Legislative Capacity & Administrative - Specialized Research AI at MIT

Legislative Capacity & Administrative
Power Under Divided Polarization

Sean Farhang

Conventional wisdom holds that party polarization leads to legislative gridlock,
which in turn disables congressional oversight of agencies and thus erodes their con-
stitutional legitimacy and democratic accountability. At the root of this argument
is an empirical claim that higher levels of polarization materially reduce legislative
productivity as measured by the number of laws passed or the number of issues on
the legislative agenda addressed by those laws, both of which are negatively asso-
ciated with party polarization. By focusing on the content of statutes passed rather
than their number, this essay shows that in the era of party polarization and divid-
ed government, Congress has actually 1) enacted an ever growing volume of signif-
icant regulatory policy (packaged into fewer laws); 2) increasingly employed im-
plementation designs intended to limit bureaucratic and presidential power; and
3) legislated regulatory policy substance in greater detail (reducing bureaucratic
discretion) when relying on litigation and courts as a supplement or alternative to
bureaucracy. This essay thereby complicates, both empirically and normatively, the
relationship between Congress and administrative power in the era of party polar-
ization and divided government.

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P olitical scientists and scholars in cognate disciplines have in recent years

devoted a great deal of attention to the issue of political polarization: polar-
ization of political parties, other elites, and the public; and polarization’s
causes and consequences.1 As to political parties, this literature on polarization
has identified two main dimensions. The Democratic and Republican Parties have
grown more distant from one another, and each has become more ideologically
homogenous and cohesive.2 This is a signature feature of contemporary American
politics and governance.

A clear consensus has emerged about Congress: party polarization contributes
to “stalemate,” “gridlock,” “incapacity,” and “disfunction.” Compromise is nec-
essary for a bill to navigate Congress’s many veto gates: committees, bicameral-
ism, the Senate filibuster, and a two-thirds vote in both chambers in the event of a
presidential veto. As the parties become more distant from one another and more
ideologically homogenous and internally cohesive, there is less common ground

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in their legislative agendas, less opportunity for compromise, and more incentive
to work for the opposition’s failure. In an institutionally fragmented Congress,
the result of polarization is paralysis.3

The story of contemporary party polarization has a critical wrinkle. The leg-
islative paralysis account is theoretically clearest in the context of divided gov-
ernment. If a more homogenous and cohesive party controls both chambers of
Congress and the presidency–no matter how ideologically distant from the op-
position–Congress may be more productive, not less, if the controlling party has
a sufficient margin of seats to enact statutes without support from the opposition.
Under divided government, however, cross-party negotiation and compromise
becomes necessary. The threat of legislative paralysis is most clearly present un-
der the combination of divided government and polarization.4

This combination is, of course, characteristic of our time. The most widely
used measure of party polarization is the difference between the mean scores of
Democratic and Republican members of Congress on the DW-NOMINATE ideolo-
gy scale, which is based on roll call votes.5 This distance has been steadily increas-
ing since about 1970 and, by 2020, it reached the highest level of the past century.
The frequency of divided government has grown with polarization. From 1900 to
the election of Richard Nixon in 1968, we had divided government only 20 percent
of the time. From Nixon through Trump’s first term, it was divided 69 percent of
the time. The estimated probability of divided government heading into the 2020
election was 78 percent, the highest in the past century. Figure 1 shows polariza-
tion (DW-NOMINATE averaged across the House and Senate; dotted line) and the
estimated probability of divided government over the last century. I will refer to
the era from about 1970 to the present as one of “divided polarization.”

What have been the implications of divided polarization for administrative
power? Probably the most common answer is that it enlarges administrative
power. Under a system of separation of powers and checks and balances, Con-
gress, the president, and federal courts supervise the administrative state and
maintain its fidelity to law and accountability to the electorate. But according to
the conventional wisdom just discussed, under divided polarization, Congress is
disabled by legislative gridlock, stalemate, and incapacity. Legislative oversight of
bureaucracy is a casualty. This widens agencies’ (and presidents’) policy-making
berth and increases the range of actions they can take without fear of legislative
reprisal.6

The normative implications of congressional incapacity are, not surprising-
ly, generally regarded as unhappy ones. As political scientists Michael Barber and
Nolan McCarty note: “Perhaps one of the most important long-term consequenc-
es of the decline in legislative capacity caused by polarization is that Congress’s
power is declining relative to the other branches of government.”7 The American
administrative state’s legitimacy hinges on meaningful congressional oversight to

