Congress, Foreign Policy, and the New Institutionalism
Author(s): James M. Lindsay
Source: International Studies Quarterly, Vol. 38, No. 2 (Jun., 1994), pp. 281-304
Published by: Blackwell Publishing on behalf of The International Studies Association
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InternationalStudiesQuarterly(1994) 38, 281-304
Congress,Foreign Policy, and the New
Institutionalism
JAMES M. LINDSAY
The University
ofIowa
New institutionalists
argue that analystsare mistakento separate process frompolicy in studyingCongress's role in policymaking. Rather,
Congress changes the structureand procedures of decision makingin
theexecutivebranchin orderto influencethecontentofpolicy.Attempts
to substantiatethis claim have examined procedural changes in domesticaffairs.This paper extendsthe argumentby assessingthe impact
of five procedural changes in the area of defense and foreignpolicy:
the Office of the Director of Operational Test and Evaluation, the
legislativeveto on arms sales, legislativeparticipationin trade negotiations, the conditionsattached to U.S. securityassistance,and the reportingrequirementsimposed on the intelligencecommunity.The five
case studies suggest that procedural changes do at times enable Congress to build its preferencesinto U.S. foreignpolicy,but the successes
are partial rather than total. Procedural changes meet only partial
success because of executive branch opposition and the cost of monitoringand punishing noncompliance. The findingspoint to the need
to incorporatemore sophisticatedassumptionsabout Congress and the
bureaucracyinto futureresearch.
Does Congress matter much in the making of U.S. foreign policy? For most
scholars the answer is no. On foreign policy legislation, Congress owns a rather
slim track record. The Boland amendments and the sanctions against South
Africa notwithstanding, the House and Senate remain reluctant to deny a president's foreign policy requests or to pass policies of their own. Even when
Congress succeeds in legislating the substance of U.S. foreign policy, the results
are often less than meet the eye. Legislation on foreign policy usually delegates
tremendous power to the executive branch or contains loopholes that presidents
can exploit to override congressional preferences. Thus, while foreign policy
debates on Capitol Hill are more fractious than they were twenty-fiveyears ago,
most scholars see the debates more as show than substance (see, e.g., Destler,
1986a, 1986b; Destler, Gelb, and Lake, 1984; Koh, 1988, 1990; Hinckley, 1994).
Yet the conventional wisdom on Congress's role in foreign policy is challenged
Author'snote:An earlier version of this articlewas presentedat the annual meetingof the American Political
Science Association,Washington,D.C., 29 August-2 September 1990. I would like to thankthe membersof the
Department of Political Science at the Universityof Rochester and the reviewersand editors of ISQ for their
commentson earlier draftsof thisarticle.
( 1994 International
StudiesAssociation.
Publishedby BlackwellPublishers,238 Main Street,Cambridge,MA 02142, USA, and 108 CowleyRoad, OxfordOX4
1JF,UK.
282
Congress,ForeignPolicy,and theNew Institutionalism
by the so-called new institutionalism(e.g., McCubbins and Schwartz, 1984;
Fiorina,1986; McCubbins,Noll, and Weingast,1987, 1989; Calvert,McCubbins,
and Weingast, 1989). Inspired by the literatureon principal-agentrelations,
new institutionalists
argue that traditionalstudies of Congress have erred in
treatingpolicy separatelyfromprocess. In the view of new institutionalists,
the
extensivepowers that Congress wields over the shape of the decision-making
process give it considerable say in what policy will be. As Morris Fiorina
(1981:333) puts it, "The Congress controlsthe bureaucracy,and the Congress
gives us the kind of bureaucracyit wants." From the vantage point of the new
institutionalism,
then, attentionto substantivepolicy legislationis insufficient.
Even when Congress delegates authorityto executivebranchofficialsit may still
structurethe decision-makingprocess so thatits preferredpolicies are chosen.
My objectivesin thisarticleare twofold.The firstis to use the insightsof the
new institutionalismto provide a better understandingof the role Congress
plays in foreignpolicy. In the two decades followingthe end of the Vietnam
War, Congress changed the structuresand procedures of decision making on
defense and foreignpolicyin a host of differentways.To what extentdid these
proceduralinnovationssucceed? Are some typesof proceduralinnovationmore
likelyto succeed than others?The second objectiveis to contributeto the debate
over the new institutionalism.
Untilnow, new institutionalists
have applied their
insightslargelyto domestic policy issues. The rich and varied usage of procedural innovationson foreignpolicy provides an opportunityto assess both the
extentand the limitsof the theoreticalinsightssuggestedbynew institutionalists.
The articlebegins by outliningthe basic argumentput forthby new institutionalistsand by reviewingthe fivebasic typesof procedural innovationsfound
in foreign policy. To assess the relevance of the new institutionalismto our
understandingof Congress's role in foreign policy,the article then evaluates
the impact of five procedural innovationsin the area of defense and foreign
affairs:the Office of the Director of Operational Test and Evaluation in the
Pentagon,the legislativeveto on arms sales, congressionalparticipationin trade
negotiations,the conditionsattached to U.S. securityassistance,and the reporting requirementsimposed on the intelligencecommunity.Although the five
case studiesare not representativein a strictsense-it is by no means clear what
a representativesample of procedural innovationswould look like-each case
representsa differenttypeof proceduralinnovationand involvesa differentset
of policyissues and agencies. This diversityprovidessolid groundforspeculating
both about Congress's influencein foreignpolicyand about the claims made by
new institutionalists.
The findingsfromthe fivecase studies show that procedural innovationsat
times do shape the substance of U.S. foreign policy. As new institutionalists
argue, the abilityto mandate structuresand procedures can give members of
Congressa wayto build theirpreferencesintothe policy-makingprocesswithout
having to pass substantivelegislationthat specifieshow the United States will
relate to other countries.Still,the success of procedural innovationsusually is
partialratherthan total.In none of the fivecases studiedhere did the procedural
innovation totallyfulfillits stated aims. Procedural changes meet only partial
success because of executivebranch opposition and the cost of monitoringand
punishing noncompliance. Even when members of Congress want to make a
procedural innovationwork,theymay findtheireffortsstymiedby administration obstructionism,
by the secrecythatcloaks much of the workof the foreign
policy bureaucracy,or by the difficultiesthey face in punishing agencies that
refuseto comply withthe intentof an innovation.
The findingspresentedhere suggesttwo general lessons forfutureresearch.
First,studies of Congress's role in foreignpolicyneed to pay more attentionto
JAMES
M. LINDSAY
283
how members of Congress use procedural innovations to build their policy
preferencesinto the policy-makingprocess. By emphasizingCongress's meager
trackrecord on substantivelegislationwhile neglectingits successes with procedural innovations,scholars have underestimatedthe extentof congressional
influencein foreignpolicy.
Second, the findingspresentedhere point to the need forfutureresearchon
proceduralinnovationsto incorporatemore sophisticatedassumptionsabout the
behaviorof Congress and the executivebranch. Of particularimportanceto the
study of foreign policy are the monitoringcosts and punishment costs that
attend any procedural innovation. New institutionalists
typicallyassume that
procedural innovationsare designed to force agencies to make their activities
public, which therebyallows Congress to shiftmuch of the cost of monitoring
the actionsof governmentagencies onto othergroups.Althoughthisassumption
is appropriatefordomesticpolicy,it is less appropriateforforeignpolicy,where
there frequentlyis an unquestionable need to keep agency decisions secret.
Likewise,although many new institutionalists
recognize thatthe threatof punishmentis essentialto the success of proceduralinnovations,the cost of punishment tends to be higher for foreign policy than domestic policy because the
courtsare much more willingto deferto executivediscretionin foreignaffairs.
Because Congress often faces substantiallyhigher monitoringand punishment
costs when it comes to foreignpolicy,procedural innovationsin foreignpolicy
are, all otherthingsbeing equal, less likelyto succeed thanare theircounterparts
in domesticpolicy.
New Institutionalismand Procedural Change
New institutionalists
like to point out that the need to win reelectiondampens
the incentivesmembers of Congress have to pursue substantivepolicies. Lawmakingis time-consuming.Major legislativeinitiativesoftentake years to reach
the floor,and even then a presidentialveto and the opposition of thirty-four
senators can kill the bill. Even if legislatorssuccessfullysteer a bill through
Congress, the effortmay have no electoralpayoff.Constituentsmay not know
about the bill, may not care, or, perhaps worse, may dislike it. The pursuitof
substantivepolicylegislationalso entailsopportunitycosts.The timespentbuilding a winningcoalition is time not spent in the district,on constituentservices,
or holding fund-raisers.In all, many membersmayjudge the craftingof substantivelegislationto be electorallyunprofitable.
