencies directly. I acquire the correspondence logs of 16 bureaucratic agencies and re-evaluate the conventional proposition that ideological disagreement drives oversight. I identify the effect of this disagreement by exploiting the transition from George Bush to Barack Obama, which shifted the ideological orientation of agencies through turnover in agency personnel. Contrary to existing research, I find ideological conflict has a negligible effect on oversight, whereas committee roles and narrow district interests are primary drivers. The findings may indicate that absent incentives induced by public auditing, legislator behavior is driven by policy valence concerns rather than ideology. The results further suggest collective action in Congress may pose greater obstacles to bureaucratic oversight than previously thought. “...those kind of informal, [...] official contacts—they go on almost incessantly.” Former congressional aide, interview with author Monitoring unelected officials implementing public policy is a chief concern in democratic government. By overseeing that process, elected officials aim to prevent shirking, corruption, performance failures, and policy drift in bureaucracies. Not surprisingly, questions about the efficacy of this oversight has generated a vast body of theoretical and empirical research.1 I advance this work by analyzing records of over 50,000 oversight contacts between members of Congress and bureaucratic agencies. These new data reveal activity long-theorized about, but rarely observed. In an influential article on bureaucratic accountability, McCubbins and Schwartz (1984) argue members of Congress use administrative procedures to set up “fire alarms” for agency misbehavior, which allow them to avoid performing costly “police-patrols.”2 While scholars have analyzed published oversight hearings (Aberbach 1990; McGrath 2013; MacDonald and McGrath 2016; Kriner and Schickler 2016), this Kenneth Lowande is an Assistant Professor, Department of Political Science, University of Michigan, 5700 Haven Hall, 505 South State Street, Ann Arbor, MI 48109-1045 (lowande@umich.edu). Previous versions were presented at the 2017 annual meeting of the Midwest Political Science Association, Chicago, IL, the 2017 Political Economy and Public Law Conference, and the 2017 annual meeting of the American Political Science Association. Randy Calvert, Andrew Clarke, Anthony Fowler, Justin Fox, Thomas Gray, Jeff Jenkins, David Lewis, Jose Mendez, Jason Oh, Rachel Potter, and Craig Volden provided helpful suggestions. Special thanks to Claire Lowande and Michael Pomirchy for help with the project, as well as Russell Mills and Nikki Kalaf-Hughes for sharing their data. Support for this research was provided by the Center for the Study of Democratic Politics at Princeton University. Replication materials are available at the American Political Science Review Dataverse: https://doi.org/10.7910/DVN/LFQZVU. Received: October 3, 2017; revised: April 3, 2018; accepted: July 6, 2018. First published online: September 17, 2018. 1 For a review of this work, see Moe (2012). 2 As of this writing, the study has been cited 3,278 times. Google Scholar URL: https://goo.gl/L6aKk4. study documents informal comments and inquiries conducted by individual legislators. This type of oversight is both more frequent than formalized hearings and concerns consequential public policy (Lowande, forthcoming). Prior to the 2014 Veterans Affairs (VA) wait-time scandal, legislators made inquiries about VA health system record-keeping procedures that prefigured the problems to come.Their inquiries eventually led to a de facto nationwide review of these procedures. After the enactment of the DoddFrank Act, legislators forwarded hundreds of concern letters to the financial regulators required to approve the controversial Volcker Rule. When amendments to the Plutonium Management Disposition Agreement between the US and Russia to dispose of 68 metric tons of weapons-grade material were signed in 2010, Congress did not weigh in with legislation. Instead, legislators contacted the Department of Energy (DOE) to inquire about the construction of disposal facilities, the implementation timeline, and verification procedures. In a policymaking environment with executives increasingly at the center, legislative representatives rely on contacts like these to police agency behavior. These data provide leverage to test a conventional proposition in existing research: that ideological disagreement with agencies drives the oversight behavior of legislators. The assumption that agencies have preferences of their own that sometimes differ from those of their political principals hardly bears repeating in political science research. It is central to studies of political appointments, delegation, judicial review, rulemaking, and oversight. However, to test this proposition, studies have focused almost exclusively on public auditing activities like committee hearings and investigations. Theories of oversight have long argued this behavior represents a fraction of all legislative oversight. This study attempts to address this limitation by analyzing the oversight relationships of individual legislators and executive agencies. Analyzing informal communication also presents an opportunity to improve estimation of the effect of ideological disagreement, since the dyadic relationship between a congressional median and the bureaucracy limits the variation explored by past empirical studies. My strategy for estimating the causal effect of ideological disagreement is to leverage the transition in 874 Downloaded from https://www.cambridge.org/core. Shanghai JiaoTong University, on 26 Oct 2018 at 03:53:04, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0003055418000497
Who Polices the Administrative State? presidential administration from George W.Bush to creates collective actions problems that reduce over- Barack Obama.What is sacrificed in scope is compen sight (Gailmard 2009:Clinton.Lewis.and Selin 2014) sated for in internal credibility.Presidential transitions this study suggests that private communications may provide critical variation in agency preferences driven pose additional obstacles and lead to coordination fail. by turnover in both appointed and career personnel ures.Thus,evidence that informal oversight is compar (Chen and Johnson 2014;Bolton,de Figueiredo,and atively free of ideological and partisan considerations Lewis 2017:Dahlstrom and Holmgren 2017).whereas is not sufficient to guarantee that legislatures effec- the preferences of legislators within that narrow win- tively police shared goals in policy implementation dow are likely to be stable.It also provides an im- portant secondary contribution,since agency ideology is often thought of as a function of both an agency's CONGRESSIONAL OVERSIGHT AND "mission"and personnel.Thus,whereas past work is BUREAUCRATIC ACCOUNTABILITY unclear about the source of interbranch disagreement. This study attempts to build on some common limi- this design isolates ideological variation driven by per- tations of past work on oversight.Researchers most sons rather than statutes. often treat Congress as a unitary actor because they Contrary to the intuitive notion that ideological dis- are typically interested in questions about political con- agreement increases oversight.I find robust evidence trol of the bureaucracy meant to analyze whether pol- that it has a negligible effect.Across a variety of icy will deviate from the congressional median.4 This measurement specifications,the substantive effect of means that past work does not generally address the re- disagreement is near zero with high precision.The es- search question of who in Congress performs oversight. timates'95%confidence intervals never include an ef- The exception is,studies tend to argue,generally,that fect size greater in magnitude than a two percentage oversight is conducted by-in-large in committee (e.g., point difference in the probability of oversight-and Weingast and Moran 1983;Ogul and Rockman 1990), more plausible counterfactual scenarios suggest effects with more recent work investigating the consequences 4r元 that are much smaller.In analyses of the number of of overlapping jurisdictions (Gailmard 2009;Clinton. oversight contacts,the interval never includes an ef- Lewis,and Selin 2014:Rezaee.Wood,and Gailmard fect greater than a tenth of a contact.These effects 2015). contrast those of district characteristics and committee In general,most empirical research investigates pat- roles,which have strong and substantively significant terns of legislative oversight hearings.But there are associations with the likelihood of oversight. numerous reasons to suggest that hearings and inves- These results offer initial evidence that legislative tigations may exhibit unique oversight patterns.First, oversight is driven by policy valence,rather than ide- they are subject to congressional gatekeepers or of- ological disagreement.While existing studies analyze ten require some degree of coalition-building.In addi- the valence dimension of bureaucratic policymaking tion.norms of bipartisanship and committee rules vary (e.g.,Ting 2011),this study provides rare evidence of across committees and time.So,investigating theories its relative prominence vis-a-vis ideology.I argue this based on the individual-level incentives of legislators oversight is not systematically driven by ideological or to police the bureaucracy in this institutional context partisan forces because it is informal and most often is a conceptual mismatch.Second,public hearings and unobserved by reelection audiences.Without the op- investigations often involve goals beyond policy and portunity to publicly discredit ideologically divergent ideological disagreement.A common example is the 33 agents,legislators'oversight may instead be motivated 8 hearings held by the House Select Committee on Beng by the quality of administration.This implies that ex. hazi,which Democrats widely criticized as an attempt isting research may over-emphasize the importance of to discredit Hillary Clinton's 2016 presidential cam- ideological disagreement for legislative-executive in- paign (Lillis 2015).Studies of investigations suggest teractions since this broader universe of cases may that the public signal they generate may drive over- be driven by policy quality or valence.I present case sight patterns,so it is difficult to isolate the theoretical studies of the Department of Veterans Affairs and the motivations behind public "police patrols"(Kriner and DOE that suggest these concerns are operative. Schwartz 2008:Kriner and Schickler 2014:Lowande The results also suggest other important implications and Peck 2017) for future research on congressional oversight and the Research confined to public oversight hearings is separation of powers,more broadly.First,the ubiquity also typically unclear about what variation drives the 四 of informal requests suggests that theoretical models results it presents.The key "treatment"is often inter- of oversight which treat Congress as unitary would be branch ideological disagreement.Measures of agency misapplied to most oversight observed in practice.In preferences in these studies are either static or taken addition,evidence from this study suggests that past concerns about the overall efficacy of congressional oversight are well warranted.Whereas existing schol- Examples of such questions include,"Does the absence of overt L arship suggests the multiplicity of legislative principals oversight imply a runaway bureaucracy?"(Weingast and Moran 1983)and "Do 'fire-alarms'communicate credible information to legislators?"(Lupia and McCubbins 1994).Even work that empha- sizes bureaucracies have multiple principals often takes Congress to For a more recent review on the (in)stability of congressional pref- be unitary-the other principals are the President,interest groups erences,see Kousser,Lewis,and Masket(2007). and the judiciary (e.g.,Hammond and Knott 1996). 875