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Dædalus, the Journal of the American Academy of Arts & SciencesLegislative Capacity & Administrative Power Under Divided Polarization

Figure 1
Polarization (Dotted Line) and Divided Government, 1921–2020

Sean Farhang

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Note: The polarization measure uses the DW-NOMINATE ideology scale, fi rst developed in
Keith Poole and Howard Rosenthal, Congress: A Political-Economic History of Roll Call Voting
(Oxford: Oxford University Press, 2000).

ensure agencies’ democratic accountability. “A perpetually gridlocked Congress,”
according to administrative law scholar Cynthia Farina, would produce “imbal-
ance in control and accountability . . . rais[ing] hard questions about the constitu-
tionality, as well as the wisdom, of an increasingly president-centered regulatory
state.”8 Scholars have identifi ed other potential implications of polarization for
bureaucracy, but here I focus only on the relationship between divided polariza-
tion, congressional capacity to legislate, and administrative power.9

The notion that divided polarization induces legislative gridlock, which dis-
ables congressional oversight of bureaucracy, is quite plausible. It is in some ten-
sion with–though does not necessarily contradict–research in political science
suggesting that divided government in the postwar United States is not clearly as-
sociated with lower levels of legislative productivity, and is associated with stra-
tegic moves by legislators facing ideologically distant presidents to craft the sub-

150 (3) Summer 2021

stance of legislation and design its implementation structures to achieve legislative goals
in the face of executive opposition. Further insights about the influence of divided
polarization on legislative capacity, and thereby on administrative power, may be
gained by examining the substance and design of legislation, not just the number
of statutes passed.

E mpirically speaking, legislative productivity is generally measured by po-

litical scientists as a function of the number of statutes passed per Con-
gress in combination with some measure of the laws’ significance.10 The
body of laws identified in political scientist David Mayhew’s landmark study of
divided government in the postwar United States has been especially influential
and extensively studied in scholarship on congressional behavior. Mayhew’s key
finding was that, contrary to widely held expectations, divided government was
not associated with the number of significant laws passed per Congress. Some lat-
er work confirmed this result, and some contradicted it using different methods
or measures.11 It seems fair to conclude from this body of work that we cannot
confidently characterize Congress as less productive under divided government.
McCarty evaluates the relationship between party polarization and the num-
ber of significant laws passed per Congress and finds a negative association: more
polarized Congresses are less productive.12 Congress scholar Sarah Binder finds
that, among issues on the legislative agenda, more polarized Congresses resolve
fewer of them by legislation.13 Such work is the principal empirical evidence cited
for the proposition that more polarized Congresses are less productive.

In the area of civil regulation, I find the relationship between legislative pro-
ductivity and our era of divided polarization to be more complex. The longitu-
dinal picture presented below is based on statutes passed from 1947 to 2008 that
were identified by Mayhew as significant and that contained any regulatory com-
mands, defined as any mandatory proscription of actions that the legislation seeks
to prevent or any mandatory requirement that the regulated population engage in
specified conduct.14 This conception of civil regulation includes such policy areas
as civil rights, consumer protection, environmental, labor, intellectual property,
banking, antitrust, and securities regulation.

The upper-left quadrant of Figure 2 shows polarization (dotted line) alongside
the number of significant regulatory statutes passed per Congress. After around
1970, as polarization grew, significant legislative enactments of regulatory laws
declined materially. This is consistent with the empirical findings of McCarty and
Binder, and the conventional wisdom that polarization in an era of divided gov-
ernment begets legislative gridlock and inaction. Passed legislation is one impor-
tant and reasonable measure of legislative productivity, but others warrant con-
sideration as well. I look at three measures that focus on the content rather than
the number of laws.

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Dædalus, the Journal of the American Academy of Arts & SciencesLegislative Capacity & Administrative Power Under Divided Polarization

Sean Farhang

Figure 2
Polarization (Dotted Line) Plotted against Number of Statutes,
Pages, Prohibitions, and Level of Speciﬁ city

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Note: I have discussed the data in greater detail in Sean Farhang, “Legislating for Litigation:
Delegation, Public Policy, and Democracy,” California Law Review 106 (2018): 1529–1614.

The fi rst is crude but suggestive. The upper-right quadrant of Figure 2 shows
the estimated number of pages (in the Statutes at Large) in the signifi cant regulato-
ry laws enacted per Congress. By this measure, legislative productivity has grown
consistently, moving upward in striking tandem with polarization. It is natural to
wonder, though, what content is actually contained in those pages. Perhaps po-

150 (3) Summer 2021

larization’s effect on the legislative process generates longer bills without corre-
spondingly greater regulatory substance.