Electoral incentivesalso can discourage membersfromproactive,systematic
reviews of agency behavior, or what is called "police-patrol"oversight(McCubbins and Schwartz,1984; fora dissentsee Aberbach, 1987, 1990). Overseeing the executivebranch is a daunting task. Most of the time agencies comply
with the intent of Congress, so oversight may not uncover abuses, leaving
memberslittleto show fortheirefforts.Where a problemdoes exist,legislators
to uncover.Bureaucraciesare notoriousforbeing reluctant
mightfinditdifficult
to provide evidence of their failures.Even when oversightuncovers noncompliance,the resultmaynot help legislatorswin reelection.The violationprobably
would not harm, or interest,constituents;hence, there is no opportunityto
garnercreditwithvoters.Nor is punishingan agencyan easy task.The necessary
correctivemay be opposed by powerful interestsin Congress or the White
House, and the agency mightretaliate.
Membersof Congress,then,findthemselvescaughtin a dilemma: influencing
agency behavior is difficultand often electorallyunrewarding,yet voters hold
them accountable for how well the governmentperforms.Legislators cannot
284
Congress,ForeignPolicy,and theNew Institutionalism
resolve the dilemma by taking on the work of the bureaucracy; delegation of
authorityis inescapable in modern government.How, then,do memberssquare
the need to ensure agency compliance withtheirown desire to win reelection?
New institutionalists
contend thatthe answerlies in structuring
decision making
in the executive branch in ways that promote executivecompliance withlegislative intent. "Alterationsin procedures will change the expected policy outcomes of administrative
agencies byaffectingtherelativeinfluenceof people who
are affectedby the policy.Moreover,because policyis controlledby participants
in administrativeprocesses,politicalofficialscan use proceduresto controlpolicy
withoutbearing costs themselves,or even having to know what policy is likely
to emerge" (McCubbins et al., 1987:254).
Procedural changes, then, constitutelabor-savingdevices. They can obviate
the need for substantivelegislationor police-patroloversightby ensuring that
congressionalpreferencesare builtinto executivebranch decisions. Innovations
can shiftthe burden of monitoringagency behavior onto the executivebranch
(e.g., officesof the inspector general) or onto interestedprivate groups (e.g.,
private sector advisory groups). And procedural changes can enable affected
groups to seek remedies fromthe agency, the courts,or Congress itself.With
procedural changes of these sortsCongress effectively
creates a systemof "firealarm" oversightthat alerts members to the issues of concern to constituents
(McCubbins and Schwartz,1984). This enables legislatorsto focuson issues that
matterto voters,and thatthus are more electorallyprofitable.The labor-saving
character of procedural changes also means that a successfulinnovation can
occur alongside a decline in traditionalindicatorsof legislativeactivity(e.g., bills
introduced,hearings,committeereports).
In recognizingthat procedural innovationsappeal to legislators,new institutionalistsdo not claim thatall changes in structureand process seek to influence
policy.Legislatorsat timesmay see procedural changes as an end in themselves
(see Mashaw, 1983, 1985). There can be a psychicutilityin seeing thatdecision
making is perceived as being fair. Legislators can also alter decision-making
structuresand proceduresto protectthemselvesfromconstituentwrath(Fionina,
1986; Weaver, 1986). Yet, innovationsprobablyaren't used veryoftensolelyto
"pass the buck" to the bureaucracy.If constituentsare intelligentand forwardlooking (as most new institutionalistsassume), they will see through blame
avoidance strategies,and the incentive to use the innovation will evaporate
(Horn and Shepsle, 1989:505). Conversely, if constituentsare ignorant of
congressionalactions,then legislatorsdo not need the protectionthe innovation
affords.
It also should be said that while analytical convenience leads many new
institutionalists
to build models of legislativebehaviorbased on the assumption
thatlegislatorsare single-mindedseekersof reelection,thatassumptionis by no
means critical.As new institutionalists
themselvesrecognize,memberswho want
to make good public policy also have reason to preferprocedural changes and
fire-alarmoversightto substantivepolicylegislationand police-patroloversight
(see, e.g., McCubbins and Schwartz,1984:167). Because proceduralchanges are
oftenseen as neutral,membersfindit easier to build a winningcoalitionaround
a procedural change than around a substantivepolicychange. Legislatorsalso
know that"an ounce of preventionis wortha pound of cure." Policybattlesare
mosteasilywon ifthe disputed policycan be strangledin the cradle. And policyoriented legislatorsalso have an incentiveto shiftthe burden for monitoring
the behavior of agencies to other groups: it freesthem to workon other issues.
As a result,the argument that new institutionalists
make about the power of
procedural innovations holds regardless of whetherone believes members of
JAMES
M. LINDSAY
285
Congress are single-mindedseekers of reelection,dedicated public servants,or
some mix of the two.
Congressional Dominance, Control, and Influence
How successful are procedural innovations in changing the behavior of the
executive branch? Here new institutionalists
disagree among themselves.The
strongestpositionhas been stakedout by the "congressionaldominance" school
(e.g., McCubbins et al., 1987, 1989). As the name suggests, proponents of
congressional dominance argue that Congress controls agency behavior. As
Terry Moe (1987) observes, however,what is meant by control is usually left
undefined.Control may mean a constrainton agency behavior-Congress tells
the bureaucracywhat not to do. While some worksin the congressionaldominance school use controlin this negative sense (e.g., Calvertet al., 1989), most
seem to use control to mean that Congress tells agencies what to do. Fiorina's
claim ("Congress gives us the kind of bureaucracy it wants") suggests the
stronger,positivesense of congressionalcontrol.
As Moe argues, the use of control in the positive sense is problematic. It
implies that bureaucracies are empty vessels that simplyfollow congressional
dictates,a tenuous assumption given what we know about executive branch
behavior.Worse yet,the assumptionof a passive bureaucracyrendersany effort
to assess the impact of changes in structureand process an exercise in nonIf a procedural change alters agency behavior, we have evidence
falsifiability.
of congressionalcontrol. If an innovationfails to change agency behavior, we
stillhave evidence of congressionalcontrol since Congress never intended for
the reformto work ("Congress gives us the kind of bureaucracyit wants").
Because the meaning of the termcontrolis open to multipleinterpretations,
the remainder of this article speaks of congressional influence rather than
congressionalcontrol. Members clearly have incentivesto change policy. PrQcedural changes can push agencies awayfromsome behaviorsand towardothers.
But success is not guaranteed. The executivebranch will tryto nullifyreforms
it opposes. On some occasions a procedural change may give Congress great
influenceover foreignpolicy,in othersituationsmoderateinfluence,and in still
othersno influence.The task then is twofold:to identifythe conditionsunder
and degree to which procedural changes succeed in achievingtheirstatedaims,
and to identifythe strategiesthat presidentsand agencies use to defeat the
intentof legislatedchanges in the structureand process of government.
Procedural Changes and Foreign Policy
In arguingthatCongressuses proceduresto influencepolicy,new institutionalists
largelyignore foreign policy. This neglect persistseven though Congress enacted numerous procedural changes on foreignpolicy in the 1970s and 1980s
and though foreignpolicy offersto test the limitsof the claim that procedure
shapes policy. Because conventionalwisdom minimizesCongress's role in foreign policy,evidence that procedural innovationsenable Congress to influence
foreign policy would add substantial support to the arguments of the new
institutionalists.
The procedural changes Congress imposes on decision making in foreign
policyfallinto fivemajor categories.The firsttypeof proceduralchange creates
new institutionsinside the executive branch that will be more sympatheticto
286
Congress,ForeignPolicy,and theNew Institutionalism
the preferencesof Congress. Here Congress proceeds froma simpleassumption
about bureaucraticlife: policies that don't have champions in the bureaucracy
are doomed. In recentyears Congress has created the Special Operations Command and the post of Undersecretaryof Defense for Acquisition to remedy
perceived deficienciesin the Department of Defense (DoD), establishedan independent inspector general's officeat the Central IntelligenceAgency (CIA)
to help prevent a repeat of the Iran-contraaffair,and directed the State Departmentto open a new bureau for South Asia as part of an effortto see that
the United States gives greateremphasis to the Indian subcontinent.
A second type of procedural innovation is the legislativeveto (see Gibson,
1992). All legislativevetoes share the same basic quid pro quo: Congress delegates authorityto the executive branch to act but reserves the right to veto
executivebranch decisions by passing a simple (one-house) or concurrent(twohouse) resolution,neitherof whichis subjectto a presidentialveto.The Supreme
Court's 1983 ruling in I.N.S. v. Chadha, however, sharply limited the use of
simple and concurrentresolutionsas legislativevetoes. Congress responded to
requirementsto the law.
Chadhain many instancesby adding "report-and-wait"
These requirementsstipulate that a policy may not go into effectfor some
specified period of time (usually thirtyor forty-five
days) after Congress is
informedof the decision. In the interim,Congress may block the policy by
passing a joint resolution.The shiftto a joint resolutionbenefitsthe president
since it is subject to a presidentialveto. The Supreme Court, however,did not
entirelyforbidlegislativevetoes. So long as theyaffectcongressionalprocedure
ratherthan policy,legislativevetoes pass constitutionalmuster(Franckand Bob,
1985:942-944). The Omnibus Trade and CompetitivenessAct of 1988, for
procedure forconsidering
instance,allows the presidentto extend the fast-track
trade agreementsas long as neitherchamberadopts a resolutionof disapproval
withinninetydays of his request for an extension.PresidentBush invoked the
provisionin March 1991 when he extended for two years the fast-trackprocedure forconsideringany agreementthat emerges fromthe Uruguay Round of
the General Agreementon Tariffsand Trade (GATT).
A third type of procedural innovation enfranchisesnew groups into the
decision-makingprocess. Underlyingthisinnovationis the beliefthatthe newly
enfranchisedgroups will push policy in the directionCongress prefers.Sometimes the newly enfranchisedgroups are existingagencies or private groups
that share the preferencesof Congress. In 1988, Congress required DoD to
solicit recommendationsfrom the Commerce Department when negotiating
agreementswithforeigngovernmentson the productionof defense equipment,
and the Trade Act of 1974 created privatesectoradvisorygroups to advise the
executive branch during trade talks. Members also legislate themselves into
decision making. Congress has mandated a formalprocess of executive-legislativeconsultationsfordrug policyand formonitoringthe HelsinkiAccord (Galey,
1985; Meyer, 1988).
A fourthtype of procedural innovationinvolvesspecifyingnew procedures
forthe executivebranch to follow.The premisehere is thatthe new procedures
willproduce decisions more to Congress's liking.Some proceduresimpose rules
the executivebranch must follow.For example, the Omnibus Trade and CompetitivenessAct of 1988 broadened the definitionof unfairtrade practicesand
terminatedthe InternationalTrade Commission'sdiscretionto investigateclaims
of dumping. The changes were designed to make it easier for injured groups
to claim relief (Nivola, 1990:235-239; O'Halloran, 1990:13-14; King,
1991:255-257). Other procedural requirementsprovide forconditionalauthorizations. Here, Congress allows the executivebranch to proceed as it sees fitso
long as certain conditions are met. Conditional authorizationsare popular on
JAMES
M. LINDSAY
287
human rightspolicy.The Jackson-VanikAmendment,forexample, barred the
presidentfromgrantingmost-favored-nation
statusto non-marketcountriesthat
deny theircitizensthe rightto emigrate(Korn, 1992). Likewise,in 1981, Congressconditionedarms sales to Chile on presidentialcertification
thatChile had
taken steps to bring the murderersof Orlando Letelier to justice (Forsythe,
1989:104).
The last major type of procedural innovationis the reportingrequirement.
As a general rule,reportingrequirementsare designed to keep Congressabreast
of executive branch behavior and therebygive members of Congress the opportunityto mobilize against policies they dislike. Current statutes contain
roughly 600 requirements for routine reports on foreign policy (Collier,
1988:75), and in the 1980s Congress requested on average 500 reports each
year fromDoD (Lindsay, 1988:61). Reportingrequirementscome in three variants (U.S. Congress, House, 1988, 1989b). Notification
provisionsrequire the
executivebranch to informCongress of agency actions or decisions. The War
Powers Resolution, for example, requires presidentsto notifyCongress when
they send U.S. troops into situationsof imminenthostilitiesand when they
substantiallyenlarge the number of U.S. troops stationed overseas. Periodic
reports
require the executivebranch to reportthe statusof programsat specified
time intervals(e.g., quarterly,semi-annually,annually) or at certainmilestones
in the life of the program (e.g., end of basic research,completionof developmental testing).For instance, since 1978 Congress has required the State Departmentto report every sixtydays on the progress of effortsto resolve the
Cyprus dispute, and since 1975 Congress has required DoD to submitannual
arms control impact statementsfor major weapons programs. One-time
reports
are requests for studies of specificissues. In recentyears such one-timereports
have covered topics as diverse as the help available for civiliansleftjobless by
the closing of militarybases, the effectof burning oil on U.S. troops in the
Persian Gulf,and the statusof any militarycooperationbetweenthe U.S.-aided
resistancein Cambodia and the Khmer Rouge (Fessler, 1991b).
How successfulare procedural innovationsin shaping foreignpolicy? The
ideal way to answer the question is to studythe universeof innovationsor some
representativesample. In practice, this strategyis impossible. Not only has
Congress enacted a myriadof differentprocedural innovations,which makes
the set of possible cases enormous, the innovationscover matterslarge and
small, which makes it difficultto determinewhat constitutesa representative
sample. An alternativestrategy,and one favoredby many new institutionalists,
is to studya specificprocedural change in the hope of gleaning more general
lessons. But the single case study strategyraises well-knowndifficultieswith
generalizability.
Faced withthese problems,I pursue a compromisestrategy.The pages that
follow explore five major procedural reforms:the Office of the Director of
Operational Test and Evaluation, the legislativeveto on arms sales, legislative
participationin trade negotiations,the conditions attached to U.S. security
assistance,and the reportingrequirementsimposed on the intelligencecommunity.Each case representsone of the five major types of procedural innovations,and each case involvesa differentset of policyissues and foreignpolicy
agencies. Althoughnot strictly
representative,the diversityof the cases provides
some basis forspeculatingboth about Congress'sinfluencein foreignpolicyand
about the claims made by the new institutionalists.
Of course, assessing congressionalinfluenceis difficult.
Two particularproblems presentthemselveshere. The firstis determiningwhat goals an innovation
is designed to achieve. Because legislatorsmay be more interestedin blame
avoidance than in affectingpolicy,the statedaims of an innovationmay not be
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Congress,ForeignPolicy,and theNew Institutionalism
what its sponsors or supporters hoped to achieve. But given the difficulty
of
determiningthe motives of individual members,let alone the motives of the
institution,
it is more reasonable to accept the public rationaleforan innovation
than to riskthe post hoc, ergopropterhoc fallacyby inferringthe legislativeintent
fromthe historyof the bill's implementation.
The second problemlies in determiningwhen proceduralinnovationssucceed
in givingCongress influenceover foreignpolicy.Many factorsbesides congressional pressureaffectexecutivebranch decision making,and these otherfactors
may produce significantpolicychanges. For the purposes of thispaper, then,a
proceduralinnovationis deemed successfulto the extentthatthe administration
has changed its policy to comply with congressionalpreferencesand no other
factorcan account for the policychange.
The Office of the Director of Operational Test and Evaluation
In 1983, Congress passed legislation creating an independent Office of the
Director of Operational Test and Evaluation (DOT&E) in the Pentagon. The
legislation,which passed overwhelminglyin both the House and Senate, came
on the heels of highlypublicized chargesthatDoD had failedto subjectweapons
systemsto realisticoperational testsand that the serviceshad manipulated test
resultsto put weapons systemsin a favorablelight.Congress assigned the new
testingofficefour distincttasks: (1) to prescribe policies and procedures for
DoD on operational testing;(2) to advise the Secretaryof Defense on relevant
budgetarymatters;(3) to review all service plans for operational testing;and,
by far the most important,(4) to evaluate the adequacy of operational testing
of individual weapons systems.To give DOT&E clout in its inevitablebattles
withthe services,Congress stipulatedthat DoD could not proceed beyond lowrate initialproductionof a weapons systemuntilDOT&E had reportedto both
Congress and the Secretaryof Defense. Congress also sought to enhance the
clout of DOT&E by stipulatingthat its Director would report directlyto the
Secretaryof Defense ratherthan to other DoD officials.And, leery'that career
militaryofficialswould be vulnerable to pressure from their parent services,
Congress directed that the Director of DOT&E be a civilian appointee (U.S.
Congress, House, 1983; Gordon, 1984a).
Despite overwhelmingcongressionalsupport forbetteroperational testingor perhaps because of it-DOT&E got off to a shaky startin the Pentagon.
Senior DoD officialshad opposed the legislationcreatingDOT&E, arguing that
an independent testingofficewas unnecessary.Having failedto stop the testing
officeat the proposal stage, DoD officialssought to derail it at the implementationstage by definingoperationaltestingso narrowlythatDOT&E would have
a limitedrole in weapons acquisition (Gordon, 1984a, 1984b). DOT&E's advocates on Capitol Hill eventuallyforced DoD to relent. Proponents of DOT&E
met with much less success, however,in convincingthe Pentagon to embrace
the testoffice.It took untilthe springof 1985, eighteenmonthsafterCongress
created DOT&E, for the Secretaryof Defense to appoint a Director,and the
appointmentcame onlyafterCongressconditionedappropriationof $40 million
for developmental testing(which is handled by a differentofficein DoD) on
the selection of a Director of DOT&E (Gordon, 1984a). Even then, the first
several Directors of DOT&E hardly fitthe profileof the 'junkyard dog" that
many in Congress envisionedwhen theycreated the post.John Krings,the first
Director of DOT&E, sparked particularanger on Capitol Hill. An Air Force
aircraftforMcDonnell Douglas forthirty
veteranwho had test-flown
years,Krings
JAMES
M. LINDSAY
289
saw his job as workingwith the services"and not to catch them when they're
wrong" (quoted in Morrison, 1987:943).
In August 1985 the testingofficeseemed to fulfillthe hopes of its sponsors
when DoD canceled the Sgt. York Division Air Defense (DIVAD) gun. Only
three days before the decision was announced, DOT&E had criticizedDIVAD
for its poor test performances.It turned out, however,that pressure to cancel
DIVAD had come fromotheragencies withinDoD; DOT&E took a tough stance
only when it became clear the program would be canceled. Congressional disappointment with DOT&E grew furtherin February 1986 when the testing
officesigned offon a Pentagon decision to move the Advanced Medium-Range
Air-to-AirMissile (AMRAAM) into production even though half of the test
missiles had malfunctionedseverelyenough to warrantbeing returnedto the
manufacturer(Morrison, 1986). Then in early 1987, legislatorslearned that
DOT&E had glossed over problems withthe avionic systemsof the B-lB in its
reportsto Congress. The Directorof DOT&E laterexplained whythe $3-billion
problem withthe avionic systemsmeritedonly fivelines in the middle of a 145page report: "What the hell are you going to tell them [membersof Congress]
for?There would have been a hell of a lot of hullabaloo. Do you thinkby telling
them theywould have been more understanding?"(quoted in Gross, 1987:8).
The DIVAD, AMRAAM, and B-lB episodes led Congress to ask the General
AccountingOffice (GAO) to study the work of DOT&E. GAO's findingsconfirmedlegislativefears. In March 1987, GAO reported that DOT&E officials
had witnessed few operational tests firsthandand that "DOT&E's analysis of
operational tests is primarilybased on militaryservice test reports with little
assessmentof actual testreports"(U.S. General AccountingOffice,1987:2). A
July 1988 GAO report reviewed six weapons programs and concluded that
"operationaltestand evaluation under DOT&E oversighthas fallenshortof the
objectivessought by the Congress when it establishedthe office"(U.S. General
Accounting Office, 1988:2). Among other shortcomings,GAO cited DOT&E
for using shoddy test methodologies, failing to keep adequate records, and
providingCongress with incomplete and inaccurate information.A May 1990
GAO reportconcluded that DOT&E "has made littleprogressin assuring that
earlier OT&E [operational testand evaluation] is planned and conducted. The
militaryservices generallyare not conducting or planning to conduct OT&E
untilafterproductionstart-up"(U.S. General AccountingOffice,1990a:2).
If DOT&E has not lived up to the expectationsof its supporterson Capitol
Hill, ithas not been a totalfailure.DOT&E has convincedthe servicesto improve
theirtest planning, although it has not convinced the servicesto initiateoperational testingbefore low-rateinitialproductionbegins (U.S. General Accounting Office,1987). The improvementsin testplanninghave influencedtheconduct
of tests. In itsJuly 1988 study GAO found evidence of a discernibleDOT&E
impactin four of the six weapons systemsexamined. DOT&E also has enlarged
its professionalstaffdespite a decline in defense spending. Whereas DOT&E
had only sixteenprofessionalstaffmembersin 1987, in 1991 the number stood
at thirty-six
(U.S. General AccountingOffice,1987; Gottschalk,1991). Still,none
of these successescan obscure the factthatDOT&E has largelyfailedin itsmain
mission of improving operational testing.
Arms Sales and the Legislative Veto
In the 1960s, U.S. weapons exports grew dramatically.Concerned that arms
sales had become a major policy tool that lay beyond congressional control,
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Congress,ForeignPolicy,and theNew Institutionalism
Congress passed several laws designed to give itselfa say in arms sales policy
(see, e.g., Sciarra, 1988; Warburg,1989; CongressionalQuarterly,1990; Gibson,
1992). In 1976 the various statuteswere incorporatedinto the ArmsExport and
Control Act. The provisionsstipulatedthat the presidentmust notifyCongress
of all major arms sales proposals and that Congress could block any sale by
passing a concurrentresolutionwithinthirtydays of the notification.The law
furtherprovided that the president could waive the thirty-daynotice, and
therebyskirtCongress, by invokingnational securityreasons. Presidentshave
invoked the waiver only twice(Kegley and Wittkopf,1991:415).
Congress has never vetoed an arms sale. The firstmajor effortto invoke the
legislativeveto against an arms sale package came in 1981 when the Reagan
administrationproposed selling five AWACS aircraftto Saudi Arabia. The
House voted to halt the sale, but the Senate fell three votes shortof blocking
the plan. When the Supreme Court ruled in 1983 that legislativevetoes are
unconstitutionalin most instances,Congress replaced the legislativeveto provisionin the Arms Export and ControlAct witha report-and-wait
requirement.
The presidentstillmust notifyCongress of all major arms sales, and Congress
has thirtydays to pass a joint resolutiondenyingthe sale. Even withthe changes
mandated by Chadha, the legislation governing arms sales did not become a
dead letter.In 1986, Congress came withinone vote of overridinga presidential
veto of a resolutiondenyingan arms sale to Saudi Arabia. The Reagan administrationwon a narrow victoryeven though it deleted the most controversial
weapons fromthe package and though it sliced the dollar value of the original
proposal by two-thirds(Crabb and Holt, 1989:118).
Although Congress has never vetoed an arms sale, it does have a say in U.S.
arms sales policy. As the evolution of the 1986 arms package to Saudi Arabia
illustrates,Congressexercisesitsinfluencemostlythrough"anticipatedreactions"
(Friedrich,1941:589-591). Examples abound of administrations
withdrawingor
modifyingproposals to forestallcongressionalopposition.Ford and Cartermodifiedseveralarms packages to bluntcriticismon Capitol Hill (Gilmourand Craig,
1984:375-376). Three timesbetween 1983 and 1985 the Reagan administration
proposed selling arms to Jordan, and all three times it withdrewthe proposal
because itjudged the package would not pass musterin Congress (Congressional
Quarterly,1990a:79-80). In 1987 the Reagan administrationwithdrewa proposal to sell arms to Saudi Arabia. The deal was subsequentlyapproved, but
only after the administrationdeleted the most contentiousitems (Kegley and
Wittkopf,1991:416). Following the Iraqi invasion of Kuwait the Bush administrationpostponed another plan to sell weapons to Saudi Arabia (Stanfield,
1991:79). Without the report-and-waitrequirementand the prospect of a legislativeveto (howeverremote),manyof these arms deals would have proceeded.
But is Congress's influenceover arms sales real? Afterall, presidentsmight
pad their initial proposals anticipatingthe need to scale down the package to
placate opponents on Capitol Hill. Yet the intensityof White House lobbying
on arms sales, the extensiverevisionsmade to manyproposals,and the factthat
public decisions to revamp arms deals strainrelationswith the client state all
suggest that the changes Congress forces in arms packages are real and not
merelythe product of executivebranch gamesmanship.
What of the fact that Congress routinelyapproves arms sales to countries
outside the Arab world? Does this mean that the legislationon arms sales is
irrelevant?Domestic politics clearly figuresin Congress's opposition to arms
sales toJordanand Saudi Arabia. Yet self-interested
behaviordoes not disqualify
the realityof congressionalinfluence,nor should it obscure the factthatthe bulk
of Americanarms sales are to the Middle East. Moreover,Congress'squiescence
on arms sales to other regions is no more evidence of congressionaldeference
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to the presidentthan it is evidence of presidentialdeferenceto Congress. The
silence of Congress on arms sales outside the Middle East more than likely
signifiescongressionalagreementwiththe president.
Legislative Participation in Trade Negotiations
The Trade Act of 1974 created a formal role for members of Congress in
internationaltrade talks.The Act stipulatesthatat the beginningof each session
of Congress fivemembersof the Senate Finance Committeeand fivemembers
of the House Ways and Means Committeebe designated officialcongressional
advisers to U.S. trade negotiations.The congressionaladvisers are entitledto
consultregularlywithU.S. negotiatorsand to participatedirectlyin trade talks.
Committeestaffalso are entitledto monitorthe talksand to attend negotiating
sessions. To remedy potential informationalimbalances between the executive
and Congress, the Act furtherdirects the administrationto keep the Senate
Finance Committee and the House Ways and Means Committee "currently
informed"on the statusof trade talks.Officiallegislativeparticipationin trade
negotiationsis now standard practice,having occurred in the Tokyo Round of
GATT, the U.S.-Canada Free Trade Pact, the North American Free Trade
Agreement,and the Uruguay Round of GATT negotiations.
The designation of officialcongressionaladvisers to trade talks is part of a
series of provisions embedded in the Trade Act of 1974 for the purpose of
increasing congressional influence over the content of trade agreements. Although the Constitutionvests in Congress the power "to regulate Commerce
withforeignNations," the Smoot-Hawleydebacle persuaded Congress to delegate authorityfor negotiatingtariffadjustmentsto the president.The preference for delegating authorityto the president persisted into the 1960s and
culminatedin the substantialtariffreductionsof the Kennedy Round. But the
agreementsreached at the Kennedy Round also stirredcomplaintsin Congress
that presidentswere too willingto sacrificedomesticeconomic interestsfor the
sake of diplomaticobjectives.Congress's ire was reflectedin its repudiation of
twoagreementsnegotiatedduringthe Kennedy Round thatwould have reduced
non-tariff
barriers(O'Halloran, 1993).
Does designating members of Congress as trade advisers mean that trade
agreementsbetterreflectcongressionalpreferences?Tojudge bytheconventional
wisdom on who mattersin U.S. trade policy, the answer is no. Although no
extended research has been done on the workof the congressionalnegotiators,
most of the major studies of U.S. trade policy minimizeCongress's role as a
player (see, e.g., Destler, 1986a, 1986b; Goldstein, 1988; Haggard, 1988). As
evidence that Congress has littlesay in the contentof trade agreements,studies
typicallypoint to the lopsided votes on the legislationthat implementstrade
agreements.The Senate approved the implementinglegislationfor the Tokyo
Round, forexample, bya vote of 90 to 4, and the House approved the legislation
by a vote of 395 to 7.
As appealing as the conventionalwisdommaybe, it suffersseveralflaws.One
is thatfloorvotes say nothingabout the balance of power betweenCongress and
the president.The implementingagreementsfor the Tokyo Round may have
passed overwhelminglyeither because Congress deferred to the president or
because the agreementsreflectedcongressionalpreferences.A second problem
is thatif,as I. M. Destler (1986b) suggests,the Trade Act of 1974 and subsequent
trade legislationfunctionmerelyto insulate Congress fromblame and not to
influencepolicy,then why don't interestgroups see throughthe ruse? And, if
protectionistsentimentincreased substantiallyin the United States in the 1970s,
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Congress,ForeignPolicy,and theNew Institutionalism
as virtuallyeveryone agrees, why did the Tokyo Round elicit less controversy
than did agreementsreached during the Kennedy Round?
Doubt about the conventionalwisdom does not establishthat congressional
negotiatorsinfluencedtradeagreements.Recenttradenegotiationsprovidesuch
evidence. During the Tokyo Round, the Carteradministrationtook the congressional advisersseriously.The administrationgave them and theirstaffaccess to
all cable trafficwith the trade delegation. Administrationofficialsalso listened
to Congress. Robert Strauss (1987:vii) writes: "During my tenure as Special
Trade Representative,I spent as much time negotiatingwithdomestic constituents (both industryand labor) and members of the U.S. Congress as I did
negotiatingwith our foreign trading partners."Other participantssay, "The
dialogue between Congress and the administrationleft the trade negotiators
witha clear idea of the political parameterswithinwhich theywere working"
(Cassidy, 1981:273; see also Twiggs, 1987:107-108).
The behavior of Congress during and afterthe Tokyo Round also suggests
thatlegislativeparticipationinfluencedthecontentofthefinalagreement.Several
of the congressionalnegotiatorswere involvedin the nitty-gritty
of the negotiations (Twiggs, 1987:107). Despite increased protectionistsentiment,Congress
made the administrationrenegotiateonly one of the agreementsreached at the
Tokyo Round (and a minorone at that). Many memberssingledout the quality
of legislative-executive
consultationsas the main reason whyCongressapproved
the implementinglegislation for the Tokyo Round (U.S. Congress, House,
1980:137; Twiggs, 1987:30-31; Gorlin, 1990:69-70). Tangible evidence of
congressional satisfactionwith the process came when Congress extended the
procedures prescribedin the 1974 Act for eight more years.
Congressional involvement in the talks on the U.S.-Canada Free Trade
Agreementhad more mixed results.When negotiationsstalled in late 1986, a
meeting between Canadian negotiatorsand congressionalnegotiatorsrevived
the talks (Congressional Record, 1988:S12783; U.S. Congress, Senate, 1988:5).
When negotiations faltered again in 1987, "congressionalsuggestions to the
negotiators helped to break the impasse, and agreement [in principle] was
reached" (U.S. Congress, House, 1989a: 102). Even withthese successes, many
legislatorslatercomplained thatthe Reagan administrationhad failedto consult
Congress adequately during the finalphase of the negotiations.Congress retaliated by forcingthe administrationto give it an extra six monthsto reviewand
shape the implementinglegislationfor the agreement.Congress also sought to
ensure greaterexecutive-legislative
consultationsin the futureby insertinglanguage in the Omnibus Trade and CompetitivenessAct of 1988 thatbroadened
the role of the congressionaladvisersand imposed substantiallygreaterreporting requirementson the executivebranch (Gorlin, 1990:67).
None of the foregoing proves that congressional participationaffectsthe
course of trade talks. Administrationofficialsmight exaggerate the role of
Congress to placate legislatorsand membersmightpraise the process because
it insulatesthem fromblame. On balance, though,participationdoes appear to
give legislatorsinfluenceover trade agreements.That is not to say thatCongress
makes trade policy-congressional participationappears to tell the administration (and America's negotiatingpartners)which proposals to avoid ratherthan
whichones to make.
Human Rights and Section 502B
In a bid to give human rightsgreaterprominencein U.S. foreignpolicy,Congressamended Section 502B of the Foreign AssistanceAct on several occasions
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in the 1970s to stipulate that U.S. securityassistance should be linked to the
human rightspracticesof recipientcountries(see Cohen, 1982). Today Section
502B holds that "no securityassistance may be provided to any countrythe
governmentof which engages in a consistentpattern of gross violations of
internationallyrecognized human rights"(quoted in Forsythe,1987:383). The
statutealso bars the export of crime control equipment to gross violatorsof
human rights.The only exception to the blanketprohibitionis a provisionthat
allows the presidentto waive Section 502B under "extraordinary
circumstances."
To ensure compliance with Section 502B, the Secretaryof State is required to
reportto Congress each year on the human rightsrecordsof aid recipients.By
simple resolution the House and Senate, as well as the Foreign AffairsCommitteeand the Foreign RelationsCommittee,mayrequire the State Department
to provide additional informationon individual countries.If the Secretaryof
State fails to provide the required informationwithinthirtydays, the aid is
automaticallyterminated.Congress may also limitor halt securityassistanceby
passing a joint resolutionto that effect.
The impact of Section 502B on U.S. policyis mixed. Neitherthe Carter nor
Reagan administrationever declared any country to be a gross violator of
human rights,though a half-dozenor so states (e.g., El Salvador, Guatemala,
Indonesia) seemed to fitthe bill. Nor did Carter or Reagan ever invoke the
extraordinarycircumstancesprovisionto exempt a countryfromthe reach of
Section 502B. If anything,both presidentssaw the statuteas impeding diplomacy. "Accordingto several State Departmentofficialsand documents,neither
the Carter nor Reagan Administrationswished to publiclylabel any countryas
a consistentand gross violatorof human rightsbecause it would be too difficult
to clear a countryof such a label once given" (U.S. General AccountingOffice,
1986:3-4).
The similaritiesin the approaches the Carter and Reagan administrations
took to observing the letterof Section 502B disappear when it comes to the
spiritof the law. Section 502B had some influenceon the Carteradministration's
decisions on securityassistance (Cohen, 1982:35; Forsythe,1987:383; Broder
and Lambek, 1988:124). Despite its public rhetoricon human rights,the administration'scompliance with the essence of Section 502B was far fromcomplete. Indonesia, for instance, continued to receive securityassistance despite
ample evidence of its human rightsabuses in East Timor. Yet the fear that
Congress would enact country-specific
legislationif Section 502B were ignored
entirelyapparentlyconvincedthe administrationto terminatesecurityassistance
to Argentina,Bolivia, El Salvador, Guatemala, Haiti, Nicaragua, Paraguay, and
Uruguay. The Carter administrationalso barred the export of crime control
equipment to several countries,includingIran and the Soviet Union.
The record of the 1980s is anotherstory.The Reagan administrationrefused
to linksecurityassistanceto human rightspractices.It also manipulatedexportcontrol regulations to circumventSection 502B's ban on the private sale of
defense items to gross violators.In 1981, for example, the administrationapproved the sale of militarycargo trucksto Guatemala a week afterthe trucks
had been removed from the list of controlled exports (Broder and Lambek,
1988:130). The administration'scontempt for Section 502B was reflectedin
congressionalbehavior; as the 1980s wore on, legislatorswho wanted security
assistance conditioned on human rightsturned their effortstoward enacting
country-specific
legislation(Forsythe,1987:385; Broder and Lambek, 1988:132143).
Despite its disdain for the core provisionsof Section 502B, the Reagan administrationdid implementthe provisionsregardingthe exportof crimecontrol
equipment.In fact,"interviewstowardthe end of the firstReagan administration
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Congress,ForeignPolicy,and theNew Institutionalism
indicatedthat in a given year Reagan's people at the State Departmentblocked
more crimecontrolequipment in the name of human rightsthan Carter'sstaff'
(Forsythe, 1987:386). On several occasions where the State Department approved the exportof crimecontrolequipmentto countriesthatpracticedtorture,
as happened with both South Africa and South Korea, news coverage of the
violationsof Section 502B combined withcongressionalpressureled the administrationto rescind its approval (Forsythe,1987:386).
Reporting Requirements and Covert Operations
Withthe passage of the Hughes-RyanAmendmentof 1974 and the Intelligence
OversightAct of 1980 Congress provided thatthe presidentmust issue a "finding" authorizingeach covertoperation and thathe must notifythe appropriate
congressionalcommitteesof the operation "in a timelyfashion"(see, e.g., Johnson, 1985; Paterson, 1987; Crabb and Holt, 1989; Schmittand Shulsky,1989;
Smist, 1990; Treverton, 1990). The reportingrequirementwas intended to
improvecongressionaloversightof intelligence.AlthoughneitherHughes-Ryan
nor the Intelligence OversightAct required the president to notifyCongress
beforelaunchinga covertoperation,proponentsbelieved the factthatCongress
would be informed eventuallywould discourage the intelligencecommunity
frompursuingquestionable operations.(The presidenthas givenCongressprior
notificationof covert operations in all but a half-dozencases since 1974; see
Schmittand Shulsky, 1989.) Failing that, proponents believed the reporting
requirementwould provide an opportunityto debate the wisdom of a covert
operation.
The Iran-contraaffairraises doubt about the effectivenessof the reporting
requirement.The traditionalreading of the affairis that William Casey and a
small group of supportersbypassed the CIA entirely,and, as a result,Congress
as well. In thisversionof the story,the CIA did not fulfillthe reportingrequifement because most of its officialswere unaware that a covert operation was
under way. A less benign view of CIA involvementcontends that CIA officials
helped to plan and administerthe arms sale and then lied to Congress about
theiractivities.Whicheverversionof Iran-contrais accurate,in thisspecificcase
the reportingrequirementfailed to preventa rogue operation, a failure that
led Congress in 1991 to tightenthe reportingrequirementeven further(see
Fessler, 1991a, 1991c).
Yet in many respects Iran-contra suggests that the reportingrequirement
does affectcovert operations. Notificationthat the United States was assisting
the contrasled the intelligencecommitteesto prohibitU.S. aid frombeing used
to overthrowthe governmentof Nicaragua. This ban evolved into the Boland
Amendments,which in turnfueled WilliamCasey's desire foran "off-the-shelf'
covert operations team that would circumventcongressionaloversight.When
the deputy director of the CIA learned that a CIA officialhad helped ship
Hawk missilesfromPortugal to Israel, he insistedthata presidentialfindingbe
issued. This demand eventuallyled PresidentReagan to sign a retroactivefinding authorizingthe CIA's involvement(Tower CommissionReport, 1987:162-175;
U.S. Congress, 1987:175-186).
The Iran-contraaffairaside, it is impossible to know how many covert operations die at birth because of anticipated reactions. As Loch Johnson
(1989:101) argues, it is likelythat "the veryrequirementof reportingon these
operations serves as a deterrentagainst madcap proposals like those that surfaced withinthe intelligencebureaucracymore easily in the past." Presidents
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occasionallygive credence to this view when theycomplain, as PresidentBush
did when explaining why the United States did not support a coup attemptin
Panama in October 1989, that congressionaloversightdiscourages covert operations(Congressional Quarterly,1990b:601-604).
Of the plans thatreach Congress,most stirlittleoppositionin the intelligence
committees.But some do. Members can use privatecommunicationswith executive branch officials,threatsto expose classifiedinformation,votes in committeeon the operation (though no vote is required), and theircontrolof the
purse stringsto convince the administrationto change its plans. Sometimes
thesestepsstop an operation. In 1978 the Senate IntelligenceCommitteedeleted
fundsforone covertoperation, therebykillingit (Johnson,1989:100). In 1983
the intelligencecommitteespersuaded PresidentReagan to rescindapproval for
a plan to fund the overthrowof the governmentof Suriname (Taubman, 1983).
In 1988, opposition by the Senate IntelligenceCommitteereportedlyderailed
a CIA plan to fund the overthrowof General Manuel Noriega (Congressional
Quarterly,1990b:603). And, in the late 1980s, the Senate IntelligenceCommittee forced the CIA to stop a covert program that funneled money to political
candidates in Haiti who opposed Jean-BertrandAristide(Bowens, 1993).
The reportingrequirement,then, has had considerable success in achieving
its avowed goals of preventingrogue operations and making the intelligence
communitymore attentiveto the views of Congress. To quote Robert M. Gates
(1987/88:224-225), then deputy directorof the CIA: "[T]he CIA today finds
itselfin a remarkable position, involuntarilypoised equidistant between the
executiveand legislativebranches.The administrationknowsthatthe CIA is in
no position to withhold much informationfrom Congress and is extremely
sensitiveto congressionaldemands; the Congress has enormous influenceand
informationyet remains suspicious and mistrustful."
Perhaps Gates overstates
how attuned the CIA is to congressionalopinion in order to appease legislators
angered by Iran-contra.Even so, the legacy of Iran-contrano doubt has been
to make the intelligencecommunityeven more sensitiveto sentimenton (iapitol
Hill.
Explaining the Mixed Success of Procedural Innovations
The fivecase studiessuggestthatproceduralinnovationscan injectcongressional
preferencesinto U.S. foreign policy. Yet none of the procedural innovations
was a complete success. Moreover,the impactof each innovationvaried. While
the legislativeveto on arms sales and the intelligencereportingrequirement
affectedpolicysignificantly,
the creationof DOT&E promptedat best marginal
improvementsin operational testing.The impact of legislativeparticipationin
trade talksand of Section 502B lies between these two extremes.
Why do procedural innovationshave a mixed record of success? One set of
explanations popular withmany foreignpolicy scholarsand some new institutionalistspoints to Congress itselfas the culprit.As mentioned earlier, procedural innovationsmight fail because they were enacted to shield members of
Congressfromblame ratherthanto influencepolicy.A second Congress-centered
explanation argues that procedural innovationshave a mixed record of success
because memberssometimesfudge keydetailsin legislationin order to assemble
a winning legislativecoalition. Administrationslater exploit the ambiguityto
defeat or blunt the intentof a procedural change. The thirdCongress-centered
explanation is more charitable to members than the firsttwo. It argues that
whateverthe motivesof the originalsupportersof a proceduralinnovation,the
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composition of Congress, hence the nature of congressional preferences,
changes over time. As congressionalpreferenceschange, so does the likelihood
thata procedural innovationwill affectthe behavior of the executivebranch.
Explanations that attributethe failureof procedural innovationsto Congress
have some merit.Blame avoidance playsan unquestionablerole in congressional
deliberationson foreignpolicy. In an institutionwith 535 members there will
alwaysbe some memberswho value formover substance.Likewise,a good deal
of legislationis imprecise. Definitionalproblems,for instance,plague the War
Powers Resolution (Katzmann, 1990:49-52). And congressional preferences
change over time. The 1980 Senate elections,for example, saw several leading
proponents of congressional activismin foreign policy replaced by senators
hostileto the procedural innovationsintroducedin the 1970s.
As illuminatingas Congress-centeredexplanations may be, there are good
reasons to doubt that they fullyexplain the success and failureof procedural
innovations.First,the logic underlyingCongress-centeredexplanations is not
entirelycompelling.The blame avoidance argument,forinstance,assumes that
constituentsare intelligentwhen it comes to demanding congressionalaction
but ignorant when it comes to assessing the consequences of congressional
action.Althoughsuch an assumptionmightfitthe average voter,it hardlyseems
to describeinterestgroups, whichhave both the incentivesand the resourcesto
distinguishbetween blame avoidance and serious legislativework. At the same
time, presidents have proven skillfulin skirtingthe intent of even precisely
craftedlaws. The Reagan administration,for example, refusedto impose sanctions that were mandatoryunder U.S. law on Japan when Japanese fishermen
violated the InternationalWhaling Commission's limitson whaling. The Supreme Court upheld the Reagan administration's
refusalto impose the sanctions
in the 1985 case of Japan Whaling Association v. American Cetacean Society (see
Silverstein,n.d.).