Who Polices the Administrative State? presidential administration from George W. Bush to Barack Obama. What is sacrificed in scope is compensated for in internal credibility. Presidential transitions provide critical variation in agency preferences driven by turnover in both appointed and career personnel (Chen and Johnson 2014; Bolton, de Figueiredo, and Lewis 2017; Dahlström and Holmgren 2017), whereas the preferences of legislators within that narrow window are likely to be stable.3 It also provides an important secondary contribution, since agency ideology is often thought of as a function of both an agency’s “mission” and personnel. Thus, whereas past work is unclear about the source of interbranch disagreement, this design isolates ideological variation driven by persons rather than statutes. Contrary to the intuitive notion that ideological disagreement increases oversight, I find robust evidence that it has a negligible effect. Across a variety of measurement specifications, the substantive effect of disagreement is near zero with high precision. The estimates’ 95% confidence intervals never include an effect size greater in magnitude than a two percentage point difference in the probability of oversight—and more plausible counterfactual scenarios suggest effects that are much smaller. In analyses of the number of oversight contacts, the interval never includes an effect greater than a tenth of a contact. These effects contrast those of district characteristics and committee roles, which have strong and substantively significant associations with the likelihood of oversight. These results offer initial evidence that legislative oversight is driven by policy valence, rather than ideological disagreement. While existing studies analyze the valence dimension of bureaucratic policymaking (e.g., Ting 2011), this study provides rare evidence of its relative prominence vis-à-vis ideology. I argue this oversight is not systematically driven by ideological or partisan forces because it is informal and most often unobserved by reelection audiences. Without the opportunity to publicly discredit ideologically divergent agents, legislators’ oversight may instead be motivated by the quality of administration. This implies that existing research may over-emphasize the importance of ideological disagreement for legislative-executive interactions since this broader universe of cases may be driven by policy quality or valence. I present case studies of the Department of Veterans Affairs and the DOE that suggest these concerns are operative. The results also suggest other important implications for future research on congressional oversight and the separation of powers, more broadly. First, the ubiquity of informal requests suggests that theoretical models of oversight which treat Congress as unitary would be misapplied to most oversight observed in practice. In addition, evidence from this study suggests that past concerns about the overall efficacy of congressional oversight are well warranted. Whereas existing scholarship suggests the multiplicity of legislative principals 3 For a more recent review on the (in)stability of congressional preferences, see Kousser, Lewis, and Masket (2007). creates collective actions problems that reduce oversight (Gailmard 2009; Clinton, Lewis, and Selin 2014), this study suggests that private communications may pose additional obstacles and lead to coordination failures. Thus, evidence that informal oversight is comparatively free of ideological and partisan considerations is not sufficient to guarantee that legislatures effectively police shared goals in policy implementation. CONGRESSIONAL OVERSIGHT AND BUREAUCRATIC ACCOUNTABILITY This study attempts to build on some common limitations of past work on oversight. Researchers most often treat Congress as a unitary actor because they are typically interested in questions about political control of the bureaucracy meant to analyze whether policy will deviate from the congressional median.4 This means that past work does not generally address the research question of who in Congress performs oversight. The exception is, studies tend to argue, generally, that oversight is conducted by-in-large in committee (e.g., Weingast and Moran 1983; Ogul and Rockman 1990), with more recent work investigating the consequences of overlapping jurisdictions (Gailmard 2009; Clinton, Lewis, and Selin 2014; Rezaee, Wood, and Gailmard 2015). In general, most empirical research investigates patterns of legislative oversight hearings. But there are numerous reasons to suggest that hearings and investigations may exhibit unique oversight patterns. First, they are subject to congressional gatekeepers or often require some degree of coalition-building. In addition, norms of bipartisanship and committee rules vary across committees and time. So, investigating theories based on the individual-level incentives of legislators to police the bureaucracy in this institutional context is a conceptual mismatch. Second, public hearings and investigations often involve goals beyond policy and ideological disagreement.A common example is the 33 hearings held by the House Select Committee on Benghazi, which Democrats widely criticized as an attempt to discredit Hillary Clinton’s 2016 presidential campaign (Lillis 2015). Studies of investigations suggest that the public signal they generate may drive oversight patterns, so it is difficult to isolate the theoretical motivations behind public “police patrols” (Kriner and Schwartz 2008; Kriner and Schickler 2014; Lowande and Peck 2017). Research confined to public oversight hearings is also typically unclear about what variation drives the results it presents. The key “treatment” is often interbranch ideological disagreement. Measures of agency preferences in these studies are either static or taken 4 Examples of such questions include, “Does the absence of overt oversight imply a runaway bureaucracy?” (Weingast and Moran 1983) and “Do ‘fire-alarms’ communicate credible information to legislators?” (Lupia and McCubbins 1994). Even work that emphasizes bureaucracies have multiple principals often takes Congress to be unitary—the other principals are the President, interest groups, and the judiciary (e.g., Hammond and Knott 1996). 875 Downloaded from https://www.cambridge.org/core. Shanghai JiaoTong University, on 26 Oct 2018 at 03:53:04, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0003055418000497
Kenneth Lowande to be presidents or chief executives.Some designs rely Models of Oversight on agency cross-sections,which is problematic because of the numerous unobserved differences that may Who polices the administrative state?I assess a propo- drive interbranch contact.Others rely on the implicit sition found in numerous models of oversight:ideo- assumption that over-time changes in the preferences logical preference divergence between principal and of Congress is exogenous.This may not be warranted, agent should increase oversight.s Following McCub- since most of this variation is a function of elections. bins and Schwartz(1984),I define oversight as actions and elections bring about policy changes that plausibly to "detect and remedy executive-branch violations of influence interbranch contact. legislative goals"and consider the incentives of indi- Inquiries made directly by legislators differ from vidual legislators to police particular agencies (165).I public oversight in important respects.They are com- take as given that there is some opportunity cost to paratively unilateral.Until recently,there was little oversight,so that members have to make strategic de- question that individual legislators could make in- cisions about which agencies to allocate attention to. quiries without "clearance"from copartisans,commit- Broadly speaking,there are two conceptually distinct tee chairs,party leaders,or any other official.They are categories of oversight.Efforts to reveal violations are also comparatively private,and less likely to be in ser- typically thought of as "auditing,"whereas communi- vice of non-policy-related goals.This point warrants cating explicit demands is thought of as "lobbying. some discussion,because legislators do occasionally Congressional oversight includes both activities,and "claim credit"for inquiries by posting them on their under minimal assumptions,the divergence hypothesis 元 public web pages.One legislative assistant interviewed applies to both.9 indicated that recently,it was also more common for Members audit to reveal information about gover- congressional staff to forward inquiries to media out- nance tasks performed by agencies.This information is lets and interest groups:"Offices want to make sure valuable to members for a variety of reasons.It may im- their bosses are the one that gets the attribution in the prove their ability to make policy adjustments through press."5 However,an analysis of the universe of such legislation.It may reveal"drift"in policy implementa- correspondence is not subject to this selection issue. tion.It can also reveal potential wrongdoing or mal- The prevalence of informal contact suggests this administration.Benchmark models of delegation show is a critical institutional setting in which to evaluate that "drift"is more likely among ideologically distal questions about bureaucratic accountability.The mere agents.This result typically leads to the "ally princi- threat of legislation,investigations,hearings,and sub- ple,"which suggests that principals rely more heavily poenas is often used as leverage to compel the pro- on agents with proximate preferences.However,del- duction of documents and compliance with Congress's egation decisions are made by the legislative median. demands.5 Thus,as research on oversight has long- while decisions to audit an agency informally are made acknowledged,the absence of these events does not by the individual legislator.This means that the sever- imply that Congress is powerless-and might suggest ity of drift and the value of revealing wrongdoing vary the opposite.Informal inquiries,on the other hand,are by legislator.Put differently,even an agency strictly not neither“carrot'"nor“stick.”They are as close to loyal to the congressional median will make enemies sincere attempts at oversight as researchers are likely in Congress. 。101g to obtain This implies "enemies"will be more likely to over- Chuck Grassley (R-IA)highlighted this basic point see agencies for two reasons.First,the likelihood of in May 2017 after the release of an opinion from the policy drift is higher.That is,they are more likely to White House Office of Legal Counsel(Office of Legal disagree with agency choices.Moreover,their prefer- Council,White House 2012).The opinion claimed the ences tend to reflect those of constituents who are more Trump administration had the authority to restrict the likely to be injured by agency choices.Second,these individual oversight inquiries of members of Congress enemies have more to gain from revealing wrongdo- after months of reports that agencies had stopped re- ing.The logic here,again,is fairly straightforward.A sponding to letters from Democrats (Elliot 2017).In a conservative legislator like Senator Ted Cruz (R-TX) letter addressed to the President,Senator Grassley's benefits from portraying the Environmental Protec- response was pointed:"This is nonsense."7 He went tion Agency (EPA)as corrupt or incompetent-and on to write that such inquiries were included among preferably,both.10 Moreover,there is anecdotal evi- "mechanisms that support the legislative check and dence that the mere act of auditing can tap agency balance of the executive power.All members partic- ipate in deciding whether,when,and how Congress I refer to this as the "divergence"hypothesis. will exercise these authorities."This makes them ideal MacDonald and McGrath(2016)find systematic increases in hear- for testing long-held notions about Congress and the ings under unified government after changes in party control of the presidency and argue that lobbying of ideological allies accounts for bureaucracy. this trend-counter to the divergence hypothesis.I argue this finding is driven,in part,by majority party control of the hearing calendar Informal oversight,by contrast,is most often unilateral and does not 5 Interview with current congressional staffer,June 23,2017 require the consent of other legislators.I code contacts that qualify 6 As one former staffer noted:"There are various ways to put pres- sure on these people and get answers out of them"(interview with author.June 26.2017). ally reveal information.It might be the case,for example,that Sen- Charles Grassley to Donald J.Trump,June 72017 ator Cruz benefits from the mere act of auditing the EPA-similar 876
Kenneth Lowande to be presidents or chief executives. Some designs rely on agency cross-sections, which is problematic because of the numerous unobserved differences that may drive interbranch contact. Others rely on the implicit assumption that over-time changes in the preferences of Congress is exogenous. This may not be warranted, since most of this variation is a function of elections, and elections bring about policy changes that plausibly influence interbranch contact. Inquiries made directly by legislators differ from public oversight in important respects. They are comparatively unilateral. Until recently, there was little question that individual legislators could make inquiries without “clearance” from copartisans, committee chairs, party leaders, or any other official. They are also comparatively private, and less likely to be in service of non-policy-related goals. This point warrants some discussion, because legislators do occasionally “claim credit” for inquiries by posting them on their public web pages. One legislative assistant interviewed indicated that recently, it was also more common for congressional staff to forward inquiries to media outlets and interest groups: “Offices want to make sure their bosses are the one that gets the attribution in the press.”5 However, an analysis of the universe of such correspondence is not subject to this selection issue. The prevalence of informal contact suggests this is a critical institutional setting in which to evaluate questions about bureaucratic accountability. The mere threat of legislation, investigations, hearings, and subpoenas is often used as leverage to compel the production of documents and compliance with Congress’s demands.6 Thus, as research on oversight has longacknowledged, the absence of these events does not imply that Congress is powerless—and might suggest the opposite. Informal inquiries, on the other hand, are not neither “carrot” nor “stick.” They are as close to sincere attempts at oversight as researchers are likely to obtain. Chuck Grassley (R-IA) highlighted this basic point in May 2017, after the release of an opinion from the White House Office of Legal Counsel (Office of Legal Council, White House 2012). The opinion claimed the Trump administration had the authority to restrict the individual oversight inquiries of members of Congress after months of reports that agencies had stopped responding to letters from Democrats (Elliot 2017). In a letter addressed to the President, Senator Grassley’s response was pointed: “This is nonsense.”7 He went on to write that such inquiries were included among “mechanisms that support the legislative check and balance of the executive power. All members participate in deciding whether, when, and how Congress will exercise these authorities.” This makes them ideal for testing long-held notions about Congress and the bureaucracy. 5 Interview with current congressional staffer, June 23, 2017. 6 As one former staffer noted: “There are various ways to put pressure on these people and get answers out of them” (interview with author, June 26, 2017). 7 Charles Grassley to Donald J. Trump, June 7, 2017. Models of Oversight Who polices the administrative state? I assess a proposition found in numerous models of oversight: ideological preference divergence between principal and agent should increase oversight.8 Following McCubbins and Schwartz (1984), I define oversight as actions to “detect and remedy executive-branch violations of legislative goals” and consider the incentives of individual legislators to police particular agencies (165). I take as given that there is some opportunity cost to oversight, so that members have to make strategic decisions about which agencies to allocate attention to. Broadly speaking, there are two conceptually distinct categories of oversight. Efforts to reveal violations are typically thought of as “auditing,” whereas communicating explicit demands is thought of as “lobbying.” Congressional oversight includes both activities, and under minimal assumptions, the divergence hypothesis applies to both.9 Members audit to reveal information about governance tasks performed by agencies. This information is valuable to members for a variety of reasons. It may improve their ability to make policy adjustments through legislation. It may reveal “drift” in policy implementation. It can also reveal potential wrongdoing or maladministration. Benchmark models of delegation show that “drift” is more likely among ideologically distal agents. This result typically leads to the “ally principle,” which suggests that principals rely more heavily on agents with proximate preferences. However, delegation decisions are made by the legislative median, while decisions to audit an agency informally are made by the individual legislator. This means that the severity of drift and the value of revealing wrongdoing vary by legislator. Put differently, even an agency strictly loyal to the congressional median will make enemies in Congress. This implies “enemies” will be more likely to oversee agencies for two reasons. First, the likelihood of policy drift is higher. That is, they are more likely to disagree with agency choices. Moreover, their preferences tend to reflect those of constituents who are more likely to be injured by agency choices. Second, these enemies have more to gain from revealing wrongdoing. The logic here, again, is fairly straightforward. A conservative legislator like Senator Ted Cruz (R-TX) benefits from portraying the Environmental Protection Agency (EPA) as corrupt or incompetent—and preferably, both.10 Moreover, there is anecdotal evidence that the mere act of auditing can tap agency 8 I refer to this as the “divergence” hypothesis. 9 MacDonald and McGrath (2016) find systematic increases in hearings under unified government after changes in party control of the presidency and argue that lobbying of ideological allies accounts for this trend—counter to the divergence hypothesis. I argue this finding is driven, in part, by majority party control of the hearing calendar. Informal oversight, by contrast, is most often unilateral and does not require the consent of other legislators. I code contacts that qualify as lobbying to assess this empirically. 10 It is worth noting that this logic does not require that audits actually reveal information. It might be the case, for example, that Senator Cruz benefits from the mere act of auditing the EPA—similar 876 Downloaded from https://www.cambridge.org/core. Shanghai JiaoTong University, on 26 Oct 2018 at 03:53:04, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0003055418000497
Who Polices the Administrative State? resources.Responding to congressional inquiries often of models of delegation.with some studies even assum- requires time-consuming document production unre ing congressional oversight helps set the boundaries of lated to an agency's core mission.This logic underlies agency discretion.12 studies that see investigations as efforts to discredit the There is also no shortage of reasons this notion opposition and reap electoral gains. should apply to informal congressional inquiries.As re- In other attempts at oversight,members lobby to cent work by Wiseman and Wright (2015)highlights, communicate preferences.Work on lobbying typically the time elapsed between delegation decisions and sees legislators as the target of such communications agency policymaking is sometimes decades.This may In this case,statutory discretion and unforeseen cir- coincide with turnover in both principal(via elections) cumstances guarantee that agencies make decisions af- and agent(via career decisions).In the narrower period ter enactment that are politically important to legisla- of concern for this study.the basic fact is that legislators tors and warrant explicit communication (Ritchie and inherit the delegation contracts of prior congresses and You 2018).Lobbying can be valuable for two reasons. observe changes in agency preferences.This presents 4 First,it may influence policy outcomes.In a review the risk of deviation identified in past work.It is of major congressional investigations from 1947-2002 also consistent with McCubbins and Schwartz's model Kriner and Schickler(2016)find that about 80%pro- since changes in agency ideology may result in changes duced "tangible policy change"(171).Moreover,a re- in policy behavior that-in turn-result in more com- cent study by Ritchie and You (2018)suggests that plaints from constituents. informal contacts are associated with the approval of Nonetheless,there are key features of informal over- trade adjustment assistance applications at the Depart- sight which suggest that these conventional arguments ment of Labor.In an analysis of the Federal Avia may not generalize.First,they are typically unob- tion Administration,however,Mills,Kalaf-Hughes,and served by reelection audiences.Informal contacts al- MacDonald (2016)find such oversight may have lit- low members to seek the redress of grievances with a tle to no impact.So it is important to note that lob- more limited audience.News coverage of these con- 4r元 bying can be valuable if it has no impact on policy.In tacts have been historically muted.They lack the ap- some cases,oversight attempts offer the opportunity to parent"grandstanding"opportunity that allows mem- "credit claim"(Mayhew 1974).Exerting effort on be- bers to distinguish themselves from the opposition, half of a constituent may be enough to win their sup- which is often cited as a key driver of the patterns of port.This differs from the "grandstanding"opportuni- oversight under divided and unified government (e.g.. ties found in congressional hearings because of its focus Kriner and Schwartz 2008:Lowande and Peck 2017) on serving an individual constituent. Moreover,unlike congressional hearings and subpoe- The logic behind lobbying divergent agents follows nas.these contacts are almost entirely unregulated by from these goals.Again,delegation decisions are made legislative and executive branch rules.This gives agen- collectively,whereas informal oversight is performed cies a freer hand in responding and may limit the effi- by individual legislators.This means there will always cacy of ideologically charged inquiries.Requests with be some subset of overseers who would benefit from a implications for the ideological orientation of policy shift.From the legislator's perspective,distal agents are are zero-sum. more likely to"drift,"so swaying their choices is partic- This,naturally,raises the question of what the null ularly valuable.1 Likewise,if it is instead assumed that hypothesis implies about the broader universe of con- oversight is totally ineffectual,distal agents present gressional oversight.I present and begin to assess one the best opportunity to demonstrate to the individ- argument,that oversight is motivated by "valence"or 8 ual constituent that legislators are serving as faithful policy quality-related concerns that are largely orthog- advocates onal to ideological disagreement.Broadly speaking,va- Not surprisingly,the explicit notion that preference lence is often modeled as a dimension of policy over divergence increases oversight has been critical to stud- which all legislators agree.13 Studies that consider its ies of formal hearings (e.g.,Dodd and Schott 1979: analytical properties point to a variety of examples Kriner and Schwartz 2008;McGrath 2013;Fowler As Ting (2011)notes,determining the tax rate (10% 2015;Rezaee,Wood,and Gailmard 2015;Kriner and v.50%)is ideological,whereas whether the IRS ex- Schickler 2016).As McGrath writes,"congressional tracts the correct rate from all those it applies to is committees conduct oversight hearings primarily as a a question of capacity or implementation quality.In response to the extent to which agencies have differ- other words,uneven application of the rate would vio- 四 ent policy preferences"(McGrath 2013,349).More late a shared goal of avoiding arbitrary exceptions and broadly,attention to spatial disagreement is at the core policy uncertainty.Similarly,Hitt,Volden,and Wise- man(2017)argue that legislators have shared prefer- ences over the expected benefit-to-cost ratio of a policy high-profile oversight investigations like the Benghazi hearings or IRS targeting scandal 11 There are,of course.alternative models of lobbying which of fer divergent predictions.Notably,Austen-Smith and Wright(1994) 12 Epstein and O'Halloran(1999)use two components of congres- develop a model in which only distal players have an incentive to sional oversight (direct action,agency reporting)to measure con- lobby-until the introduction of an opposing player,which gener- ates their key "counter-active"lobbying result.In addition,Hall and For recet exampleof this conception of valence,see Callander Deardorff (2006)argue lobbying subsidizes allies with otherwise and Martin (2017),Callander and Raiha (2017),and Hitt,Volden, costly information. and Wiseman (2017). 877
Who Polices the Administrative State? resources. Responding to congressional inquiries often requires time-consuming document production unrelated to an agency’s core mission. This logic underlies studies that see investigations as efforts to discredit the opposition and reap electoral gains. In other attempts at oversight, members lobby to communicate preferences. Work on lobbying typically sees legislators as the target of such communications. In this case, statutory discretion and unforeseen circumstances guarantee that agencies make decisions after enactment that are politically important to legislators and warrant explicit communication (Ritchie and You 2018). Lobbying can be valuable for two reasons. First, it may influence policy outcomes. In a review of major congressional investigations from 1947-2002, Kriner and Schickler (2016) find that about 80% produced “tangible policy change” (171). Moreover, a recent study by Ritchie and You (2018) suggests that informal contacts are associated with the approval of trade adjustment assistance applications at the Department of Labor. In an analysis of the Federal Aviation Administration, however,Mills,Kalaf-Hughes, and MacDonald (2016) find such oversight may have little to no impact. So it is important to note that lobbying can be valuable if it has no impact on policy. In some cases, oversight attempts offer the opportunity to “credit claim” (Mayhew 1974). Exerting effort on behalf of a constituent may be enough to win their support. This differs from the “grandstanding” opportunities found in congressional hearings because of its focus on serving an individual constituent. The logic behind lobbying divergent agents follows from these goals. Again, delegation decisions are made collectively, whereas informal oversight is performed by individual legislators. This means there will always be some subset of overseers who would benefit from a shift. From the legislator’s perspective, distal agents are more likely to “drift,” so swaying their choices is particularly valuable.11 Likewise, if it is instead assumed that oversight is totally ineffectual, distal agents present the best opportunity to demonstrate to the individual constituent that legislators are serving as faithful advocates. Not surprisingly, the explicit notion that preference divergence increases oversight has been critical to studies of formal hearings (e.g., Dodd and Schott 1979; Kriner and Schwartz 2008; McGrath 2013; Fowler 2015; Rezaee, Wood, and Gailmard 2015; Kriner and Schickler 2016). As McGrath writes, “congressional committees conduct oversight hearings primarily as a response to the extent to which agencies have different policy preferences” (McGrath 2013, 349). More broadly, attention to spatial disagreement is at the core high-profile oversight investigations like the Benghazi hearings or IRS targeting scandal. 11 There are, of course, alternative models of lobbying which offer divergent predictions. Notably, Austen-Smith and Wright (1994) develop a model in which only distal players have an incentive to lobby—until the introduction of an opposing player, which generates their key “counter-active” lobbying result. In addition, Hall and Deardorff (2006) argue lobbying subsidizes allies with otherwise costly information. of models of delegation, with some studies even assuming congressional oversight helps set the boundaries of agency discretion.12 There is also no shortage of reasons this notion should apply to informal congressional inquiries.As recent work by Wiseman and Wright (2015) highlights, the time elapsed between delegation decisions and agency policymaking is sometimes decades. This may coincide with turnover in both principal (via elections) and agent (via career decisions). In the narrower period of concern for this study, the basic fact is that legislators inherit the delegation contracts of prior congresses and observe changes in agency preferences. This presents the risk of deviation identified in past work. It is also consistent with McCubbins and Schwartz’s model, since changes in agency ideology may result in changes in policy behavior that—in turn—result in more complaints from constituents. Nonetheless, there are key features of informal oversight which suggest that these conventional arguments may not generalize. First, they are typically unobserved by reelection audiences. Informal contacts allow members to seek the redress of grievances with a more limited audience. News coverage of these contacts have been historically muted. They lack the apparent “grandstanding” opportunity that allows members to distinguish themselves from the opposition, which is often cited as a key driver of the patterns of oversight under divided and unified government (e.g., Kriner and Schwartz 2008; Lowande and Peck 2017). Moreover, unlike congressional hearings and subpoenas, these contacts are almost entirely unregulated by legislative and executive branch rules. This gives agencies a freer hand in responding and may limit the efficacy of ideologically charged inquiries. Requests with implications for the ideological orientation of policy are zero-sum. This, naturally, raises the question of what the null hypothesis implies about the broader universe of congressional oversight. I present and begin to assess one argument, that oversight is motivated by “valence” or policy quality-related concerns that are largely orthogonal to ideological disagreement. Broadly speaking, valence is often modeled as a dimension of policy over which all legislators agree.13 Studies that consider its analytical properties point to a variety of examples. As Ting (2011) notes, determining the tax rate (10% v. 50%) is ideological, whereas whether the IRS extracts the correct rate from all those it applies to is a question of capacity or implementation quality. In other words, uneven application of the rate would violate a shared goal of avoiding arbitrary exceptions and policy uncertainty. Similarly, Hitt, Volden, and Wiseman (2017) argue that legislators have shared preferences over the expected benefit-to-cost ratio of a policy 12 Epstein and O’Halloran (1999) use two components of congressional oversight (direct action, agency reporting) to measure constraints on agency policymaking. 13 For recent examples of this conception of valence, see Callander and Martin (2017), Callander and Raiha (2017), and Hitt, Volden, and Wiseman (2017). 877 Downloaded from https://www.cambridge.org/core. Shanghai JiaoTong University, on 26 Oct 2018 at 03:53:04, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0003055418000497
Kenneth Lowande (e.g.,minimizing budgetary impact while maximizing of FOIA requests to 72 agencies in October 2014 the number of beneficiaries).This does not supplant (Mills,Kalaf-Hughes,and MacDonald 2016;Lowande, ideological concerns;it simply suggests that policy out- forthcoming).14 Though agencies are required by law comes vary both by ideological content and perceived to respond to these inquiries,their responses do not al- quality. ways provide information usable for analysis.For that In the context of informal oversight,this implies that reason,the sample of agencies and time series is con- legislators would be motivated primarily by concerns strained by data availability. over how well policies are implemented.Audits for in- This raises a key issue:the particular subsample of formation and lobbying for policy changes should be agencies included in the analysis.Broadly speaking,this driven by the potential for policy failures that nega- analysis over-samples more structurally independent tively impact constituents and could draw broad-based agencies.This is confirmed in Figure 7 presented later, criticism.The lack of public observation means mem- which plots the structural independence of the sample bers have far less to gain from lobbing ideologically and population as measured by Selin(2015).However, motivated attacks.Moreover,the lack of rules gov- the structural features that render agencies more or less erning the process gives agencies more discretion in likely to receive demands are invariant within agen- handling requests and induces members to conduct cies during the period analyzed.So the internal valid- oversight that is not zero-sum.Policy valence-based ex- ity of the results should not be biased by such struc- planations are featured in some accounts of high pro- tural features-given the modeling approach discussed file investigations(Mayhew 1991;Light 2014)and they in the next section.On the other hand,the broader gen- are the dominant subtext for studies of oversight in eralizability of the findings should be taken in careful public administration and public policy.For example. context.I discuss this issue at length during the discus- Wood and Lewis (2017)leverage a Freedom of In- sion of the results by characterizing the relative influ- formation Act(FOIA)program audit by Represen- ence of these agencies on the key findings. tative Darrell Issa(R-CA)to measure responsiveness Figure 1 provides an overview of the sample,as well to private inquiries.In this case,concerns over FOlA as a comparison with the oversight studied in past performance motivated the government-wide audit.In work.Specifically,the figure provides a side-by-side summary,standard models of oversight that emphasize look at the number of days agency officials spent tes- ideological cleavages may have less purchase absent in- tifying in oversight hearings and the number of infor- centives generated by public observation and formal- mal inquiries over the same period.Several descriptive ized communication. findings are worth noting.First,the number of requests Valence is orthogonal to ideology by definition,but dwarfs that of witness testimony.This,I argue,pro- the absence of evidence for the explanatory power vides important descriptive support of McCubbins and of ideology is not evidence of the explanatory power Schwartz's notion that most oversight is conducted out- of valence concerns.I defer a more complete discus- side formal hearings.Second,these measures of over- sion of measurement to the following section,but past sight are not highly correlated.Some reasons will be work has suggested a number of possible markers of obvious.A few agencies only contact with legislators is valence-related oversight.The most obvious is that fielding the complaints of the constituents they provide oversight would be conducted by-in-large by mem- services.But the differences also highlight some of the bers of jurisdictionally relevant committees(Ogul and arguments in the previous section.In general,informal Rockman 1990).The committee system allows mem- inquiries are not subject to the same institutional con- bers to acquire expertise that may make them more straints.So it is unsurprising to find diverging patterns effective at detecting the problems.Moreover,whistle- of oversight.I return to these differences in my discus- blowers informed of Congress's distribution of labor sion of the key findings may target committee members and leadership with Figure 1 also raises questions about the inquiries complaints.Generally,I also expect members to re- themselves.First,the variety of contact begs the ques- spond to external evaluations of quality that reveal is- tion of what does and does not constitute congressional sues.Many quality concerns are episodic-so that over- oversight.Many of these inquiries are mundane aspects sight would be associated with the idiosyncratic fea- of daily governance.That is,they are inquiries on behalf tures of particular congresses and legislative districts. of particular constituents with specific grievances- Thus,I conclude this study with several case studies il- what those in Congress often refer to as "casework." lustrative of valence concerns at work in congressional Others are not broad criticisms of programs-but oversight. instead,specific concerns about the details of im- plementation left to the discretion of agencies.This includes requesting federal funds be spent a particular MEASURING OVERSIGHT WITH way-a practice known as "letter-marking"(Mills. CONGRESSIONAL CORRESPONDENCE Kalaf-Hughes,and MacDonald 2016).However,the L To reexamine the divergence hypothesis,I analyze records of correspondence between bureaucratic agen- 14 These were the agencies at the time of request who had dedicated cies and members of Congress.Since the vast ma- FOIA contact information on foia.gov.The initial request asked for records from January 1.2007 to the present,but some agencies pro jority of contact records are not publicly avail- vided records for different time series.A full description of these able,these records were collected through a series requests and outcomes can be found in Table Al. 878
Kenneth Lowande (e.g., minimizing budgetary impact while maximizing the number of beneficiaries). This does not supplant ideological concerns; it simply suggests that policy outcomes vary both by ideological content and perceived quality. In the context of informal oversight, this implies that legislators would be motivated primarily by concerns over how well policies are implemented. Audits for information and lobbying for policy changes should be driven by the potential for policy failures that negatively impact constituents and could draw broad-based criticism. The lack of public observation means members have far less to gain from lobbing ideologically motivated attacks. Moreover, the lack of rules governing the process gives agencies more discretion in handling requests and induces members to conduct oversight that is not zero-sum. Policy valence-based explanations are featured in some accounts of high profile investigations (Mayhew 1991; Light 2014) and they are the dominant subtext for studies of oversight in public administration and public policy. For example, Wood and Lewis (2017) leverage a Freedom of Information Act (FOIA) program audit by Representative Darrell Issa (R-CA) to measure responsiveness to private inquiries. In this case, concerns over FOIA performance motivated the government-wide audit. In summary, standard models of oversight that emphasize ideological cleavages may have less purchase absent incentives generated by public observation and formalized communication. Valence is orthogonal to ideology by definition, but the absence of evidence for the explanatory power of ideology is not evidence of the explanatory power of valence concerns. I defer a more complete discussion of measurement to the following section, but past work has suggested a number of possible markers of valence-related oversight. The most obvious is that oversight would be conducted by-in-large by members of jurisdictionally relevant committees (Ogul and Rockman 1990). The committee system allows members to acquire expertise that may make them more effective at detecting the problems. Moreover, whistleblowers informed of Congress’s distribution of labor may target committee members and leadership with complaints. Generally, I also expect members to respond to external evaluations of quality that reveal issues.Many quality concerns are episodic—so that oversight would be associated with the idiosyncratic features of particular congresses and legislative districts. Thus, I conclude this study with several case studies illustrative of valence concerns at work in congressional oversight. MEASURING OVERSIGHT WITH CONGRESSIONAL CORRESPONDENCE To reexamine the divergence hypothesis, I analyze records of correspondence between bureaucratic agencies and members of Congress. Since the vast majority of contact records are not publicly available, these records were collected through a series of FOIA requests to 72 agencies in October 2014 (Mills, Kalaf-Hughes, and MacDonald 2016; Lowande, forthcoming).14 Though agencies are required by law to respond to these inquiries, their responses do not always provide information usable for analysis. For that reason, the sample of agencies and time series is constrained by data availability. This raises a key issue: the particular subsample of agencies included in the analysis.Broadly speaking, this analysis over-samples more structurally independent agencies. This is confirmed in Figure 7 presented later, which plots the structural independence of the sample and population as measured by Selin (2015). However, the structural features that render agencies more or less likely to receive demands are invariant within agencies during the period analyzed. So the internal validity of the results should not be biased by such structural features—given the modeling approach discussed in the next section.On the other hand, the broader generalizability of the findings should be taken in careful context. I discuss this issue at length during the discussion of the results by characterizing the relative influence of these agencies on the key findings. Figure 1 provides an overview of the sample, as well as a comparison with the oversight studied in past work. Specifically, the figure provides a side-by-side look at the number of days agency officials spent testifying in oversight hearings and the number of informal inquiries over the same period. Several descriptive findings are worth noting. First, the number of requests dwarfs that of witness testimony. This, I argue, provides important descriptive support of McCubbins and Schwartz’s notion that most oversight is conducted outside formal hearings. Second, these measures of oversight are not highly correlated. Some reasons will be obvious. A few agencies only contact with legislators is fielding the complaints of the constituents they provide services. But the differences also highlight some of the arguments in the previous section. In general, informal inquiries are not subject to the same institutional constraints. So it is unsurprising to find diverging patterns of oversight. I return to these differences in my discussion of the key findings. Figure 1 also raises questions about the inquiries themselves. First, the variety of contact begs the question of what does and does not constitute congressional oversight.Many of these inquiries are mundane aspects of daily governance.That is, they are inquiries on behalf of particular constituents with specific grievances— what those in Congress often refer to as “casework.” Others are not broad criticisms of programs—but instead, specific concerns about the details of implementation left to the discretion of agencies. This includes requesting federal funds be spent a particular way—a practice known as “letter-marking”(Mills, Kalaf-Hughes, and MacDonald 2016). However, the 14 These were the agencies at the time of request who had dedicated FOIA contact information on foia.gov. The initial request asked for records from January 1, 2007 to the present, but some agencies provided records for different time series. A full description of these requests and outcomes can be found in Table A1. 878 Downloaded from https://www.cambridge.org/core. 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Who Polices the Administrative State? FIGURE 1.Oversight Activity in the 110th and 111th Congresses 10000 5000 MSPB FLRA EEOC NRC CPSC USAID FDIC GSA Labor HUD DOT FED Energy EPA USDA DHS 300 200 00 4号 MSPB FLRA EEOC NRC CPSC USAID FDIC GSA Labor HUD DOT FED Energy EPA USDA DHS Note:Days of witness testimony collected through keyword searches of ProQuest Congressional;excludes appointment hearings; off-site inquiries include both casework and general policy requests,but exclude scheduling and committee-related business. conventional perspective on oversight previously de- policy-related inquiries are more likely to be revealed scribed makes no distinction between the mundane,the member positions-since failing to communicate them important,or the distributive.McCubbins and does not mean actively disregarding the voice of a Schwartz (1984)write,for example,"as part of the constituent.In sum,the subset of oversight requests fire-alarm system,district staff and casework help dealing with general policy concerns should be most individuals and groups-some of them otherwise likely to follow the expectations laid out in the previous powerless-to raise and redress grievances against section. decisions by administrative agencies"(173).Moreover, Moreover,as the previous section indicates,there is in interviews with current and former congressional a clear conceptual distinction between oversight that staff,most considered casework"low level"oversight.15 requests information and those that advocate for par- In short,members of Congress attempting to gather ticular policies (lobbying).Though I have argued that information and influence any public policy may both should follow similar patterns,recent work by qualify as oversight of agencies. MacDonald and McGrath (2016)suggests lobbying However,it is important to distinguish between the might be negatively associated with ideological diver- direct service of constituents(casework)and more gen- gence.More generally,it is not difficult to construct al- eral policy-related concerns (policy).First,legislators ternative models of oversight as lobbying that produce most often frame the content of oversight hearings this reversed expectation. as general policy concerns.This facilitates more direct Accordingly,though past research on oversight does comparison of this study with prior studies of hearings not distinguish between hearings that fall into the Second,there are theoretical reasons to believe that above categories,I take the additional step of coding casework would be only weakly associated with ideol- all informal oversight.Each contact is labeled either ogy.Members of Congress are not ideological clones "casework"or"policy"related.I also label the contacts of their median constituent (Tausanovitch and War- that are cases of"lobbying."Complete definitions,cod- shaw 2013).Though constituent grievances are likely ing rules,and diagnostics can be found in Online Ap- to be correlated with member preferences,a strong pendix A2 of the Supplementary Information(SI).The association would imply members were systematically contacts were classified with supervised machine learn- disregarding complaints that went against those pref- ing to reduce reliance on human coders and enhance erences.There is no evidence that members "politi- replicability.I have also removed several classes of cor- cize"their casework operation.In contrast,general 16 The literature on lobbying in Congress is large.See,for example, 15 Interview with former congressional staffer,June 22,2017 Hall and Reynolds(2012)for a recent review. 879
Who Polices the Administrative State? FIGURE 1. Oversight Activity in the 110th and 111th Congresses 0 5000 10000 MSPB FLRA EEOC NRC CPSC USAID FDIC GSA Labor HUD DOT FED Energy EPA USDA DHS Off−site Inquiries 0 100 200 300 MSPB FLRA EEOC NRC CPSC USAID FDIC GSA Labor HUD DOT FED Energy EPA USDA DHS Days of Witness Testimony Note: Days of witness testimony collected through keyword searches of ProQuest Congressional; excludes appointment hearings; off-site inquiries include both casework and general policy requests, but exclude scheduling and committee-related business. conventional perspective on oversight previously described makes no distinction between the mundane, the important, or the distributive. McCubbins and Schwartz (1984) write, for example, “as part of the fire-alarm system, district staff and casework help individuals and groups—some of them otherwise powerless—to raise and redress grievances against decisions by administrative agencies” (173). Moreover, in interviews with current and former congressional staff,most considered casework “low level” oversight.15 In short, members of Congress attempting to gather information and influence any public policy may qualify as oversight of agencies. However, it is important to distinguish between the direct service of constituents (casework) and more general policy-related concerns (policy). First, legislators most often frame the content of oversight hearings as general policy concerns. This facilitates more direct comparison of this study with prior studies of hearings. Second, there are theoretical reasons to believe that casework would be only weakly associated with ideology. Members of Congress are not ideological clones of their median constituent (Tausanovitch and Warshaw 2013). Though constituent grievances are likely to be correlated with member preferences, a strong association would imply members were systematically disregarding complaints that went against those preferences. There is no evidence that members “politicize” their casework operation. In contrast, general 15 Interview with former congressional staffer, June 22, 2017. policy-related inquiries are more likely to be revealed member positions—since failing to communicate them does not mean actively disregarding the voice of a constituent. In sum, the subset of oversight requests dealing with general policy concerns should be most likely to follow the expectations laid out in the previous section. Moreover, as the previous section indicates, there is a clear conceptual distinction between oversight that requests information and those that advocate for particular policies (lobbying). Though I have argued that both should follow similar patterns, recent work by MacDonald and McGrath (2016) suggests lobbying might be negatively associated with ideological divergence. More generally, it is not difficult to construct alternative models of oversight as lobbying that produce this reversed expectation.16 Accordingly, though past research on oversight does not distinguish between hearings that fall into the above categories, I take the additional step of coding all informal oversight. Each contact is labeled either “casework” or “policy” related. I also label the contacts that are cases of “lobbying.” Complete definitions, coding rules, and diagnostics can be found in Online Appendix A2 of the Supplementary Information (SI). The contacts were classified with supervised machine learning to reduce reliance on human coders and enhance replicability. I have also removed several classes of cor- 16 The literature on lobbying in Congress is large. See, for example, Hall and Reynolds (2012) for a recent review. 879 Downloaded from https://www.cambridge.org/core. Shanghai JiaoTong University, on 26 Oct 2018 at 03:53:04, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0003055418000497
Kenneth Lowande FIGURE 2.Policy Audit(Dept.of Energy) 9 Letter to Cl/JIll Sigal from Representative Susan A.Davis Subject: Request information from DOE regarding the implementation of Executive Order 13149 entitled, "Greening the Government Through Federal Fleet and Transportation Efficiency"&how DOE have met the goals specified in the order Control Number: EXEC-2007-000145 Priority: Essential Action Office: EE Correspondence Date: 03-Jan-2007 Signature Level: EE Date Created: 09-Jan-200712:17PM Address Office: C Due Date: 23-Jan-2007 …==-nd0afa respondence that fall outside the scope of the analysis. Other policy requests are more general and indica- These include contacts about committee business(in- tive of members'ideological orientation toward an cluding scheduling,questions for the record,and con- agency's mission.In October of 2014,Senator Ted Cruz tacts related to appointments),as well as thank you sent a letter to the EPA alleging "collusion"and "cor- or congratulatory letters that do not require responses. ruption"in the agency's Office of Transportation and Excluding committee business is important,since oth- Air Quality.In March of 2009,Senator Dianne Fein- erwise,the effect of committee roles discussed later stein urged the Interior Department to maintain its ban might be driven entirely by uninteresting logistics con- on concealed carried weapons in national parks.Rep. 4号 tacts.I discuss several examples of oversight contact Steve King (R-IO).who once wrote that the United below,and report examples for every agency and cate- States could not be "restored [...with somebody else's gory in Table A4 in the SI. babies,"contacted the Department of Homeland Se- Examples of casework abound.Rep.Joseph Pitts curity in 2008 about its efforts to reduce legal immi- & (R-PA)contacted the DOE on behalf of constituents gration.8 In short,these requests are both substan- with "unsightly"natural gas regulators placed near tively meaningful and contain concerns similar to those their homes.Constituents endured this externality raised in other kinds of oversight activities. because UGI Utilities Inc.,an energy provider in western Pennsylvania,was required by agency rules. Members of Congress also make frequent requests that RESEARCH DESIGN federal funds be spent in a particular way-usually to To isolate the effect of ideological divergence on over- benefit some specific constituent.For example,Senator sight,I compare changes in oversight of a particular Russ Feingold(D-WI)contacted USAID in February agency by a particular legislator during a period that of 2007 on behalf of Marquette University (his con- includes the transition from the presidency of George stituent)to help secure an additional $50,000 for the W.Bush to Barack Obama.I rely on a generalized African democracy training program run by the Les difference-in-difference design implemented with the Aspin Center. linear probability model below19: Policy audits are also common.Senator Barbara Boxer (D-CA),for example,contacted the VA after the broadcasting of an All Things Considered episode Contactii=a+h+8,+中，+BDistanceiit+SX+ei, that described the families of veterans"tricked"out of death benefits by MetLife,Prudential,and other life where yi represents legislator fixed effects,which ac- insurance providers.17 Other policy contacts appear to counts for differences in legislative constituencies and be attempts to detect wrongdoing or policy deviation congressional office culture,8;denotes agency fixed- Then-Senator Joseph Biden(D-DE),for example,con- effects accounting for the fact that some agencies tacted the U.S.Agency for International Development perform functions inherently more likely to be over- in 2007 requesting all internal policy evaluations of funded programs.In Figure 2,Susan Davis audits the DOE's efforts to implement President Bush's execu- goo.gl/Dge79m. 9 tive order designed to reduce fuel consumption in the Since baseline probability of contact is 0.36,it is not surprising that the results of a logistic regression are nearly identical.Another con. federal vehicle fleet. cern of LPM estimation is that it yields predicted values outside the Members of Congress also lobby agencies to take bounds of 0 and 1.In this case.few y values (about 16%)fall outside specific actions.Many of these requests demand exten- this bounds.Thus,I report the LPM results for ease of interpretation sions to notice-and-comment periods in federal rule- It should also be noted that collapsing the dependent variables to di- chotomous indicators results in little information loss,because of the making or request specific changes to proposed rules. relative infrequency of contact by legislator-agency dyad.About 83% of observations are five contacts or fewer.Thus,repeated contacts are 17"Life Insurance Firms Profit from Death Benefits,"NPR.July 28 very rare.All of the findings presented in the following section are 2010.URL:http://www.npr.org/templates/story/story.php?storyld= robust to modeling the complete counts.I report one such robustness 128799983 check in Table B2 of the SI. 880
Kenneth Lowande FIGURE 2. Policy Audit (Dept. of Energy) respondence that fall outside the scope of the analysis. These include contacts about committee business (including scheduling, questions for the record, and contacts related to appointments), as well as thank you or congratulatory letters that do not require responses. Excluding committee business is important, since otherwise, the effect of committee roles discussed later might be driven entirely by uninteresting logistics contacts. I discuss several examples of oversight contact below, and report examples for every agency and category in Table A4 in the SI. Examples of casework abound. Rep. Joseph Pitts (R-PA) contacted the DOE on behalf of constituents with “unsightly” natural gas regulators placed near their homes. Constituents endured this externality because UGI Utilities Inc., an energy provider in western Pennsylvania, was required by agency rules. Members of Congress also make frequent requests that federal funds be spent in a particular way—usually to benefit some specific constituent. For example, Senator Russ Feingold (D-WI) contacted USAID in February of 2007 on behalf of Marquette University (his constituent) to help secure an additional $50,000 for the African democracy training program run by the Les Aspin Center. Policy audits are also common. Senator Barbara Boxer (D-CA), for example, contacted the VA after the broadcasting of an All Things Considered episode that described the families of veterans “tricked” out of death benefits by MetLife, Prudential, and other life insurance providers.17 Other policy contacts appear to be attempts to detect wrongdoing or policy deviation. Then-Senator Joseph Biden (D-DE), for example, contacted the U.S. Agency for International Development in 2007 requesting all internal policy evaluations of funded programs. In Figure 2, Susan Davis audits the DOE’s efforts to implement President Bush’s executive order designed to reduce fuel consumption in the federal vehicle fleet. Members of Congress also lobby agencies to take specific actions. Many of these requests demand extensions to notice-and-comment periods in federal rulemaking or request specific changes to proposed rules. 17 “Life Insurance Firms Profit from Death Benefits,” NPR, July 28, 2010. URL: http://www.npr.org/templates/story/story.php?storyId= 128799983 Other policy requests are more general and indicative of members’ ideological orientation toward an agency’s mission. In October of 2014, Senator Ted Cruz sent a letter to the EPA alleging “collusion” and “corruption” in the agency’s Office of Transportation and Air Quality. In March of 2009, Senator Dianne Feinstein urged the Interior Department to maintain its ban on concealed carried weapons in national parks. Rep. Steve King (R-IO), who once wrote that the United States could not be “restored [...] with somebody else’s babies,” contacted the Department of Homeland Security in 2008 about its efforts to reduce legal immigration.18 In short, these requests are both substantively meaningful and contain concerns similar to those raised in other kinds of oversight activities. RESEARCH DESIGN To isolate the effect of ideological divergence on oversight, I compare changes in oversight of a particular agency by a particular legislator during a period that includes the transition from the presidency of George W. Bush to Barack Obama. I rely on a generalized difference-in-difference design implemented with the linear probability model below19: Contacti jt = α + γi + δj + φt + βDistancei jt + ζX + i, where γ i represents legislator fixed effects, which accounts for differences in legislative constituencies and congressional office culture, δj denotes agency fixedeffects accounting for the fact that some agencies perform functions inherently more likely to be over- 18 goo.gl/Dge79m. 19 Since baseline probability of contact is 0.36,it is not surprising that the results of a logistic regression are nearly identical. Another concern of LPM estimation is that it yields predicted values outside the bounds of 0 and 1. In this case, few yˆ values (about 16%) fall outside this bounds. Thus, I report the LPM results for ease of interpretation. It should also be noted that collapsing the dependent variables to dichotomous indicators results in little information loss, because of the relative infrequency of contact by legislator-agency dyad.About 83% of observations are five contacts or fewer.Thus, repeated contacts are very rare. All of the findings presented in the following section are robust to modeling the complete counts. I report one such robustness check in Table B2 of the SI. 880 Downloaded from https://www.cambridge.org/core. Shanghai JiaoTong University, on 26 Oct 2018 at 03:53:04, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0003055418000497
Who Polices the Administrative State? seen by Congress.20 and is Congress fixed-effects,ac- and legislator in a given Congress.Legislator ideal 6 counting for exogenous shocks common across each points come from Carroll et al.(2015).Agency ideal Congress.21represents the effect of time-varying char- points were estimated by Chen and Johnson (2014). acteristics within districts and agencies I discuss later This provides a time-variant measure of disagreement in this section,and e;represents residuals clustered by on an interpretable and often-used scale.Chen and legislator. Johnson use campaign donations and staff composition This research design has a variety of appealing fea- to place legislators and executive agencies on a com- tures.First,all time-invariant characteristics of agen mon scale.That is,agency personnel make campaign cies and legislators will be accounted for by intercept contributions used to scale their preferences,and agen- shifts.Second.it allows me to isolate the over-time vari- cies encounter staff turnover across administrations ation in agency-ideology attributable to a change in the that change their overall ideological composition.The presidency.As I describe below,this will primarily be a key measurement assumption is that campaign con- function of staff turnover.Third,since Democrats tributions represent sincere endorsements of political maintained majorities in the House and Senate,all candidates.23 Alternative measures of agency ideology committee turnover will be unrelated to partisan based on surveys of scholars(Clinton and Lewis 2008) changes in the executive branch.This approach is most and bureaucrats(Richardson,Clinton,and Lewis 2018) similar to recent work by Berry and Fowler (2015) produce similar results.An additional concern is that Powell and Grimmer(2016),and Fouirnaies and Hall including the preferences of career bureaucrats may (2018),which employs similar designs to study district be inappropriate,since legislators are most focused on spending and campaign contributions,respectively. Senate-confirmed appointees.To address this concern, Nonetheless,restricting the analysis to 2007-2010 I also replicate the main results with mean appointee raises the concern that the results may be unique to scores from Bonica,Chen,and Johnson(2015)and leg- presidential transitions.To investigate this.I reesti- islator scores from Bonica(2013).24 The results are ro- mated the model above with an unbalanced panel of bust to this measure. 4号 additional agencies and congresses,which I report in Figure 3 plots the key variation for each agency: Table B7 of the SI.The results are robust to this spec- shifting ideal points following the transition from the ification.I also examine the volume and content of re 110th to the 111th Congress.Most agencies shift left, quests over time,to determine if transitions are asso- which is consistent with recent work by Bolton.de ciated with unique temporal trends.I plot several of Figueiredo,and Lewis(2017),which finds that the be- these time trends in Figure D1 of the SI.In general ginning of new presidential terms lead to the exit of presidential transitions do not appear to be unique in senior employees in agencies with views that diverge the content of informal oversight.but some agencies from those of the new president.This highlights the exhibit clear changes in the volume of oversight during two sources of variation:voluntary departure by ca- these periods.Thus,it is important to note that without reer officials,and political appointments.25 The expec- additional data,I cannot assess the relative uniqueness tation is that this shift left should result in conservative of the transition in question or presidential transitions members of Congress increasing their oversight of the more generally.22 administration-while we would expect liberal mem- The key independent variable is Distance,a continu- bers to do the opposite.26 ous measure of the ideological divergence between the legislator and the agency.This is the absolute Common- space DW-NOMINATE distance between the agency 2 23 Available evidence suggests that individual donors give sincerely (e.g.,Gimpel,Lee,and Pearson-Merkowitz 2008;Ensley 2009) 20 Agency mandates may dictate higher rates of comment and rec. Bonica (2013),for example,estimated dynamic measures of legis. ommendations on significant rules.Some agencies outlay billions in lator ideology based on individual donations that are both remark- competitive grants-which increases the probability of congressional ably stable and provide a worse model fit.Evidence suggests that support letters.Agencies vary meaningfully in size and scope,which corporations,legislators,and PACs give strategically (e.g.,Gordon. may promote congressional incentives to oversee their activity.A Hafer,and Landa 2007).But importantly,Bonica,Chen,and Johnson brief,descriptive look at oversight patterns suggests this is the case (2015)find no evidence that failed and confirmed appointees system- 21 This includes differences between end-of-term and beginning-of- atically differ in their giving behavior-suggesting selection among term levels of oversight,or changes in macro-economic conditions these officials is unrelated to donations.Moreover,strategic giving that might influence legislative activity. by bureaucrats should result in the attenuation of over-time differ- 22 One additional concern of focusing on a transition is that members ences.In contrast,the shifts observed in Figure 3 are substantively could be shifting their more political inquiries directly to the White significant and in the expected direction. House (i.e..target-switching).Reassuringly,agencies do occasionally I report these estimates in Appendix B1. note that the White House was "cc'ed"in the correspondence.For 25 Agency scores based on Senate-confirmed appointees (Bonica, other inquiries,log descriptions seem to suggest the letter was ad- Chen,and Johnson 2015)exhibit the same leftward shift. dressed to the president.The fact that members take care to "cc' 26 The apparent outlier is the Federal Labor Relations Authority. relevant agencies suggests that members don't leave them out of the which,from 2009-2010,was still dealing with the consequences of loop.Also,notably,the unit of observation includes total contacts underfunding.Democratic board member resignations,and a mas- over a complete Congress-so the switching would have to occur sive case backlog from the Bush administration.It was named one of over a sufficiently long period to bias in favor of the null.Members the worst small agencies to work for from 2007 to 2009("Best Places would have to consciously exclude agencies from correspondence to Work in the Federal Government,"Partnership for Public Service, relevant to the duties they perform.And members would have to 2009.URL:http://www.feddesk.com/freehandbooks/060409-1.pdf). think that overseeing agencies indirectly by contacting the president This likely explains why liberal donors were not entering the agency would be more effective.That implies that copartisans would be more during the first Obama administration.Excluding it does not influ- likely to switch targets,which would bias against the null. ence the results (see Figure B1 in the SI). 881
Who Polices the Administrative State? seen by Congress,20 and φt is Congress fixed-effects, accounting for exogenous shocks common across each Congress.21 ζ represents the effect of time-varying characteristics within districts and agencies I discuss later in this section, and i represents residuals clustered by legislator. This research design has a variety of appealing features. First, all time-invariant characteristics of agencies and legislators will be accounted for by intercept shifts. Second,it allows me to isolate the over-time variation in agency-ideology attributable to a change in the presidency. As I describe below, this will primarily be a function of staff turnover. Third, since Democrats maintained majorities in the House and Senate, all committee turnover will be unrelated to partisan changes in the executive branch. This approach is most similar to recent work by Berry and Fowler (2015), Powell and Grimmer (2016), and Fouirnaies and Hall (2018), which employs similar designs to study district spending and campaign contributions, respectively. Nonetheless, restricting the analysis to 2007-2010 raises the concern that the results may be unique to presidential transitions. To investigate this, I reestimated the model above with an unbalanced panel of additional agencies and congresses, which I report in Table B7 of the SI. The results are robust to this specification. I also examine the volume and content of requests over time, to determine if transitions are associated with unique temporal trends. I plot several of these time trends in Figure D1 of the SI. In general, presidential transitions do not appear to be unique in the content of informal oversight, but some agencies exhibit clear changes in the volume of oversight during these periods. Thus, it is important to note that without additional data, I cannot assess the relative uniqueness of the transition in question or presidential transitions, more generally. 22 The key independent variable is Distance, a continuous measure of the ideological divergence between the legislator and the agency.This is the absolute Commonspace DW-NOMINATE distance between the agency 20 Agency mandates may dictate higher rates of comment and recommendations on significant rules. Some agencies outlay billions in competitive grants—which increases the probability of congressional support letters. Agencies vary meaningfully in size and scope, which may promote congressional incentives to oversee their activity. A brief, descriptive look at oversight patterns suggests this is the case. 21 This includes differences between end-of-term and beginning-ofterm levels of oversight, or changes in macro-economic conditions that might influence legislative activity. 22 One additional concern of focusing on a transition is that members could be shifting their more political inquiries directly to the White House (i.e., target-switching). Reassuringly, agencies do occasionally note that the White House was “cc’ed” in the correspondence. For other inquiries, log descriptions seem to suggest the letter was addressed to the president. The fact that members take care to “cc” relevant agencies suggests that members don’t leave them out of the loop. Also, notably, the unit of observation includes total contacts over a complete Congress—so the switching would have to occur over a sufficiently long period to bias in favor of the null. Members would have to consciously exclude agencies from correspondence relevant to the duties they perform. And members would have to think that overseeing agencies indirectly by contacting the president would be more effective.That implies that copartisans would be more likely to switch targets, which would bias against the null. and legislator in a given Congress. Legislator ideal points come from Carroll et al. (2015). Agency ideal points were estimated by Chen and Johnson (2014). This provides a time-variant measure of disagreement on an interpretable and often-used scale. Chen and Johnson use campaign donations and staff composition to place legislators and executive agencies on a common scale. That is, agency personnel make campaign contributions used to scale their preferences, and agencies encounter staff turnover across administrations that change their overall ideological composition. The key measurement assumption is that campaign contributions represent sincere endorsements of political candidates.23 Alternative measures of agency ideology based on surveys of scholars (Clinton and Lewis 2008) and bureaucrats (Richardson, Clinton, and Lewis 2018) produce similar results. An additional concern is that including the preferences of career bureaucrats may be inappropriate, since legislators are most focused on Senate-confirmed appointees. To address this concern, I also replicate the main results with mean appointee scores from Bonica, Chen, and Johnson (2015) and legislator scores from Bonica (2013).24 The results are robust to this measure. Figure 3 plots the key variation for each agency: shifting ideal points following the transition from the 110th to the 111th Congress. Most agencies shift left, which is consistent with recent work by Bolton, de Figueiredo, and Lewis (2017), which finds that the beginning of new presidential terms lead to the exit of senior employees in agencies with views that diverge from those of the new president. This highlights the two sources of variation: voluntary departure by career officials, and political appointments.25 The expectation is that this shift left should result in conservative members of Congress increasing their oversight of the administration—while we would expect liberal members to do the opposite.26 23 Available evidence suggests that individual donors give sincerely (e.g., Gimpel, Lee, and Pearson-Merkowitz 2008; Ensley 2009). Bonica (2013), for example, estimated dynamic measures of legislator ideology based on individual donations that are both remarkably stable and provide a worse model fit. Evidence suggests that corporations, legislators, and PACs give strategically (e.g., Gordon, Hafer, and Landa 2007). But importantly, Bonica, Chen, and Johnson (2015) find no evidence that failed and confirmed appointees systematically differ in their giving behavior—suggesting selection among these officials is unrelated to donations. Moreover, strategic giving by bureaucrats should result in the attenuation of over-time differences. In contrast, the shifts observed in Figure 3 are substantively significant and in the expected direction. 24 I report these estimates in Appendix B1. 25 Agency scores based on Senate-confirmed appointees (Bonica, Chen, and Johnson 2015) exhibit the same leftward shift. 26 The apparent outlier is the Federal Labor Relations Authority, which, from 2009-2010, was still dealing with the consequences of underfunding, Democratic board member resignations, and a massive case backlog from the Bush administration. It was named one of the worst small agencies to work for from 2007 to 2009 (“Best Places to Work in the Federal Government,” Partnership for Public Service, 2009. URL: http://www.feddesk.com/freehandbooks/060409-1.pdf). This likely explains why liberal donors were not entering the agency during the first Obama administration. Excluding it does not influence the results (see Figure B1 in the SI). 881 Downloaded from https://www.cambridge.org/core. Shanghai JiaoTong University, on 26 Oct 2018 at 03:53:04, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0003055418000497
Kenneth Lowande FIGURE 3.Agency Ideology and the Transition from Bush to Obama MSPB HUD USAID Labor EPA FDIC ●1I0 th Congress USDA ●111 th Congress Energy GSA NRC DOT DHS FED FLRA 02 0.0 Agency Conservatism Note:Plots the change in agency ideology from the second Bush administration to the first Obama administration,as measured by Chen and Johnson(2014). 4号元 This approach still requires accounting for factors supplemental analyses reported in Table B9 of the SI. & that vary within agencies and legislators over time. I control for agency staff as a robustness check.Note Most importantly.I include dichotomous indicators for that because of the restricted time series,there are whether the legislator is a member,ranking minority no changes in majority party within legislator.Though member,or chair of a jurisdictionally relevant over- there are changes in presidential copartisanship,in- sight committee for the agency in question.This pro- cluding it as a covariate may lead to attenuation bias vides an important check on the validity of the de- because it is correlated with Distance.The results pre- pendent variable as a measure of oversight,since the sented later,however,are not sensitive to including it. scholarly consensus suggests that committee members should be most likely to perform oversight.That is, being assigned to (removed from)an agency's over- FINDINGS sight committee should increase (decrease)the like- A descriptive look at the data foreshadows the key lihood of informal oversight.It is also critical to reiterate that contacts explicitly related to commit- finding that follows.Figure 4 plots the Commonspace DW-NOMINATE distribution of contacts in eight tee business have been removed.Relevant oversight agencies,overlaid with the distribution of all legislators committees were determined through agency staff re- in both congresses.If the policing hypothesis was cor- sponses to the 2014 Survey on the Future of Govern- rect,we might expect them to differ.Liberal(conserva- ment Service (Richardson,forthcoming).An insignifi- tive)agencies would have more conservative (liberal) cant number of respondents reported more than one relevant committee,and these committee jurisdictions contact lists.That is not the case.KS tests suggest that none of the 16 distributions significantly differ.This do not meaningfully differ from oversight plans re- leased by Congress. provides preliminary evidence against the hypothesis, I also control for agency budget.Agency budgets ac- which the full models largely confirm.Across all model specifications,preference divergence has a negligible count for legislative changes that surely promote over- relationship with oversight activity,whereas committee sight.This is particularly important for the time se- roles and idiosyncratic differences across agencies and ries considered,since it includes the enactment of the legislators explain most variations. American Recovery and Reinvestment Act(2009).For example,among other provisions,the stimulus funded renewable energy research grants in the DOE,which Oversight and Ideology could plausibly influence Congress's collective propen- sity to oversee.Release of these funds drew some con- Table 1 reports the results across all measures of over- troversy,as Republican Senators eventually released sight contact.Overall,the estimates are consistent a list of"wasteful"spending under the stimulus.27 In across specifications and run counter to the diver- gence hypothesis.Ideological distance appears to have 27"GOP slams stimulus plan with list of 100 worst projects,"CNN. a negligible effect on oversight,whereas committee August 3,2010;URL:https://goo.gl/2hbqur membership increases the likelihood of oversight.By 882
Kenneth Lowande FIGURE 3. Agency Ideology and the Transition from Bush to Obama Note: Plots the change in agency ideology from the second Bush administration to the first Obama administration, as measured by Chen and Johnson (2014). This approach still requires accounting for factors that vary within agencies and legislators over time. Most importantly, I include dichotomous indicators for whether the legislator is a member, ranking minority member, or chair of a jurisdictionally relevant oversight committee for the agency in question. This provides an important check on the validity of the dependent variable as a measure of oversight, since the scholarly consensus suggests that committee members should be most likely to perform oversight. That is, being assigned to (removed from) an agency’s oversight committee should increase (decrease) the likelihood of informal oversight. It is also critical to reiterate that contacts explicitly related to committee business have been removed. Relevant oversight committees were determined through agency staff responses to the 2014 Survey on the Future of Government Service (Richardson, forthcoming). An insignificant number of respondents reported more than one relevant committee, and these committee jurisdictions do not meaningfully differ from oversight plans released by Congress. I also control for agency budget. Agency budgets account for legislative changes that surely promote oversight. This is particularly important for the time series considered, since it includes the enactment of the American Recovery and Reinvestment Act (2009). For example, among other provisions, the stimulus funded renewable energy research grants in the DOE, which could plausibly influence Congress’s collective propensity to oversee. Release of these funds drew some controversy, as Republican Senators eventually released a list of “wasteful” spending under the stimulus.27 In 27 “GOP slams stimulus plan with list of 100 worst projects,” CNN, August 3, 2010; URL: https://goo.gl/2hbqur supplemental analyses reported in Table B9 of the SI, I control for agency staff as a robustness check. Note that because of the restricted time series, there are no changes in majority party within legislator. Though there are changes in presidential copartisanship, including it as a covariate may lead to attenuation bias because it is correlated with Distance. The results presented later, however, are not sensitive to including it. FINDINGS A descriptive look at the data foreshadows the key finding that follows. Figure 4 plots the Commonspace DW-NOMINATE distribution of contacts in eight agencies, overlaid with the distribution of all legislators in both congresses. If the policing hypothesis was correct, we might expect them to differ. Liberal (conservative) agencies would have more conservative (liberal) contact lists. That is not the case. KS tests suggest that none of the 16 distributions significantly differ. This provides preliminary evidence against the hypothesis, which the full models largely confirm. Across all model specifications, preference divergence has a negligible relationship with oversight activity, whereas committee roles and idiosyncratic differences across agencies and legislators explain most variations. Oversight and Ideology Table 1 reports the results across all measures of oversight contact. Overall, the estimates are consistent across specifications and run counter to the divergence hypothesis. Ideological distance appears to have a negligible effect on oversight, whereas committee membership increases the likelihood of oversight. By 882 Downloaded from https://www.cambridge.org/core. Shanghai JiaoTong University, on 26 Oct 2018 at 03:53:04, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0003055418000497
Who Polices the Administrative State? FIGURE 4.Ideological Composition of Oversight EEOC Energy FDIC FED USAID 人 Note:Smoothed kernel density plots of oversight by legislator Commonspace DW-NOMINATE score(Carroll et al.2015),overlaid with Congress's overall distribution.Darker plots indicate higher oversight volume per Congress. small,given the unconditional probability of contact. TABLE 1. Oversight and Ideology 0.36.Across all measures,this is the largest (in mag- Dependent variable nitude)effect size within a confidence interval,sug- gesting the effect of distance is near zero.Moreover, Casework Policy Both even this overstates the substantive effect,since the (1) (2) (3) within-legislator standard deviation of ideological dis- tance (0.14)is much lower (see Figure B2).It implies Committee 0.039 0.066 0.063 the largest magnitude effect within a confidence inter- (0.009) (0.010) (0.009) val is a 0.7 percentage point change in the probability Chair 0.082 0.111 0.088 of oversight(Mummolo and Peterson 2018). (0.045) (0.058) (0.062) Ranking Member -0.001 0.143 0.034 One concern might be that by focusing on within- (0.058) (0.059) (0.071) legislator variation,this approach "stacks the deck" Distance 0.014 -0.001 0.015 against finding support for the divergence hypoth- (0.020) (0.019) (0.021) esis.But it is worth noting that even models that Constant 0.388 1.218 0.993 exclude legislator fixed-effects (and thus,leverage (0.372) (0.249) (0.316) cross-sectional variation in Congress)return similar re- Legislator FE sults.I report these in Appendix B2 of the SI.More- Agency FE over,given conventional concerns about nonsignificant Congress FE study results,it is important to stress that this finding is 16,455 16,455 17,552 not a function of other model specification decisions. As indicated earlier,modeling the count of contacts in Linear probability estimates of dichotomous indicator for infor- each category does not meaningfully change the result. mal legislator oversight of agency;robust standard errors clus- eys tered by legislator in parentheses;all models include over-time Table B2 of the SI reports the marginal effect of dis- controls (agency budget and legislator seniority):models (1) tance on the number of contacts.Here again,the largest and(2)exclude the FDIC due to missing contact descriptions. magnitude effect within a 95%confidence interval is about a seventh of a contact.These findings are also robust to narrowing the definition of oversight to other negligible effect,I do not mean the absence of statis- varieties of contact,including omitting casework and tical significance (Rainey 2014).In model 3,the up- requests that merely request information (Table B1). per bound of the 95%confidence interval would sug- Moreover,they are consistent across three alternative gest that a standard deviation increase in distance measures of ideological distance (Tables B3,B4,and (0.26)is associated with a 1.4 percentage-point increase B5).Thus,I argue the results provide strong evidence in the probability of oversight.This is substantively that preference divergence does not drive oversight. 883
Who Polices the Administrative State? FIGURE 4. Ideological Composition of Oversight EEOC Energy FDIC FED FLRA MSPB NRC USAID 0.0 0.5 1.0 1.5 2.0 0.0 0.5 1.0 1.5 2.0 −0.5 0.0 0.5 1.0 −0.5 0.0 0.5 1.0 −0.5 0.0 0.5 1.0 −0.5 0.0 0.5 1.0 Note: Smoothed kernel density plots of oversight by legislator Commonspace DW-NOMINATE score (Carroll et al. 2015), overlaid with Congress’s overall distribution. Darker plots indicate higher oversight volume per Congress. TABLE 1. Oversight and Ideology Dependent variable Casework Policy Both (1) (2) (3) Committee 0.039 0.066 0.063 (0.009) (0.010) (0.009) Chair 0.082 0.111 0.088 (0.045) (0.058) (0.062) Ranking Member −0.001 0.143 0.034 (0.058) (0.059) (0.071) Distance 0.014 −0.001 0.015 (0.020) (0.019) (0.021) Constant 0.388 1.218 0.993 (0.372) (0.249) (0.316) Legislator FE √ √√ Agency FE √ √√ Congress FE √ √√ N 16,455 16,455 17,552 Linear probability estimates of dichotomous indicator for informal legislator oversight of agency; robust standard errors clustered by legislator in parentheses; all models include over-time controls (agency budget and legislator seniority); models (1) . and (2) exclude the FDIC due to missing contact descriptions. negligible effect, I do not mean the absence of statistical significance (Rainey 2014). In model 3, the upper bound of the 95% confidence interval would suggest that a standard deviation increase in distance (0.26) is associated with a 1.4 percentage-point increase in the probability of oversight. This is substantively small, given the unconditional probability of contact, 0.36. Across all measures, this is the largest (in magnitude) effect size within a confidence interval, suggesting the effect of distance is near zero. Moreover, even this overstates the substantive effect, since the within-legislator standard deviation of ideological distance (0.14) is much lower (see Figure B2). It implies the largest magnitude effect within a confidence interval is a 0.7 percentage point change in the probability of oversight (Mummolo and Peterson 2018). One concern might be that by focusing on withinlegislator variation, this approach “stacks the deck” against finding support for the divergence hypothesis. But it is worth noting that even models that exclude legislator fixed-effects (and thus, leverage cross-sectional variation in Congress) return similar results. I report these in Appendix B2 of the SI. Moreover, given conventional concerns about nonsignificant study results, it is important to stress that this finding is not a function of other model specification decisions. As indicated earlier, modeling the count of contacts in each category does not meaningfully change the result. Table B2 of the SI reports the marginal effect of distance on the number of contacts.Here again, the largest magnitude effect within a 95% confidence interval is about a seventh of a contact. These findings are also robust to narrowing the definition of oversight to other varieties of contact, including omitting casework and requests that merely request information (Table B1). Moreover, they are consistent across three alternative measures of ideological distance (Tables B3, B4, and B5). Thus, I argue the results provide strong evidence that preference divergence does not drive oversight. 883 Downloaded from https://www.cambridge.org/core. Shanghai JiaoTong University, on 26 Oct 2018 at 03:53:04, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0003055418000497