A second approach to legislative content focuses on actual regulatory com-
mands issued by Congress. In the larger project from which the data are drawn,
coders read each law and counted each separate regulatory command, producing
a variable measuring the sum of discrete requirements and prohibitions imposed
on regulated entities.15 The estimated number of such regulatory commands en-
acted in each Congress is shown in the bottom-left quadrant of Figure 2. By this
measure, we again see long-run growth in productivity in parallel with growing
polarization.

A third approach focuses on the degree of specificity of regulatory content.
In the larger project from which the data are drawn, coders read each law and
created a word count measuring the degree of specificity of the regulatory com-
mands.16 The specificity variable is constructed as a word count with respect to
only the portions of each statute that lay out the substantive regulatory policy specifying
what conduct is prohibited or mandated.17 An illustration: The Fair Labor Standards
Act Amendments of 1949 include a regulatory command that employees be paid
overtime in an amount not less than one-and-one-half times their “regular rate.”
This command occupies only six lines of the statute. Immediately following it,
Congress provided an elaborate definition of “regular rate,” as well as extensive
exemptions to coverage. The definition and exemptions occupied an addition-
al 144 lines.18 The specificity measure registers important differences between a
spare command and one with extensive elaboration. Congress resolved more pol-
icy substance with the command, definition, and exemptions (150 lines) than it
would have with the command alone (six lines). The estimated total volume of
words captured by this specificity measure in each Congress is pictured in the bot-
tom-right quadrant of Figure 2. By this measure, we again see long-run growth in
productivity in parallel with growing polarization.

How does this growth relate to administrative power? Congress may regulate
without agencies by empowering litigants and courts rather than agencies as the
implementation vehicle for regulatory commands (discussed below). However,
Congress in fact relied primarily on agencies to implement the growing volume
of regulatory policy. When coders identified each separate regulatory command,
they also identified whether agencies were delegated authority to make substan-
tive rules, impose sanctions, or hold administrative adjudications to implement
the command.19 At least one of these three forms of regulatory power governed
88 percent of the regulatory commands. Figure 3 depicts party polarization (dot-
ted line) alongside the estimated number of regulatory commands enacted per
Congress that were governed by any of the three forms of administrative power,
and separately displays the estimated number governed by substantive rulemak-
ing, administrative sanctions, and administrative adjudications. When all three

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Dædalus, the Journal of the American Academy of Arts & SciencesLegislative Capacity & Administrative Power Under Divided Polarization

Sean Farhang

Figure 3
Polarization (Dotted Line) Plotted against Volume of Delegations
Governed by Administrative Rulemaking, Sanctions, and Adjudications

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types were aggregated, administrative power to implement the regulatory com-
mands grew steeply; the same is true with respect to rulemaking and administra-
tive sanctions. The exception is administrative adjudications, which grew steeply
starting in the mid-1950s, peaked around 1980, and declined thereafter.

From 1969 to 2008, the estimated number of signifi cant regulatory commands
enacted per Congress grew from 159 to 258, and the number of words specifying
substantive regulatory policy and the total number of pages grew by even wider

150 (3) Summer 2021

margins. Along with the number of significant statutes passed, the volume of sub-
stantive regulatory law is another (partial) measure of legislative capacity in the do-
main of regulation. From about 1970 through 2008, during which time polariza-
tion increased consistently, Congress passed an increasing volume of regulatory
commands that it entrusted to agencies for implementation.

Legislative productivity is a complicated concept. These data suggest that, over
time, Congress packed more substantive regulatory policy into fewer statutes. It
was less productive in some ways, and more productive in others. The literature
on the effect of polarization on legislative productivity and oversight, and by di-
rect extension the effect of polarization on administrative power, would be served
by a more systematic theoretical and empirical grasp of the meaning of these mul-
tiple dimensions of legislative productivity.

U nderstanding how divided polarization has shaped administrative pow-

er requires that we consider the character of delegations to agencies as
well as their number. Congressional oversight of agencies can take many
forms. A large political science literature emphasizes that one form is for Congress
to anticipate the threat of executive subversion prior to passage and diminish the
need for active post-enactment oversight by resolving more substantive policy is-
sues in the statute, and by including in the statute procedural rules intended to
constrain presidential influence, limit bureaucratic discretion, and stack the deck
in favor of the enacting coalition.20 If divided government in general is associ-
ated with greater antagonism between Congress and the president, and this af-
fects how Congress fashions administrative power, then growing polarization will
heighten that antagonism and the corresponding effects.

