SEPARATION OF POWER AND LEGISLATIVE INSTITUTIONS: THE
CONSTITUTIONAL THEORY OF LEGISLATIVE ORGANIZATION
If a tree falls on the President, do members of the House get hurt?
Chapter 2: The Constitutional Theory of Legislative Organization
Gisela Sin
University of Michigan
Political institutions are the rules of the game. They define how legislators and
representatives are chosen, how decisions are made and which policies are adopted. By
setting limits on decision makers’ behavior, they constrain choices and actions. By
establishing ‘who’ can do ‘what,’ institutions allocate influence and resources among
individual members.
Furthermore, institutions are not neutral; they tend to distribute power unequally.
They create opportunities, impose restrictions and affect who wins and who loses in
influencing policy outcomes. Congressional institutions determine who has the power to
set the agenda and schedule floor debates on bills. Because of institutions’ ability to
shape the allocation of authority, political elites spend enormous energy and time arguing
over the rules of decision making.
Institutions are also endogenous; the same legislators that create the rules of the
game also suffer (or enjoy) their consequences. Every two years, the first decision that
legislators in the US House of Representatives make concerns the rules that will guide
and affect their decision process over the next two years. Political elites choose these
non-neutral institutions knowing they will have consequences for outcomes and their
future payoffs.
An intriguing aspect of these institutional rules is that decisions regarding their
design are largely unconstrained. The US Constitution (Article I, Section 5) places few
limitations on the House and Senate’s management structure. In most cases, a simple
majority is sufficient for altering rules: if enough members dislike a previous
organizational decision, they can change it. That the Constitution grants broad latitude to
alter the rules to the same individuals who experience the consequence of these rules
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prompts many questions about how and why members decide to distribute power
amongst themselves as they do.
Why do individuals decide that an existing power arrangement should be altered?
Why do institutions change when they do? When do these changes--which empower
some members and their constituencies at the expenses of others--happen? What is the
logic behind these decisions? By asking and addressing these questions, I clarify
common aspects of institutional design and their implications for the distribution of
power within modern legislatures. Furthermore, I suggest and provide evidence for an
endogenous theory of institutional choice.
In what follows, my primary focus is on the choice of rules and procedures in the
US House of Representatives. Previous scholars have explained the organization of the
House and its distribution of power in multiple ways. Although the specifics of the
arguments differ, all focus on member preferences. Distributional theories (Shepsle
&Weingast 1981, 1987) focus on the preferences of committee members; partisan
theories (Cox and McCubbins 1993, 2005; Aldrich and Rohde 1997, 2001) concentrate
on preferences of party members; and informational theories (Krehbiel 1991) pay
attention to the preference of the median member of the floor. In these previous theories,
institutional design is solely a consequence of House members’ preferences. If these
preferences change, then institutional arrangements and distribution of power change as
well.
In contrast to these approaches, I argue that institutions can change even if the
preferences of every member of the House are held constant. Under certain conditions, a
shift in the partisan identity of the president or in the partisan balance of the Senate is
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sufficient to induce changes to the House bargaining environment. This shift in the
bargaining environment leads to changes in the balance of power in the House.
My theoretical argument is based on the following premise: in the Constitution,
lawmaking requires more than a majority of House members; it requires a more
expansive supporting coalition that must include a majority of Senate members and may
also include the president. The need for the House to bargain with the Senate and the
president to produce a law induces House members to make different organizational
decisions than they would if they were, as commonly represented, part of an isolated
entity unaware of other branches of government. These constitutional requirements make
policy-oriented House members sensitive to changes in the partisan balance of the Senate
and/or the identity of the president. They can respond to such changes by adjusting their
own rules and procedures, altering the distribution of power in the House. In other
words, House members rationally anticipate the need to coalesce with the Senate and the
president, and incorporate that need into their institutional designs.
This theoretical approach has broader implications. It reverses the causal
direction common among theorists who treat institutions as an independent variable that
explains bargaining and outcomes. For example, Weaver and Rockman (1993:7) argue
that “Political Institutions shape the process through which decisions are made and
implemented and these in turn influence government capabilities.” In general, scholars
claim that political institutions determine important features of the system such as the
level of governing capability, collective capacity, collective responsibility and
accountability of the federal government.1 Furthermore, the field of ‘institutional
1
Linz and Valenzuela 1994, Stepan and Skatch 1993, March and Olsen 1984, Mainwaring and Shugart
1997, Shugart and Carey 1992, Epstein and O’Halloran 1999, McCubbins 1991, Jacobson 1990, Alesina
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economics’ states that “(t)he primary source of economic growth is the
institutional/organizational structure of a political economy…economic growth is
dependent on stable political/economic institutions that provide low costs of transacting
in impersonal political and economic markets” (North 1997:24).
Here, I portray institutions as a consequence of the political bargaining
environment. I argue that under certain conditions, institutional choice I s a strategic
decision that depends both on the internal bargaining environment and on external
entities with which institutions like the House has to agree. Instead of focusing on the
effect of institutions when they are treated as exogenous, I suggest and provide evidence
for an endogenous theory of institutional choice.
In what follows, I develop this theoretical argument in more detail. To emphasize
the new insights provided by my approach, I first provide a brief description of theories
that have explained institutional design in terms of House member preferences. Then, I
develop my argument with a special focus on the conditions that render distribution of
power in the House dependent on exogenous institutions and preferences. In the last
section, I explain the broader implications of my theoretical approach for institutional
analysis.
Traditional theories: Institutions are solely a result of their own member’s
preferences
Scholars have attempted to explain the balance of power in the House by
examining its organizational logic, characterizing institutional design as a response to
and Carliner 1991, Kiewiet and McCubbins 1991, Fiorina 1992, Alt and Lowry 1994, Alesina and
Rosenthal 1995, Cox and McCubbins 2001, Haggard McCubbins and Shugart 2001.
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incentives within the House itself. This conventional view of legislative organization
does not devote attention to institutions outside the House: neither the Senate nor the
president is connected to the internal functioning of the House. Previous theoretical
debates have centered on how well the internal dynamics of the House serve different
objectives. Internal institutions are designed to (1) make gains from exchange possible
(Shepsle & Weingast), (2) advance the interests of the median member (Krehbiel) or (3)
ensure the advantages of the majority party (Cox and McCubbins; Aldrich and Rohde).
All these theories, which I call “traditional theories,” claim that institutional design is a
consequence of House members’ preferences.
In what follows I will focus on the arguments these theories make when
explaining why legislatures decide to organize themselves as they do and the conditions
under which they would choose to change their internal arrangements.
Why do legislative arrangements change?
The Distributional Theory (Shepsle 1979, Shepsle &Weingast 1981, 1987, 1995;
Weingast & Marshall 1988) claims that the institutional arrangements of Congress are
designed to make gains from exchange possible. In this sense, congressional institutions
“represent solutions to particular forms of transaction problems, solutions that allow
members to capture the gains from cooperation” (Shepsle & Weingast 1995:22). The core
dilemma is that
no one perspective on the use of legislative authority is shared by enough
legislators to be decisive. Any legislator is faced with the problem of achieving
his or her purposes in a competitive environment…The logic of exchange and
cooperation is an apparent solution to this problem…In short, there are
prospective gains from exchange…But occasions for exchange are not always
simultaneous…and the flow of benefits is not always contemporaneous…Thus, a
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spot market for exchanging support will not do. (Shepsle and Weingast 1995:1011)
The solution is an institutional design that allows for exchange while easing the
problems associated with incomplete contracts: “The committee system provides
substantial protection against opportunistic behavior, thereby providing durability to
policy bargains [by institutionalizing] a trade among all the legislators, policy area by
policy area, for the right to select which points…replace the status quo” (Weingast &
Marshall 1988:144-5). By creating incentives for legislators to bid for seats in
committees relevant for their jurisdictions, the institutionalization of bargaining through a
committee system solves the problem of enforcement of agreements.
They conclude that “the foundation of committee power [consists] of gatekeeping, information advantage, and proposal power” (Shepsle and Weingast 1987:87).
Especially important in sustaining their claim is the argument that originating committees
have the last authority when selecting conferees. Shepsle and Weingast argue that
precisely because conferees come from the committee with jurisdictional rights over the
bill,
conference procedure, in which differences in legislation between the chambers of
a bicameral legislature are resolved, provides the kind of forum in which
committees get a ‘second crack’ at the bill. We believe this kind of ex post
enforcement mechanism clarifies and explains why various forms of cooperation
work in legislatures such as the US Congress despite their transparent fragility
and vulnerability. (Shepsle and Weingast 1987:90)
The Informational Theory (Krehbiel and Gilligan 1989,1990; Krehbiel 1991)
begins by observing that decisions in the legislature are made by majorities: “The
Majoritarian Postulate holds that objects of legislative choice in both the procedural and
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policy domains must be chosen by a majority of the legislature” (1991:249). As a result,
we expect majorities to make organizational decisions that would help them achieve their
objectives: “Because majoritarianism pertains to procedural choice as well as policy
choice, procedures--or legislative organization more broadly--are viewed as tools with
which a legislature may attain collective benefits of expertise” (Krehbiel 1991:99). For
example, even though the distributional theory claims that conference committees have
an ex-post veto and can manipulate decisions in the last stage in the legislative process,
Krehbiel notes that the bill still must be approved by the majority of the House and the
Senate. In this sense, “(t)he Majoritarian Postulate of legislative organization holds that
parent-chamber majorities have control over postfloor as well as other procedures”
(1991:200). In the same vein, the theory maintains that “(a) committee can never use
procedures to get the legislature to do what is not in the legislature’s interests”
(1991:101).
Partisan theories elevate parties to the central feature of legislative organization
(Cox and McCubbins 1993, 2005). Parties compete in mass elections by developing
brand names, which depend on the party’s legislative record and “have at least a
‘noticeable’ impact on the reelection probabilities of their members” (1993:120). A key
problem for legislative parties is to manage the legislative process in order to capture the
collective benefit of a coherent brand name. Through the strategic use of rules and
procedures that organize the House and distribute power among its members, “parties
capture these potential collective benefits… [and so are] more successful electorally,
more likely to prosper, than parties that do not” (1993:123). A key feature of the theory
is the ability of parties to control the agenda: which bills are considered on the floor and
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under what procedures. Agenda control can take two forms: (1) veto power and (2)
proposal power. The majority party secures agenda-setting offices (i.e. committee and
subcommittee chairs, Rules Committee and Speaker) and fills them with party members.
In other words, organizational decisions are made to help the majority party control the
agenda: “The House has structured the delegation of authority…to ensure that the
majority party has an advantage in setting the legislative agenda on both the floor and in
the committee” (1993:233).
Along the same lines, Rohde (1991) and Aldrich and Rohde (1997, 1998, 2000,
2001) have developed a conditional party government (CPG) model which begins with
the premise that the more power the majority party has in the legislature, the more
effectively it can arrange the policy making process to achieve its objectives. When large
portions of the majority party share common objectives, delegation in the majority party
leadership will increase:
CPG argument contends that party in legislature strength varies according to two
conditions: inter-party heterogeneity and intra-party homogeneity. As a majority
party becomes more distinct from the minority party, the members of the majority
party will tend to empower leadership with institutional powers that will allow
policy outcomes to move away from the floor median and towards the party
median. (Aldrich, Rohde and Tofias, 2004:24)
When do legislative arrangements change?
For Shepsle and Weingast, “committees are decentralized decision making units
composed of those legislators with the greatest stake in their jurisdiction” (Weingast &
Marshall 1988:147). Therefore, when the preferences of committee members change,
then the institutional arrangement should also change to accommodate a ‘gains from
exchange’ environment more suitable to the new preferences.
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For Krehbiel there is one focal condition for such a change: a change in the
preferences of the median member. When this happens, the existing procedures and rules
may work against the new median member’s objectives, and there can arise an incentive
to put new organizational arrangements into place: “Multiple opportunities arise
throughout the legislative process in which to change procedural course. Combined with
self-interest, the Majoritarian postulate as it pertains to procedural choice may severely
undermine institutional attempts to confer disproportionate distributive benefits to
committees” (1991:98). As a result, institutional change in the House occurs whenever
electoral shocks and other exogenous factors substantially shift the location of the median
voter on the floor.
In “Setting the Agenda” (2005), Cox and McCubbins show empirically that
agenda control has, since the 1880s, been under the command of the majority party.
Even though organizational and procedural changes have occurred, they have only meant
a redistribution of power inside the majority party, not a transfer of power to the
minority. In theory, redistribution of power is a result of changes inside the majority
party itself: when the median of the party changes, new organizational schemes and
procedures are developed to better achieve the party’s collective benefits.
In the CPG model, changes in the inter-party heterogeneity and intra-party
homogeneity should have consequences in the degree of delegation in the majority party.
“Changes in this measure (CPG) should therefore lead to changes within the institution,
so for example, when the conditions of CPG are met (intra-party preferences becoming
more homogeneous, while divergent preferences between Democrats and Republicans),
congressional members should strengthen the power of the institutional party to solve
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collective goods problems. This combination of preferences and institutional changes
should increase the likelihood of party influenced outcomes,” (Aldrich, Rohde and
Berger, 2002:15). “If the condition in CPG then exists, members will empower their party
leaders to achieve partisan goals--changing preferences should lead to institutional
changes” (Aldrich, Rohde and Berger, 2002:18).
Common features of traditional theories
Although very different in their specific arguments, the theories mentioned above
share two important assumptions:
1. They assume House members are rational, strategic and with policy objectives in
mind when deciding about rules and organization of the House.
2. They all focus exclusively on the internal dynamics of the House.
Proponents of traditional theories claim that when rational and strategic legislators decide
on internal organizational matters, they only take into account internal House politics.
Legislators either respond to distributional, informational, or partisan concerns defined
within the borders of their own chamber. If we think about the legislative process as
having three stages, as set forth in the graph below, traditional theories mostly focus on
the first and second stages.
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Preferences of
the House
Organizational
decisions in the
House
Reconciliation of
differences between
House and Senate
Constitutional stage:
House, Senate and
President react to the
joint bill
In the first stage legislators decide on a particular organizational arrangement; in
the second stage the House and Senate reconcile their differences (in conference
committees, for example) and produce a bill. In the third stage the House, Senate, and
president react to the joint bill as required by the Constitution. The preferences of House
members are the key variable that affects organizational decisions in the House.
By focusing on how institutional design favors gain from exchange, distributional
theories focus on the first two stages: legislators design a committee system with an expost veto in the Reconciliation stage. Informational theories also focus on the first two
stages: institutional design decisions are made by a majority of the House, who has veto
power even in the Reconciliation stage. Partisan theories focus mostly on the first stage:
parties organize institutions to favor party members’ preferences.2
By concentrating just on those stages and making the assumptions mentioned
above, traditional theories have very precise and distinct predictions with respect to the
timing of institutional changes in the House. They expect changes when the:
2
Krehbiel’s pivotal politics theory takes into account the three stages, with the objective of analyzing
policy outcomes from the third stage. Outcomes from the first stage are assumed to be determined by the
median member of the House and only marginally adjusted to the next stages.
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
Median member of the House changes (Informational theory);

Median member of the majority party changes (Party Cartel theory);

Majority party becomes more homogeneous and at the same time more
heterogeneous with respect to the minority party (Conditional Party Government
Theory).
All these predictions are derived by exclusively focusing on the preferences of House
members. Organizational changes are expected whenever the House undergoes
membership variation. No organizational changes should occur when House membership
is held constant.
The point of view in the traditional theories represents my null hypothesis:
institutional change occurs if and only if the preferences of the members of the institution
change.
Constitutional Theory of Legislative Organization: Legislative Institutions are a
result of the bargaining environment in which the House needs to coalesce with the
Senate and the president
Does it matter that leading theories of legislative organization focus exclusively
on the House? I claim that it does. In sharp contrast with the theories reviewed above, I
maintain that we could hold every House member’s preferences constant, and the House
could still undergo a redistribution of power. Why would this happen? Why would new
organizational arrangements emerge when preferences in the House do not change?
Counter to the intuition provided by traditional theories, I argue that changes in the
partisan balance of the Senate or the identity of the president can cause radical changes in
how House members distribute power amongst themselves.
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The first step in drawing such conclusions is to recognize the procedure by which
a bill in the House becomes a law: the typical bill comes to the floor from a House
committee. If a majority of the committee’s members and a majority of the entire
chamber pass the bill, then it becomes a law only if outside actors respond in particular
ways. Article I, Section 7 of the Constitution mandates that the House and Senate pass
the same bill. If the Senate passes a different version of a bill than the House, the two
chambers must eliminate all differences before seeking presidential approval. If neither
chamber is willing to accept the other chamber’s bill or the chambers cannot quickly
agree on a set of unifying amendments, then the chambers must negotiate their
differences in a venue such as a conference committee. If such efforts produce a bill that
both chambers and the president accept, then the joint bill--and not the original House
bill--becomes law. Otherwise, no new law is made. In other words, the Constitution
requires the House to bargain with other actors if it wants to make new laws. The
negotiations may be explicit or implicit, they may be public or private, but they are
unavoidable. So regardless of whether partisan, informational, or distributional concerns
influence House members, all of them know that the legislative consequences of their
choices depend on subsequent interactions with the Senate and president. As a result,
rational, foresighted and policy oriented House members have an incentive to incorporate
aspects of the Constitution’s Article I, Section 7 into the organizational decisions they
make under the Constitution’s Article I, Section 5. House members clearly need to
coordinate with other actors to achieve their favored outcome. Given these constitutional
requirements, it is rational for policy oriented House members to contemplate adapting
their chamber's rules and procedures to changing external circumstances. In opposition
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to traditional theories, I argue that the House’s institutional calculations depend on
characteristics of the Senate and the president.
Can rearrangements in the House’s internal organization be an effective tool to
adjust to the outside bargaining environment? Previous work on institutions shows that
rules and procedures are not neutral; they affect who wins and who losses. In this setting,
House members have an incentive to alter rules and procedures with the objective of
affecting the constitutionally required bargaining with the president and the Senate. As a
result, instead of being an exclusive product of House members’ preferences, rules and
procedures of the House depend, under certain conditions, on the identity of exogenous
actors. Settings where the preferences of the president and the Senate are very close to
preferences of the majority of the House elicit different organizational arrangements than
situations where the president and Senate’s preferences are far from those of the House.
While in the former circumstance we can imagine an institutional design that provides
flexibility to the leadership in dealing with the other branches, the latter setting would
encourage the design of rules that bestow particular House members with credible
bargaining power.
This theory, which I call the Constitutional Theory of Legislative Organization
(CTLO), links decisions regarding institutional design with the requirements to bargain
with other bodies described above. The CTLO contends that the need for the House to
bargain with the Senate and the president to produce a law induces House members to
make different organizational decisions than they would if they were, as commonly
represented, an isolated entity unaware of other chambers or branches of government.
The Constitutional theory identifies the conditions under which a House majority or the
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majority party can use institutional constraints to adapt and/or increase their bargaining
leverage vis-à-vis the president and the Senate.
This incorporation of the Senate and the president as key actors in the House
organizational decision changes our perception of the timing and causes of redistribution
of power in the House. If we characterize the legislative process as having three stages as
set forth in the graph below, the Constitutional theory leads us to consider the interplay of
all three stages when drawing conclusions about institutional design within the House.
The unique feature of the CTLO is to incorporate the anticipation by members of the
House of the Reconciliation and Constitutional stage, which in turn are a function of
preferences of the Senate, the president and the House itself.
In the first stage, legislators establish a particular organizational arrangement; in
the second stage the House and the Senate reconcile their differences (in conference
committees, for example) and produce joint bills. In the third stage, the House, Senate,
and president react to the joint bills. In the CTLO, these last two stages have a feedback
effect on the organizational decisions of the House: who occupies the White House and
which is the majority party in the Senate are anticipated by House members who respond
by distributing power in the House in a certain way.
Preferences of
the House
Organizational
decisions in the
House
Anticipation of reconciliation
and constitutional stage:
Function of the preferences of
the Senate, President and House
Reconciliation of
differences between
House and Senate
Constitutional stage:
House, Senate and
President react to the
joint bill
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By including an anticipation term, predictions about the timing and nature of
institutional change in the House are very different from the ones the literature has set
forth. The main theoretical result is that changes in the preferences of the Senate or
president, while the preferences of all House members are held constant, can produce a
significant change in the House’s balance of power. This result implies that broad claims
about the House’s organizational choices should be analyzed taking into account the
constitutional requirements of Article I, Section 7. In what follows I will explain the
process that produces this main result in more detail. Working by backwards induction,
I will specifically show why changes in the internal organization of the House should,
under certain conditions, follow changes in the Senate and/or the president.
To simplify the explanation, in what follows I will refer to a “representative bill.”
This bill represents the joint expectation of all the members on the issues for which
legislators will decide on the next legislative term and reflects an aggregation of the set of
initial bargaining positions that the House presents to the Senate in negotiations over the
ensuing legislative term. It can be consider a weighted average. While a simplification,
this common knowledge assumption is sufficient to isolate the effect of changes in the
Senate and changes in the president in the institutional design decisions of the House.
The Constitutional Stage
If the conference committee produces a joint bill, then the game’s third and final
stage begins. This stage follows constitutional requirements. House members, the Senate
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and the president consider the joint bill coming out from conference. The joint bill needs
the support of a majority to pass the House. Therefore, if a House majority and a Senate
majority support the bill, then it is sent to the president. He can either sign the bill or
veto it. If he vetoes it, then two-thirds of the House and Senate need to approve the bill
for it to become a law.
Hence, House members’ preferred outcome from a conference committee only
materializes if the Senate and president or a substantial portion of the Senate and the
House prefer the joint bill to the status quo. Thus, the House needs to reach an
agreement with the Senate and sometimes the president for a bill to become a law. If
there is no such agreement, then the game ends with the status quo as the legislative
outcome. Hence, Constitutional stage dynamics may factor into the House’s
organizational decisions.
The Reconciliation Stage
Before the bill reaches the Constitutional stage, the House and the Senate need to
approve the exact same bill. If the Senate passes a different bill, the chambers must work
together to create a unified bill. How do the House and the Senate coordinate their
preferences? During the first session of the first Congress, the Senate and the House
adopted the rules which stipulated that “in every case of an amendment to a bill agreed to
in one House and dissented to in the other, if either house shall request a conference, and
appoint a committee for that purpose, the other house shall appoint a committee to
confer” (Annals, 1st Congress, 1st session, April 1789). These rules imply that both
House and Senate have to agree not only on “identical legislative language… [but also]
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both chambers of Congress must pass precisely the same measure in precisely the same
form before it can become a law” (Bach 2001:2). After both chambers pass a bill, they
send it to the other chamber. If one of the chambers acts on the bill and passes it without
any modification, then the process is complete and the bill is sent to the president.
However, if one of the chambers amends the bill, then both chambers must resolve their
differences before the bill can become a law. They can resolve their differences by using
either one of the following two methods3: (1) shuttle the bill between the chambers either
insisting on their position or adopting the other chamber’s position until they finally
reach an agreement, or (2) meeting in a conference committee.
Once the chambers agree to a conference, a delegation from the House and the
Senate is selected to act as conferees in the negotiations. In the House, conferees are
appointed by the Speaker who has “considerable discretion, and his exercise of this
discretion cannot be challenged on the floor through a point of order” (Bach 2001:15)4.
The presiding officer in the Senate is authorized by Senators to select conferees.
However, Senators can directly select their conferees and this motion is always open for
debate and amendments. There is no limit to the number of conferees that can be
selected by each chamber, precisely because the voting rule they use does not give any
advantage to more numerous delegations: “there are only two votes: a House vote and a
Senate vote. A majority of the House managers and a majority of the Senate managers
must approve and sign the conference report. Decisions are never made by a vote among
all the conferees combined.” (Bach 2001:22). After the conference committee deliberates
3
Usually a combination of these two methods is used.
Lazarus and Monroe (2003) and Carson and Vander Wielen (2002) show empirically how speakers do use
their appointment power to manipulate conference committees to end up with outcomes closer to the party
median. In principle, the Speaker is not unconstrained in his choices--if enough members are sufficiently
displeased with the Speaker’s actions they can replace him or reduce his powers.
4
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and drafts a compromise bill, it still needs a vote from a majority of each chamber
delegation. When the conference bill has the two votes, it reaches the House and the
Senate floor where it has to be voted up or down with no possibility of amendments. 5 At
this stage legislators have to decide between the status quo and a bill that is the product of
a bargaining process between delegates from each chamber.
As a result, conference committees have the last mover-advantage in the
legislative process: this is the last instance where differences between the positions of
both chambers can be resolved. They “serve the two purposes of settling differences and
shortening procedure, purposes vital to any bicameral system” (McCown 1929:20).
Conference committees are important because of two key factors: “(1) conferees make
important policy decisions which are usually accepted by each chamber; and (2) the most
important bills usually involve conference, for example, appropriations, taxes and
defense” (Oleszek 1974:77).
Conference committees are a key element of bicameralism. They settle the
differences between the two houses and embody the institutional structure where the
national views represented by the House and the regional views represented by the Senate
meet, deliberate, and reach a decision. A joint bill from this stage emerges only if both
conferee delegations agree to it. If there is no such agreement, then the game ends with
the status quo as the legislative outcome. Thus, Reconciliation stage dynamics may
factor into the House’s organizational decisions.
5
There are some internal rules by which the House can deal with non-germane amendments inserted by the
Senate and agreed upon by the conferees. However, they only delay the process of approving the bill, but
do not give the House a ‘line item veto’ over conference reports (for more detail, see Bach 2001).
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Organizational Decisions Stage
Every two years, at the beginning of a new Congress, the House’s first order of
business is for its members to forge a new power sharing arrangement. The House
chooses the rules that will guide and constrain House members’ decisions during the next
two years: selection of leaders and distribution of power are part of this task.
Furthermore, at any point in the legislative term, if enough legislators want to change an
institutional arrangement, they can do so. How do the Constitutional and Reconciliation
stage dynamics factor into these decisions?
As explained above, the Constitution requires that both chambers, and in some
cases the Executive, agree on legislative outcomes. House members who want to achieve
a legislative objective must prevail in the Reconciliation and Constitutional stages as well
as in the initial organizational decision stage. These requirements have strategic and
substantive implications for legislative organization. Strategically, legislators anticipate
the circumstances they will come across in the subsequent stages and design a specific
distribution of power that will benefit them in these circumstances. They choose a
distribution of power that could either give them flexibility to make agreements with the
other two institutions or that would tie their hands and make a House-preferred bargain
position more credible, or a combination of the two. House members need to bargain and
reach an agreement with the Senate delegation in conference committee to be able to
draft a joint bill. That joint bill still needs to be passed by a majority in the Senate and the
House, signed by the president or approved by a special majority in the Senate and the
House.
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Substantively, the requirement of a more expansive supporting coalition that must
include a majority of Senate members and may also include the president, implies that
changes in the ideological perspective of the president and/or the Senate can alter the bills
that foresighted legislatures would send to the Reconciliation and Constitutional stages.
Such alterations, in turn, can affect the expected benefits of a distribution of power in the
House, which can change the actual agreements members of the House strike with one
another when distributing power within the chamber. The fate of the president and the
Senate and the well-being of members of the House are not independent. As a result,
changes in the Senate and the president can have a ripple effect--the distributions of
power House members are willing to accept can change depending on the preferences of
the Senate and the White House. That is, when such ripples occur, movements in the
ideal points of the Senate and president can induce House members to alter the balance of
power in the House.
Put in more concrete terms, it is possible to hold constant the ideal points of every
member of the House, change the preferences of the Senate and/or president, and observe
a change on the equilibrium power sharing arrangement in the House. A change in who
occupies the presidency and who controls the Senate can affect the relative bargain
leverage of key House members, which, in turn, can change the balance of power in the
House. Changes in the identity of the president and the balance of power in the Senate
make changes in the distribution of power in the House far more likely to happen.
In all, this approach demonstrates that long before a Congress’s first bill reaches
the president’s desk, House members who desire power, perquisites, or who care about
21
their legislative legacy have incentives to integrate the dynamics of the legislative
endgame into their plans for distributing leadership positions and procedural powers.
In conclusion distribution of power in the House is a function of the
Reconciliation and Constitutional stages. Changing the preferences of the Senate and the
president changes House legislators’ calculations about the subsequent stages of the
game. These changes can induce the legislators in the House to have different
preferences about who will have power and the kind of power they will have.
Broader Implications: Institutions as dependent variables
The CTLO holds broader theoretical implications for institutional analysis. First,
it suggests that institutional design can be better understood when treated as a dependent
variable in a bargaining environment. In such models, there may be conditions under
which the preferences and characteristics of exogenous institutions affect internal
decisions.
In contrast, conventional approaches in political science treat institutions as
independent variables that have autonomous effect on bargaining. A classic approach to
institutions holds that they “shape the process through which decisions are made and
implemented and these in turn influence government capabilities. Features such as the
extent to which decision-making is centralized, the degrees to which decisions are subject
to multiple vetoes…may affect specific capabilities” (Weaver and Rockman 1993:7).
This type of argument is common in theories that claim that “institutions matter.” For
example, Haggard, McCubbins and Shugart claim that “institutional structure, in
particular the design of separation of powers and separation of purpose, has implications
22
for the shape of public policy” (2001:320). Institutions are said to be the key feature in
facilitating or impeding democratic transition and consolidation (Linz & Valenzuela
1994, Stepan and Skatch 1993, March and Olsen 1984, Mainwaring and Shugart 1997
and Shugart and Carey 1992). In the US case, the division of power established by
presidentialism has been blamed for the existence of political deadlocks. Epstein and
O’Halloran argue that divided government causes policy making and accountability to
suffer, mainly due to the potentially lower quality of the legislation passed under divided
governments. Constitutional separation of powers with divided government has also
been blamed for dramatic increases in spending (McCubbins 1991, Jacobson 1990,
Alesina and Carliner 1991, Kiewit and McCubbins 1991, Fiorina 1992, Alt and Lowry
1994, Alesina and Rosenthal 1995). In line with this argument, the field of “institutional
economics” has claimed that the institutional structure can stimulate investment by
establishing credible commitments to policy (North and Weingast 1989, North 1990,
Levy and Spiller 1996) or reducing transaction costs (Williamson 1975, Milgrom North
and Weingast 1990, North 1990).
All these studies have one important characteristic in common: they all consider
institutions as independent variables that impose constraints and provide incentives that
produce a determined pattern of behavior. In this literature, the link between preferences
and government formation or policy outcomes depends on which rules are in effect. If
the rules change, then the link between political input and output should also change: this
is the causal effect of institutions. “Formalized structures affect the way interest group
form, the methods of aggregating political majorities and bargaining process” (Weaver
and Rockman 1993:11).
23
We can also understand institutions better by considering them as a consequence
of the bargaining environment in which they act. The different characteristics assumed
by the bargaining environments and their relationship with the institutions can be key to
understanding institutional design decisions. For example, it can help us understand why,
although many societies have implemented the institutional reforms proposed by the
‘Washington consensus’ they still have achieved neither political stability nor economic
growth. First, the Constitutional Theory of Legislative Organization implies that there is
not a one-to-one correspondence between institutions and outcomes. Furthermore, it
would suggest that institutional performance depends on the bargaining environment and
the preferences of outside institutions (i.e. trade unions, political parties, firms) with
which they need to coalesce to implement reforms. In other words, the CTLO would
suggest that in order to achieve certain desirable outcomes, institutional design decisions
must take into account the bargaining context in which institutions will act.
Conclusion
Contrary to existing studies of legislative organization, which predict changes in
the balance of power of the House only if there is a shift in the House's membership, my
dissertation argues that this balance of power can change without a single House member
changing his or her preference. Under certain conditions, a shift in the partisan identity
of the president or in the partisan balance of the Senate is sufficient to induce changes to
the House bargaining environment that lead to changes in the House's balance of power.
When the Constitutional requirements of lawmaking are included in a theoretical
framework, it becomes evident that a more expansive supporting coalition than just the
24
majority of House members is required to pass a bill. This coalition must include a
majority of Senate members and may also include the president. Such requirements can
induce policy-oriented House members to be sensitive to changes in the Senate and
presidency. Such sensitivity, in turn, can be realized through a redistribution of
bargaining power in the House, which, in turn, can influence its organizational decisions.
According to this perspective, House members anticipate upcoming bargaining
environments. Their institutional design decisions (e.g., rules changes) are, in part,
responses to such anticipation. This interchamber dynamic is not captured in the
conventional wisdom on Congress. Instead, leading theories of legislative organization in
the House treat the chamber as an isolated entity that is unaware of, and completely
insensitive to, the partisan dynamics of other key governmental actors.
In sum, I offer a theory of legislative organization that renders House institutions
endogenous, letting them be affected by the Senate and the White House, with whom
House members must coalesce to make laws. In contrast to conventional approaches,
which treat an institution as an independent variable that affects its environment, I show
that the institutional design of the House itself can be better understood as a consequence
of the larger bargaining context in which it acts.
25
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