I initially selected this article from the Boston Globe, thinking it was a perfect example of the manifestation of Weingast and Moran’s model of legislative control over agencies through incentive systems of congressional committees, not to mention a rebuke to Niskanen’s “Bureaucratic Autonomy” approach. After several readings and attempts to match its assertions with those of Weingast/Moran, I realized that it wasn’t quite so clear-cut, and it actually led me to question both models of the legislative-agency relationship that we’ve studied in class.
There have been several recent incidents of corruption, bribery, logrolling, and other ethics violations in Massachusetts state and local governments, and this article states that the State Ethics Commission (read: agency) lacks adequate “tools” (read: sanctions) and laws to keep the legislature in check. Public attention to these incidents has culminated in the arrest of one Senator for bribery, led to investigations by “several agencies” into alleged monetary gifts to friends and associates of the MA State House Speaker, and inspired the establishment (by the MA governor) of a “public integrity task force” to propose ideas for new legislation to curtail this “cronyism and corruption” believed to be “rampant” by Massachusettians. The new task force recently held its “first and only public hearing,” and this public observance of sanctions should indicate (W&M) that the State Ethics Commission’s incentive system is indeed somewhat less than effective (for example: the Ethics Commission can only fine violators for up to $2,000, and also, it’s difficult to prove bribery of public officials). A former state representative attributes the problem to his belief that “state government doesn’t instill ethics and integrity,” but Weingast/Moran would probably say that it’s not morals that must be curtailed, because an effective incentive system should internalize this problem. A different news article states that “[a]fter 60 days, the task force will make recommendations to strengthen current laws, regulations, investigative and enforcement mechanisms, and penalties…” . An interesting thing to note is that the twelve-member committee has four members from the legislature, including the chairman (D) and a another member (R) of the Massachusetts Senate Ethics Committee, in addition to the chairman (D) and another member (R) of the Massachusetts House Ethics Committee.
Now to my ponderings. Again--Weingast and Moran assert that congressional committees possess sufficient rewards and sanctions to essentially constrain the output/actions of pertinent bureaus/agencies, and the power to slap the hands of those bureaus when their actions fail to satisfy the preferences of the congressional committee members. That’s all well and good, but in the case of this article, it’s an agency that is seeking greater powers (sanctions) to suppress a renegade legislature.
Maybe Weingast & Moran’s empirical evidence for Congressional Dominance is not as impressive as I initially believed. Though it’s still more convincing than Niskanen’s presuppositions, I think both are incomplete to a degree, in that they are kind of one-sided and inflexible… Nothing in the U.S. government is a one-way street—remember those good ol’ checks-and-balances between the three branches? It occurred to me that the two theories of the agency-legislative relationship don’t have to be mutually exclusive. Yes, the Legislature has power over Agencies, but the agencies are supposed to have power over the Legislature as well. But, this is more complicated than it may sound.
W&M should have specified to which agencies they were referring in their paper: not all agencies are created equal. They all fall under the heading of the executive branch of the federal government, but there are two kinds of agencies themselves: the executive agencies of the fifteen executive departments, plus the independent agencies, which are generally created by Congress and assigned responsibilities and powers through "enabling statutes" that “define the scope of an agency's authority.” And by the way, the FTC, which serves as the focus of W&M’s analysis, is one of these independent agencies -- i.e. it was established by Congress (created through the Federal Trade Commission Act in 1914), and thus Congress should have control over its behavior--by design. And yes, W&M demonstrate that it does indeed have this control. I should note, to their credit, that in W&M’s paper, they substantiate the viability of the five observations of legislative-agency behavior to Niskanen’s model, and acknowledge that Niskanen argues that sometimes these bureaus can break free of their creator: “…third, the high cost of passing new legislation to redirect agency policy limits congressional action in all but the most important cases. The resulting bureaucratic insulation afford bureaucrats a degree of discretion which, in turn, is used to pursue their own private goals rather than the public purposes for which they were originally created. According to Dodd and Schott, for example, the federal bureaucracy is ‘in many respects a prodigal child. Although born of congressional intent, it has taken on a life of its own and has matured to a point where its muscle and brawn can be turned against its creator.’”(p.768 of our W&M article).
To substantiate two of my claims about checks and balances being a two-way street between the legislative and executive branches, my mention that “several agencies” were investigating the allegations against the Massachusetts House Speaker is an example of a check of the executive branch over congress to hold “committee inquiries and hearings.” An opposing check of the legislative branch on the executive branch is the allowance for “Congressional membership on governmental commissions,” which I mentioned with the note of legislative presence on the new oversight task force/committee.
One thing I don’t understand is why Weingast and Moran never mentioned anything about the Administrative Procedure Act which primarily “establishes the protocols for agency rulemaking and decisions in agency enforcement proceedings.” I would think that should play a role in the amount of oversight Congress is allowed to inflict.