Political scientists John Huber and Charles Shipan, studying state legislatures,
found that divided government leads to more detailed laws, with detail measured
by a law’s word count.21 Facing an opposing executive, the legislature has greater
incentives to nail down policy in more detail in the statute, increasing the chanc-
es that its preferences will be implemented. Political scientists David Epstein and
Sharyn O’Halloran found that divided government leads Congress to delegate less
discretion to the bureaucracy, with lower degrees of discretion measured by high-
er levels of formal structural constraints on administrative action, such as time
limits for taking actions, reporting and consultation requirements, and limits
on the amount of money that can be allocated to an activity.22 Political scientist
David Lewis finds that when creating new agencies under divided government,
Congress is more likely to structurally insulate the agency from presidential influ-
ence through mechanisms such as imposing qualifications on who the president
can appoint, fixing the duration of their service, and placing agencies at a greater
remove from presidential control (for instance, outside the cabinet).23 Together,
this literature demonstrates that divergence of legislative and executive prefer-

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Dædalus, the Journal of the American Academy of Arts & SciencesLegislative Capacity & Administrative Power Under Divided Polarization

ences–a hallmark of divided polarization–is associated with delegations to bu-
reaucracy that are characterized by increasing levels of constraint placed on the exer-
cise of administrative power.

A related and recently growing literature focuses on how Congress can con-
strain bureaucracy by fragmenting implementation.24 The literature has identi-
fied at least three dimensions of fragmentation. First, more fragmented policy
implementation designs rely upon a larger number of distinct actors and entities to
carry the law into effect, such as boards, commissions, secretaries, separate ad-
ministrative officers, judges, and litigants. Second, power can be fragmented by
dividing it over multiple distinctive sources of institutional authority, each of which
has a significant measure of autonomy and independence, such as by distribut-
ing implementation power across separate administrative agencies. Third, power
can be fragmented by empowering multiple actors and/or agencies to perform the
same functions with respect to the same statutory provisions, creating overlapping juris-
dictions.25 Drawing these threads together, a design is highly fragmented if it re-
lies upon many actors and numerous agencies, and contains frequent episodes of
overlapping jurisdiction.

Under divided polarization, fragmentation of an implementation framework
can serve the legislative goal of constraining executive influence on implement-
ers to subvert the preferences of the enacting coalition. This is, in part, because
increasing the number of actors and agencies that must be coordinated to accom-
plish decisive action can, on balance, make significant departures from the pol-
icy status quo more difficult. It creates coordination challenges and a system of
checks and balances that will limit presidential influence on implementation of
the policy in question.26

Political scientist Miranda Yaver and I tested this theory with the significant
regulatory legislation data discussed in the last section. In his classic work on
American bureaucracy, James Q. Wilson characterizes American policy imple-
mentation as a “barroom brawl” with “many participants” and “no referee.”27
Yaver and I developed a measure of fragmentation in policy implementation to
measure the extent of that brawl. The measure is a composite index based upon
the number of 1) each discrete named actor/entity in each law that was empow-
ered to execute the core regulatory functions; 2) different federal agencies del-
egated some authority to implement a core regulatory function in the law; and
3) instances that multiple administrative or judicial actors were simultaneous-
ly given the authority to perform the same regulatory implementation function
in order to implement the same provisions of a law. Figure 4 shows the estimat-
ed values of our fragmentation index, measured in each law, over time. Over the
long run, fragmentation grew steeply alongside polarization. We found in empiri-
cal models with controls that divided party government is clearly associated with
fragmentation in policy implementation.28

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150 (3) Summer 2021Sean Farhang

Legislative Capacity & Administrative Power Under Divided Polarization

Figure 4
Polarization (Dotted Line) Plotted against Fragmentation
in Administrative Implementation Design

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Source: Sean Farhang and Miranda Yaver, “Divided Government and the Fragmentation of
American Law,” American Journal of Political Science 60 (2) (2016): 401–417.

In the era of divided polarization, as Congress has produced an increasing vol-
ume of regulatory law and assigned it to agencies for implementation, the cor-
responding administrative power to carry the law into effect has been more en-
cumbered by constraints on bureaucratic power and has been increasingly frag-
mented. Bureaucracy scholars disagree about the actual policy effects of these
developments.29 The net policy effects of extensive constraints on and fragmenta-
tion of administrative power are diffi cult to assess (probably intractably so), and I
do not engage that question here.

Whatever the policy effects, this empirical work on constraints and fragmen-
tation in the era of divided polarization is in tension with the notion that con-
gressional incapacitation by polarization has freed administrative power from the
reins of legislative infl uence. Constraints and fragmentation are legislative means

Dædalus, the Journal of the American Academy of Arts & Sciences

to control administrative power. They increase under conditions of legislative-
executive conflict, a key feature of the era of divided polarization. Fragmentation
is a strategy of legislative control of bureaucracy that grew at the same time that
the number of enacted significant statutes declined. Like measures of the volume
of regulatory substance discussed above, the temporal patterns of constraints and
fragmentation underscore how grasping legislative influence on bureaucracy (or
its absence) in our era of divided polarization can be furthered by evaluating the
content of legislation as well as the number of statutes passed.

I n our era of divided polarization, when the congressional majority faces an

ideologically distant president, it also increases incentives for Congress to
leverage private lawsuits to enforce its regulatory commands in court. Con-
gress can do so by including express private rights of action in statutes and by in-
centivizing suits with statutory provision for attorney fee awards and economic
damages for winning plaintiffs. When Congress distrusts bureaucracy because of
a distant president’s influence, this correspondingly makes alternative or supple-
mentary means of implementing statutory mandates more attractive. Private law-
suits are the chief alterative or supplement to bureaucracy for enforcing statutory
mandates. Presidents have far less influence on private litigants and institution-
ally independent federal courts than on the bureaucracy. Private enforcement is
thus a form of insurance against the president’s failure to use the bureaucracy to
carry out Congress’s will.30

Since the late 1960s, in the era of divided polarization, private enforcement
has become an increasingly significant facet of the American regulatory state,
and Congress has increasingly taken recourse to this form of insurance.31 Turn-
ing again to the significant regulatory legislation data, Figure 5 reflects the esti-
mated number of regulatory commands governed by a private right of action over
time.32 Over the long run, it grew steeply alongside polarization. By the last three
Congresses available in the data (2003–2008), 30 percent of the commands were
governed by a private right of action. As with enactment of constraints and the
fragmentation of implementation, divided government and Congress’s ideolog-
ical distance from the president were powerfully associated with increasing con-
gressional reliance on private enforcement.33

I referred to private lawsuits as an alternative or supplement to bureaucracy.
As a descriptive empirical matter, Congress has overwhelmingly deployed private
enforcement as a supplement (rather than as an alternative) to administrative
power. When Congress has used a private right of action to enforce some regula-
tory commands, 87 percent of the time it simultaneously included administrative
rulemaking, administrative adjudication, and/or administrative sanctions to im-
plement the same commands.34 Growing legislative provision for private lawsuits
in federal policy implementation does not correspond to a diminution in formally

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Legislative Capacity & Administrative Power Under Divided Polarization

Figure 5
Polarization (Dotted Line) Plotted against Private Rights of Action

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Source: Sean Farhang, “Legislating for Litigation: Delegation, Public Policy, and Democracy,”
California Law Review 106 (2018): 1529–1614.

delegated administrative power, but rather changes the context and environment
in which that power is wielded. When one focuses on legislative agendas rather
than passed legislation, the last decade presents an interesting shift in partisan
taste for private lawsuits to implement legislation. It has long been conventional
wisdom in American politics and law that Democrats are far more likely than Re-
publicans to favor access to courts to enforce individual rights with lawsuits. In
collaborative work, legal scholar Stephen Burbank and I show that this conven-
tional wisdom, long true, no longer refl ects party agendas in Congress. We report
the results of an empirical examination of bills containing private rights of action
with pro-plaintiff fee-shifting provisions that were introduced in Congress from
1989 through 2018. The last eight years of our data document escalating Republi-
can Party support for proposals to create individual rights enforceable by private
lawsuits, mobilized with attorney’s fee awards. By 2015–2018, there was rough

Dædalus, the Journal of the American Academy of Arts & Sciences

parity in levels of support for such bills by Democratic and Republican members
of Congress.35

This transformation was driven substantially by growing Republican support
for private enforcement in bills that were anti-abortion, -immigrant, and -taxes,
and pro-gun and -religion. We demonstrate that this surge in Republican sup-
port for private lawsuits to implement rights was led by the increasingly conser-
vative wing of the Republican Party, fueled in part by an apparent belief during
the Obama years that the president could not be relied upon to implement their
anti- abortion, -immigrant, and -taxes, and pro-gun and -religion agendas. We
conclude that the contemporary Republican Party’s position on civil lawsuits has
become bifurcated, reflecting the distinctive preferences of core elements of their
coalition. They are the party far more likely to oppose private enforcement when
deployed to enforce business regulation, while embracing it when deployed in the
service of rights for their social conservative base.36

T he relationship between agency powers and private enforcement is com-

plex. As noted, in the significant regulatory legislation data, 87 percent
of the time that Congress deploys a private right of action with respect
to some commands, they are also governed by at least one of the fundamental
forms of administrative power: rulemaking, adjudication, or sanctioning author-
ity. When the private suits are adequately incentivized, the volume of litigation in
some policy domains can become a dominant part of the policy landscape, dwarf-
ing agency enforcement activity by comparison. In the past decade, there were
about 1.7 million lawsuits in federal courts filed by private parties to enforce feder-
al statutes, spanning areas such as antitrust, banking, voting rights, employment
discrimination, police brutality, labor, environmental, consumer protection, in-
tellectual property, and securities regulation, among many others.37

The effect of private suits on agency power in hybrid regimes is contextual and
depends on the agency’s preferences and agenda. It is useful to distinguish be-
tween administrative power to create or elaborate legal rules and power to enforce
legal rules. Under private enforcement regimes, agencies share enforcement pow-
ers with private plaintiffs and their attorneys. From the standpoint of an agency
seeking to control or limit enforcement (for example, under more deregulatory
leadership), private enforcement can diminish agency power. Agency actions to
withdraw or diminish enforcement pressure will be less consequential, or even in-
consequential, if private enforcement readily picks up any slack left in the wake of
agency inaction.38 This weakens the hand of deregulatory or antiregulatory presi-
dents or agency leadership. On the other hand, private enforcement may advance
an agency agenda of robust enforcement when the agency lacks the resources or
political capacity to execute it directly.39 Thus, on the enforcement dimension,
private enforcement’s influence on agency power is asymmetric. It is more likely

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150 (3) Summer 2021Sean Farhang

to weaken agencies with a deregulatory and antiregulatory stance and to strength-
en those with a more activist regulatory stance.

Shifting the focus from rule enforcement to rule creation and elaboration, the
increasing role of private lawsuits intermingled with administrative power in the
era of divided polarization leads bureaucracy to share more of the lawmaking field
with courts. Even in the absence of private rights of action, courts will participate
in elaborating statutory meaning under judicial review of agency actions. How-
ever, private enforcement regimes make litigation and courts part of the front-
line implementation infrastructure, and often make courts interpreters of first in-
stance as opposed to reviewers of agency interpretations. This can exponentially
multiply courts’ role in elaborating statutory meaning. Each of the 1.7 million pri-
vate lawsuits filed in the past decade to enforce federal statutes was an opportuni-
ty for federal courts to interpret the federal statutes in question.

Recent research has identified an additional implication of growing private
enforcement for administrative power. Legislative coalitions, which include pol-
icy experts and sophisticated interest groups, recognize potential problems asso-
ciated with tilting the balance of power toward greater statutory elaboration by
courts. One is that federal judges have far less policy expertise than agencies. An-
other is that, post-enactment, life-tenured and institutionally independent feder-
al judges are far harder for Congress to influence than bureaucrats. That is, post-
enactment oversight, short of passing new legislation, is far more difficult with
respect to courts. As a result, there are strong theoretical grounds to expect that
when Congress relies upon private enforcement, it will resolve more regulatory
policy substance in Congress and delegate less lawmaking power to implement-
ers.40 In an empirical analysis of the significant regulatory legislation data, I find
this to be the case. With extensive control variables in the models, I find that when
relying on private enforcement, Congress devotes much more attention and effort
to developing policy substance in hearings on the bill and specifies substantive
regulatory policy in substantially more detail.41

Increasing legislative reliance on private enforcement as a strategy to effec-
tuate congressional commands in the era of divided polarization and the corre-
sponding elevation of Congress’s role in making substantive regulatory policy are
in tension with the notion that congressional incapacitation by polarization has
freed administrative power from the reigns of legislative influence. The rise of pri-
vate enforcement under divided polarization was a strategic legislative choice to
supplement or (sometimes) evade administrative power. By determining policy
substance in more detail in statutes with private enforcement regimes, a large ma-
jority of which included administrative implementation powers as well, Congress
left administrators less power to go their own way. Further, this regulatory strat-
egy grew at the same time that the number of enacted significant regulatory stat-
utes declined. Like measures of the volume of regulatory substance in statutes and

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temporal patterns of constraints upon and fragmentation of administrative pow-
er, these results highlight that the study of legislative influence on bureaucracy (or
its absence) can be advanced by evaluating the content as well as the number of
statutes passed.

A repeated claim in the literature on polarization is that legislative paralysis

so damages congressional oversight of the administrative state as to seri-
ously threaten its constitutional legitimacy and democratic accountabili-
ty. This contention rests, in part, on empirical findings about a negative relation-
ship between party polarization and congressional productivity, generally based
on longitudinal empirical studies of the number of laws passed by postwar Con-
gresses or the number of issues on the legislative agenda addressed by such laws.
This work is persuasive and important, but it paints an incomplete picture. By fo-
cusing on the content of the laws passed, this essay shows that in the era of divided
polarization, Congress has actually enacted an ever-growing volume of significant
regulatory policy–packaged into fewer laws–increasingly employed implemen-
tation designs intended to limit bureaucratic and presidential subversion of legis-
lative preferences, and legislated regulatory policy substance in greater detail when
relying on litigation and courts as a supplement or alternative to bureaucracy.

about the author

Sean Farhang is the Elizabeth Josselyn Boalt Professor of Law and Professor of Po-
litical Science and Public Policy at the University of California, Berkeley. He is the
author of The Litigation State: Public Regulation and Private Lawsuits in the U.S. (2010) and
Rights and Retrenchment: The Counterrevolution against Federal Litigation (2017).

endnotes

1 The scope of the literature is reflected in Paul Pierson and Eric Schickler, “Madison’s
Constitution Under Stress: A Developmental Analysis of Political Polarization,” Annual
Review of Political Science 23 (1) (2020): 37–58; Nolan McCarty, Polarization: What Everyone
Needs to Know (Oxford: Oxford University Press, 2019); John Sides and Daniel Hopkins,
eds., Political Polarization in American Politics (New York: Bloomsbury Publishing, 2015);
Frances Lee, “How Party Polarization Affects Governance,” Annual Review of Political Sci-
ence 18 (1) (2015): 261–282; Nathaniel Persily, ed., Solutions to Political Polarization in Amer-
ica (Cambridge: Cambridge University Press, 2015); and Geoffrey Layman, Thomas
Carsey, and Juliana Menasce Horowitz, “Party Polarization in American Politics: Char-
acteristics, Causes, and Consequences,” Annual Review of Political Science 9 (1) (2006):
83–110.

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150 (3) Summer 2021Sean Farhang

2 Lee, “How Party Polarization Affects Governance,” 263.

3 Cynthia Farina, “Congressional Polarization: Terminal Constitutional Dysfuction?” Co-
lumbia Law Review 115 (7) (2015): 1689–1738, 1690–1701; Sarah Binder, Stalemate: Causes
and Consequences of Legislative Gridlock (Washington, D.C.: Brookings Institution Press,
2004); Nolan McCarty, “The Policy Effects of Political Polarization,” in The Transforma-
tion of American Politics: Activist Government and the Rise of Conservatism, ed. Paul Pierson and
Theda Skocpol (Princeton, N.J.: Princeton University Press, 2007): 223–255, 247–251;
and Edward Carmines and Matthew Fowler, “The Temptation of Executive Authority:
How Increased Polarization and the Decline in Legislative Capacity Have Contribut-
ed to the Expansion of Presidential Power,” Indiana Journal of Global Legal Studies 24 (2)
(2017): 369–398, 378–379.

4 McCarty, Polarization, 141; McCarty, “The Policy Effects of Political Polarization,” 136–
137; Carmines and Fowler, “The Temptation of Executive Authority,” 378–379; Lay-
man et al., “Party Polarization in American Politics,” 100–101; and William Hicks,
“Partisan Competition and the Efficiency of Lawmaking in American State Legisla-
tures, 1991–2009,” American Politics Research 43 (5) (2015): 743–770.

5 These are legislator “ideal points” on a left-right scale, first developed by Keith Poole and
Howard Rosenthal, Congress: A Political-Economic History of Roll Call Voting (Oxford: Ox-
ford University Press, 2000).

6 McCarty, Polarization, 247; Gillian Metzger, “Agencies, Polarization, and the States,” Co-
lumbia Law Review 115 (7) (2015): 1739–1787, 1744, 1748–1749; Farina, “Congressional
Polarization,” 1690–1691, 1736; David Spence, “The Effects of Partisan Polarization
on the Bureaucracy,” in Can America Govern Itself? ed. Francis Lee and Nolan McCarty
(Cambridge: Cambridge University Press, 2019): 271–300, 277–279; and Carmines and
Fowler, “The Temptation of Executive Authority,” 384–395. While embracing conven-
tional wisdom that polarization and divided government frustrate congressional over-
sight through new substantive legislation, Metzger considers other indirect legislative
levers of control, such as delays in appropriations and appointment confirmations (in
“Agencies, Polarization, and the States,” 1749–1751). In arguing that legislative grid-
lock enlarges administrative power, Spence doubts whether it also enlarges presiden-
tial power (in “The Effects of Partisan Polarization on the Bureaucracy,” 279–280).
7 Michael Barber and Nolan McCarty, “Causes and Consequences of Polarization,” in Solu-
tions to Political Polarization in America, ed. Nathaniel Persily (Cambridge: Cambridge Uni-
versity Press, 2015), 50.

8 Farina, “Congressional Polarization,” 1691–1692. See also Metzger, “Agencies, Polariza-
tion, and the States,” 1744; and Carmines and Fowler, “The Temptation of Executive
Authority.”

9 They are summarized by McCarty, Polarization, 141–142; and Spence, “The Effects of Par-

tisan Polarization on the Bureaucracy.”

10 David Mayhew, Divided We Govern: Party Control, Lawmaking, and Investigations, 1946–2002
(New Haven, Conn.: Yale University Press, 1991); William Howell, Scott Adler, Charles
Cameron, and Charles Riemann, “Divided Government and the Legislative Productivi-
ty of Congress, 1945–1994,” Legislative Studies Quarterly 25 (2) (2000): 285–312; and Josh-
ua Clinton and John Lapinski, “Measuring Legislative Accomplishment, 1877–1994,”
American Journal of Political Science 50 (1) (2006): 232–249.

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Dædalus, the Journal of the American Academy of Arts & SciencesLegislative Capacity & Administrative Power Under Divided Polarization

11 Morris P. Fiorina, Divided Government (Boston: Allyn and Bacon, 1996) and David Brady
and Craig Volden, Revolving Gridlock: Politics and Policy from Jimmy Carter to George W. Bush
(Boulder, Colo.: Westview Press, 2006) reach similar conclusions as Mayhew. Howell
et al., “Divided Government and the Legislative Productivity of Congress,” find that
Congress is not less productive under divided government when all “important” law
is considered, but it enacts fewer “landmark” laws. In Stalemate, Binder measures pro-
ductivity as the fraction of salient issues on the legislative agenda that are resolved by
legislation, where legislative agenda items are identified by unsigned editorials in The
New York Times (whose editorial coverage is a denominator). She finds this measure to
be negatively associated with divided government. However, as others have suggest-
ed, New York Times editorial content may be endogenous to legislative characteristics
(like divided government and party polarization), limiting our ability to make clear
inferences from it regarding legislative productivity. Fang-Yi Chiou and Lawrence S.
Rothenberg, “Comparing Legislators and Legislatures: The Dynamics of Legislative
Gridlock Reconsidered,” Political Analysis 16 (2) (2007): 197–212; Clinton and Lapinski,
“Measuring Legislative Accomplishment,” 245; and Pierson and Schickler, “Madison’s
Constitution Under Stress” (discussing the relationship between media reporting and
polarization).

12 McCarty, Polarization, 140.
13 Binder, Stalemate; and Sarah Binder, “The Dysfunctional Congress,” Annual Review of Po-
litical Science 18 (1) (2015): 85–101. See note 11 above for further discussion of Binder’s
measure of legislative productivity and its potential limits.

14 This captured 217 of the 366 laws identified as significant by Mayhew during this period.
The data are described in more detail in Sean Farhang and Miranda Yaver, “Divided
Government and the Fragmentation of American Law,” American Journal of Political Sci-
ence 60 (2) (2016): 401–417; and Sean Farhang, “Legislating for Litigation: Delegation,
Public Policy, and Democracy,” California Law Review 106 (2018): 1529–1614.

15 The coding of this variable is described in further detail in Farhang, “Legislating for Liti-

gation,” 1584, 1605.

16 Word counts are the most common strategy for measuring statutory specificity. See
Robert D. Cooter and Tom Ginsburg, “Comparative Judicial Discretion: An Empir-
ical Test of Economic Models,” International Review of Law and Economics 16 (3) (1996):
295–313; John Huber and Charles Shipan, