Breaking Bargains: Executive-Legislative Bargaining Under Signing Statements Open Access

Moraguez, Ashley (2015)

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The American politics bargaining literature typically assumes the president has an up or down choice on legislation sent from Congress; however, presidents have other powers at their disposal. In particular, the president can issue signing statements on legislation, which manipulate outcomes after legislators have already agreed to a policy. This, I argue, undermines the stability of legislative coalitions and creates a bargaining problem in Congress. Why do legislators commit to bargains within the legislature, if the president can unravel those deals with a signing statement? To answer this question, I develop a formal model that situates congressional bargaining in a political environment in which the president can issue signing statements. I argue that this power opens up room for legislators to bargain over both their electoral and policy preferences. As a result of bargaining over both goals, legislators can rationally commit to bargains within Congress even when they anticipate a signing statement. I argue that legislators are complicit in the president's use of the signing statement and that anticipation of its use can sometimes facilitate bargains which otherwise would not have occurred. In other conditions, the signing statement can exacerbate the bargaining problem, increasing gridlock. The model yields distinct predictions about the policy process, which I evaluate in a series of empirical chapters. I derive hypotheses regarding the conditions under which signing statements should occur and the extent to which they can affect policy. I find that the legislative environment, particularly low levels of congressional polarization, incentivizes the president's use of the power. Further, I find that the resource capacity of the executive branch conditions the use of signing statements. In addition, I find that the inter-branch setting influences how far a president will push his power to issue signing statements: generally, he is more likely to issue signing statements with larger intended policy effects when he faces an ideologically hostile Congress. I conclude that the president's ability to issue signing statements not only affects the implementation of policy but also has the more subtle and pervasive effect of shaping the way in which legislators bargain over and shape legislation.

Table of Contents

Chapter 1: Introduction 1

1.1 The Puzzle of this Particular Power 4

1.2 Presidential Power & Signing Statements 7

1.2.1 Bargaining versus Unilateral Powers 7

1.2.2 A Power By Any Other Name 10

1.2.3 The Second Face of Power 12

1.3 Roadmap 14

Chapter 2: A Political History of Signing Statements 18

2.1 Historical Use of the Signing Statement 22

2.2 The Purpose Behind Institutionalization 26

2.3 But, Do They Actually Matter? 30

2.4 The Data 36

2.4.1 The Prominence of Signing Statements 40

2.4.2 The Political & Policy Context 43

2.5 Discussion 48

Chapter 3: A Theory of Bargaining 50

3.1 Theoretical Foundations 51

3.1.1 Players and the Sequence of Play 53

3.1.2 Strategies 54

3.1.3 The Players and Their Goals-An Overview 54

3.1.4 Information Setting 61

3.2 Equilibrium Analysis 64

3.2.1 Equilibrium Behavior of the President 64

3.2.2 The Legislative Veto Player's Equilibrium Behavior 69

3.2.3 The Proposer's Calculus 72

3.2.4 Equilibrium Outcomes 77

3.3 Modeling Choices 78

3.4 Discussion 79

Chapter 4: Bridging the Theoretical and the Political 82

4.1 The PATRIOT Improvement and Reauthorization Act: An Instructive Example 83

4.1.1 The Backdrop 84

4.1.2 Politics and Preferences 85

4.1.3 The Puzzling Politics 89

4.1.4 A Solution 92

4.2 Testable Implications of the Theory 96

4.2.1 Legislative Preferences and Signing Statements 96

4.2.2 Presidential Incentives & the Signing Statement 99

4.3 Discussion 104

Chapter 5: Polarization & Signing Statements 106

5.1 The Data 107

5.2 Congress-Level Analysis 110

5.3 Bill-Level Analysis 114

5.3.1 Specification and Results 116

5.3.2 Robustness Checks 121

5.4 Bush I vs. Bush II: An Examination126

5.5 Alternate Measures of Polarization 129

5.6 Discussion 132

Chapter 6: Costs, Benefits, & Signing Statements 134

6.1 The Fixed Cost to a Signing Statement: A Resource/Opportunity Cost Analysis 135

6.1.1 The Resource Cost: Size of the EOP and Signing Statements 136

6.1.2 The Opportunity Cost: Signing Statements and the Agenda 150

6.1.3 Discussion 156

6.2 The Scope of Policy Change with a Signing Statement 157

6.2.1 Operationalization and Measurement 159

6.2.2 Potential Threats to Inference 161

6.2.3 Specification and Analysis: The First Cut 163

6.2.4 Alternate Specification: Presidential Random Effects 169

6.2.5 Making Sense of George W. Bush 171

6.3 Discussion 172

Chapter 7: Conclusion 174

7.1 The Good News and the Bad News About Signing Statements 176

7.2 Future Avenues of Research 180

A Proof of Formal Results 183

A.1 President’s Subgame 183

A.2 Legislative VetoPlayer’s Subgame 187

A.3 Proposer Subgame 189

B Data Appendix 194

B.1 Signing Statement Coding: Rhetorical vs. Constitutional 194

B.2 SpecificallyChallengedSections 197

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