Second, Congress-centeredexplanationsfail to explain whysome procedural
innovationsfall short of their stated objectivesdespite vigorous congressiotial
effortsto the contrary.The armed servicescommittees,for example, went to
considerablelengthsto make DOT&E work-even going so far as to condition
fundingfor developmental testingon the appointmentof a directorfor operational testing.Likewise, the House Foreign AffairsCommittee made a concertedeffortthroughoutthe 1980s to oversee executivebranchcompliancewith
Section 502B (Forsythe,1987:404; U.S. General AccountingOffice,1990b). In
both cases the legislationwas preciselywritten.Indeed, advocates of DOT&E
beat back the effortto definethe testingofficeout of existencebecause the law
creating DOT&E specificallygave it broad powers (Gordon, 1984b:122). If
congressionalpreferencesalone mattered,then both DOT&E and Section 502B
should have influencedpolicy far more than theydid.
Third, Congress-centeredexplanations assume that the executive branch
merelyresponds to congressionalpressure. Yet everythingwe know about the
executivebranch makes thisassumptionuntenable,especiallyin foreignpolicy.
The president's policy goals often diverge sharply from those of Congress.
Foreign policy bureaucracies have a clear sense of theirown mission,and they
frequentlyuse their superior informationand expertiseto resistlegislativeeffortstheydeem undesirable (see, e.g., Aspin, 1973; Fox, 1974; Halperin, 1974;
Smith, 1988). As a result,when Congress enacts procedural changes, the executive branch usually moves to counter the effort.
Any effortto explain the success and failureof proceduralinnovations,then,
needs to look beyond Capitol Hill and to recognize the factorsthat limitthe
abilityof members of Congress to use procedural innovationsto shape policy.
The fivecases studied here suggest that three factorsare crucial: the intensity
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of executive preferences,the cost of monitoringthe executivebranch,and the
cost of punishing noncompliance.
The Intensity
of ExecutivePreferences.Procedural changes are least likely to
succeed when the executive branch vehementlyopposes them. The reporting
requirementsfor covertoperations failed to preventthe Iran-contraaffairbecause the Reagan administrationwilfullyfloutedthe law. DOT&E stumbledin
its mission because senior DoD officialsfiercelyresistedCongress's conception
of operational testing.The intensityof executivebranch preferencesalso helps
to explain whythe success of a procedural change may varyover time. Section
502B had a greater effecton the Carter administrationthan on the Reagan
administrationbecause some (but not all) senior officialsin the Carter administrationsympathizedwithCongress's objectives.
Presidentsand theirsubordinateshave ample opportunitiesto bluntthe intent
of a proceduralchange. At the extreme,the executivebranchmay simplyrefuse
to obey the law, as the Reagan administrationdid withits end run around CIA
reportingrequirementsduring the Iran-contraaffair.Far more often,officials
complywiththe letterbut not the spiritof the law (see, e.g., Aspin, 1973; Fox,
1974; Halperin, 1974; Smith, 1988). There are countless ways agencies can
legallycircumventthe law. One popular tacticis to tell Congress bad news in a
voice so low that most memberswon't hear, as DOT&E did withits report on
the B-lB. Another tacticis to writean implementingregulationthat guts the
intentof the legislation.The Reagan administrationused just this ploy when it
rewrotethe list of controlledexports to evade the restrictionson militaryassistance to Guatemala. Still another tacticused by the executivebranch to blunt
the effectof procedural change is to distortthe informationgiven to Congress.
DoD is particularlywell known for its occasionallyimaginativeuse of information; indeed, it was the perceptionthat the serviceswere playingfastand loose
withtestdata that prompted the legislationcreatingDOT&E.
The CostofMonitoringtheExecutiveBranch. The willingnessof the executive
branch to blunt procedural change means that members of Congress must
monitor the executive branch if an innovation is to succeed. But monitoring
comes at a cost. As it becomes more costlyto detectand prove noncompliance,
membersare less inclined to engage in monitoringand the executivebranch is
more inclined to ignore congressionalpreferences.
As a general rule, it is more costlyfor Congress to detect noncompliance in
foreignpolicythan in domesticpolicybecause secrecyis so much more extensive.
Yet among foreign policy issues the costs of detectingnoncompliance differ
greatly.Some types of executive behavior are relativelyeasy to track. It is
difficult,for instance,to hide a shipmentof F-15s; hence, memberscan easily
see if the administrationhas observed the thirty-day
notice on arms sales. Likewise,the factthatthe administrationultimatelymustrevealthe contentsof trade
agreementsmakes it relativelyeasy formembersof Congress to detectnoncompliance. Other types of executive behavior, however, are costly to monitor.
Covert operations pose the greatest obstacles to detection because they are
designed to be secret.
If the cost of detectingnoncompliancevaries fromissue to issue, so does the
cost of proving that noncompliance has occurred. On some issues, assessing
The reportingrequirementsfor arms sales and
compliance is straightforward.
covert operations, for instance, impose clear responsibilitieson the executive
branch.Failures to notifyCongress of an arms sale or a covertaction are beyond
dispute when found, and memberscan move directlyto debatingthe appropri-
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ate response. The prospect of punishmentin turn deters the executive from
evading congressionalintent.
The cost of provingnoncompliance rises sharply,however,when procedural
innovationshinge on subjectivejudgments. Where reasonable people can disagree over whether an agency is complying,congressional energies will be
consumed by debates over compliance ratherthan over punishment.Thus, as
long as DoD observes the letterof the law on operational testingand the State
Departmentdoes likewisein its reportson human rights,theydeny theircritics
the ammunitionneeded to marshal support forsanctionsagainst the agency or
fornew legislation.
The Cost ofPunishing Noncompliance. The success of any effortto forceagency
compliance depends ultimatelyon a crediblecommitmentby membersof Congress to punish noncompliance. As Murray Horn and Kenneth Shepsle
(1989:502) argue: "[N]either specificityin the enabling legislation,denial of
agent flexibility,
nor participationby interestedpartiesis necessarilyoptimal or
self-fulfilling;
therefore,theydo not ensure agent compliance. Ultimately,there
must be some enforcementfeature-a credible commitmentto punish." Of
course,in manyinstancesthe Supreme Court could requirethe executivebranch
to abide by a procedural innovationeven if Congress refusedto act. In practice,
however, the Court gives great deference to executive branch discretion in
foreignpolicy,oftengoing so faras to refuseto rule on foreignpolicydisputes
betweenCongress and the presidenton the grounds thatpoliticaland not legal
questions are at stake (Pritchett,1990; Uhlmann, 1990; Franck, 1991, 1992;
Silverstein,n.d.). As a result,no matterhow tightlydrawn or finelycrafted,
proceduralinnovationsin foreignpolicywillflopin the face of executivebranch
hostilityif Congress refusesto punish instancesof noncompliance.
Although the prospect of punishmentis crucial to the success of procedural
innovations,the cost of enforcingprocedural innovations(and, as a result,the
likelihood they will succeed) varies across issues. In some situationsthe very
nature of the issue makes it relativelyeasy for Congress to punish noncompliance. In the case of the intelligencereportingrequirements,for example, a
single leak may derail a covertoperation. As a result,the CIA has good reason
to anticipatethe mood on Capitol Hill in designingits proposal. The costs of
punishmentare also likelyto be low where the administrationneeds congressional consent. In the case of trade talks,for instance,no trade agreementcan
go into effectwithoutthe approval of Congress. The fact that a majorityof
either house can derail a trade agreement gives the executivebranch a strong
incentiveto listento congressionalnegotiators.
In other situationsthe nature of what membersof Congress want to accomplish may make enforcementcostly.Justas compellance is farharderto achieve
than deterrence,enforcementcosts tend to be much higher when Congress
wants agencies to adopt new policies rather than to stop existingones. The
armed servicescommitteeswere hampered in theireffortto forceDoD to place
more emphasis on operational testingbecause the traditionalpunishmentcuttingoffthe program'sfunding-was useless; the Pentagon would have been
happy to do withoutDOT&E. The committeesinstead tried to pressure DoD
by holding hostage the funding for developmental testing.As a general rule,
however,threatsto hold other programshostage are difficultto make credible.
They frequentlystumbleover policyobjections(the programbeing held hostage
is needed) or parochial concerns (don't take a program that employs my constituentshostage).
An objection that mightbe raised at this point is that members themselves
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set the costs of monitoringand punishing the executive branch. (It is hard to
argue that membersof Congress determineexecutivepreferences.)The objection has some merit. Monitoringcosts are partlya functionof the kinds of
reportingrequirementschosen and of how preciselythe legislationis written.
And whethermembersdelegate authorityto the executivebranch or hold it for
themselvesinfluencesthe cost of punishingnoncompliance.Until the Supreme
Court ruled legislative vetoes unconstitutional,for instance, members could
reduce the cost of punishing noncompliance by opting for a one-house rather
than a two-houseveto.
Nonetheless,the costs of monitoringand punishingthe executivebranch are
to a greatextentbeyond congressionalinfluence.The need forsecrecyin foreign
policylimitsthe abilityof membersto lowerthe costsof detectingnoncompliance
by shiftingthe burden of oversightonto privatesectorgroups. (While in theory
memberschoose secrecyand the higherdetectioncosts it entails,the nature of
world politics makes deciding between secrecy and openness somethingof a
Hobson's choice, and constitutionalpracticeseverelyrestrictsCongress's ability
to compel an administrationto disclose matterspertainingto diplomacy.)Some
policy goals simplyare incompatiblewithobjectivemeasures of compliance no
matterhow preciselythe law is written.And memberswillalwaysfindit harder
to compel the executive branch to adopt new policies than to block existing
ones.
Conclusion
New institutionalists
argue that traditionalstudiesof Congress have mistakenly
treated the substance of governmentpolicy separatelyfrom the process that
produces policy. According to the argumentadvanced by new institutionalists,
members of Congress can use their say over the structureand procedures of
governmentto ensure that the policies that emerge fromthe executivebranch
will reflecttheirpolicy preferences.In short,delegation is not necessarilyabdication because membersof Congress may have used procedural innovationsto
structurethe decision-makingprocess in the executivebranchin waysthatmake
it likelythat theirpreferredpolicies are chosen.
have focused theirattentionalmost solely on
Although new institutionalists
domestic policy issues, the fivecase studies presented in this articleshow that
theirargumentapplies to foreignpolicy as well. To be sure, procedural innovations are not perfectinstrumentsof congressionalinfluence.In none of the
five cases studied here did the procedural innovation totallyfulfillits stated
aims. Nonetheless, the case studies do show that procedural innovationscan
bringexecutive branch behavior more closelyinto line withthe preferencesof
Congress.
The findingspresented here suggest that the traditionalliteratureon Congress and foreign policy understatesthe extent of congressionalinfluence in
foreignpolicy making. Because most scholars have focused theirattentionon
Congress's relativelymeager trackrecord on substantivelegislation,they have
overlooked the successes that members of Congress have had in using procedural innovationsto inject theirpolicy preferencesinto the policy-makingprocess. This is not to say that foreign policy in the United States is made by
Congress, as many administrationofficialsand their sympathizersclaimed in
the 1980s (see, e.g., Rodman, 1985; Crovitzand Rabkin, 1989; Rostow, 1989).
The case studies presented here clearlyshow that the executive branch is well
positioned to blunt (if only partially)the impact of procedural innovationsit
300
Congress,ForeignPolicy,and theNew Institutionalism
dislikes.Still,procedural innovationsremain an importanttool which members
of Congress have used successfullyin theireffortsto make U.S. foreignpolicy
reflecttheirpolicy preferences.
The findingspresented here are also relevantto the literatureon the new
institutionalism.
In particular,theysuggestthat futureworkon Congress's use
of procedural innovations,whether on foreign or domestic policy, needs to
employmore sophisticatedassumptionsabout executiveand legislativebehavior.
Three such assumptionsstand out. First,futurestudiesneed to recognizemuch
more explicitlythat the relativeintensityof executive and congressionalpreferences mattersas much as the content of those preferences.On any given
issue, Congress and the executive branch may differin the intensityof their
preferences,and these differentintensitieswill have predictableconsequences
for the success of procedural innovations.Procedural change is most likelyto
succeed where executive branch opposition is low and least likelyto succeed
where executive branch opposition is high.
Second, futurestudies need to recognize that the cost to Congress of monitoringthe executive branch is not fixed; rather,it varies across policydomains
and issue areas. Most new institutionalists
assume that "agency decisions are a
matterof public record" and that "administrativeprocedures are typicallydesigned to force maximum revelation of the informationand actions of an
agency" (Calvert et al., 1989:599). Although both statementsmay be true for
much of domestic policy,quite the opposite is the case withmany defense and
foreignpolicyissues. In many (but by no means all) areas of foreignpolicy,the
need for secrecy limitsthe abilityof members of Congress to compel agency
disclosureand therebyto shiftthe cost of detectingand provingnoncompliance
onto othergroups. Afterall, no one would seriouslysuggestthatthe CIA should
be compelled to make public its intelligenceoperations or that DoD should be
required to disclose the complete resultsof its weapons testing.Again, as the
cost of detectingand proving noncompliance rises,the likelysuccess of a procedural innovationdiminishes.
Recognizingthat monitoringcosts varyacross policydomains and issue areas
does not deny the claim that membersof Congress have a greaterincentiveto
acquire informationabout executive branch behavior when the politicalstakes
in question make it worthwhileto do so. The crucial point here, however, is
thatthe enthusiasmwithwhich memberswant to acquire informationdoes not
determine the cost of acquiring that information.Indeed, while it is almost
certainlytrue that members of Congress will bear greatercosts to monitorthe
executive branch when the political stakes are high, these are precisely the
situationsin which the executive branch has the greatestincentiveto increase
Congress's monitoringcosts by misrepresentingor disguisinginformation.Indeed, on issues that are normallycloaked in great secrecy (e.g., intelligence
operations), the executive branch enjoys a tremendousinformationadvantage
over even the most intenselymotivatedmembersof Congress.
Third, futurestudies need to pay greaterattentionto the cost to Congress of
punishing instances of agency noncompliance. New institutionalists
have explored in considerable detail the relativeefficacyof ex ante and ex post controls
on executivebranch behavior. But, as already mentioned,ex ante controlswork
only to the extentthat executive branch officialsbelieve that membersof Congress are willingto punish instancesof noncompliance. If officialsbelieve that
transgressionswill go unpunished, they are free to ignore congressionalpreferences. Yet the case studies presented here show that the cost of punishment
is not fixed; rather,the cost of punishing noncompliance,like the cost of detectingit, varies across policydomains and fromissue to issue.
Of course, the cost of punishingagency transgressionsis partlyset by mem-
JAMES
M. LINDSAY
301
bers of Congress themselves;for example, the cost of punishmentdepends to
some extenton whethermembersdelegate authorityto the executivebranch or
hold it for themselves.Yet much of the cost of punishmentlies beyond the
direct control of Congress. For example, the cost of punishment is greatly
influenced by the attitudes of the courts. Over the past several decades the
Supreme Court has tended to read congressionallegislationfar more narrowly,
and presidentialprerogativefarmore broadly,in foreignaffairsthanin domestic
affairs(Silverstein,1993). Because the courtsare much more reluctantto curb
executivediscretionin foreignpolicythan theyare in domesticpolicy,Congress
is farless able to shiftthe costs of enforcingits procedural innovationsonto the
judiciary when it comes to foreignpolicy.
At the same time,the cost of punishmentalso depends on the specificstructure of executive-legislativeinteractionson an issue. Thus, in some cases Congresscan punish a transgressiononlyby overcomingits own inertiaand passing
legislation(e.g., the War Powers Resolution); in other instances Congress can
punish transgressionssimply by withholdingits approval (e.g., trade agreements),and in stillother instancesCongress can punish transgressionsthrough
non-legislativemeans (e.g., by leaking secrets).Likewise,it is far more difficult
forCongress to compel executivebranch behaviorthan to deter it. Because the
structureof executive-legislativeinteractionlies beyond congressionalcontrol,
the ability to render punishment costless does as well. And, as the cost of
punishingthe executivebranchincreases,membersof Congress findthemselves
less able to inject theirpreferencesinto the decision-makingprocess.
On a finalnote, futureresearchinto Congress'srole in foreignpolicymaking
needs to avoid becoming bogged down in a steriledebate over whetheror not
Congress controlsforeignpolicy. Not only is the meaning of "control"open to
a varietyof interpretations,
the case studiesreviewedhere show thatCongress's
impact on foreignpolicy varies considerablyacross issues. Thus the real work
lies in determiningwhen and to what effectCongress imposes its preferences
on foreignpolicy (for effortsin this direction,see Lindsay, 1994; Lindsityand
Ripley, 1993). Greater scholarlyattentionto the use of procedural innovations
will provide us with a much clearer understandingof how Congress's role in
foreignpolicyvaries across issue areas.
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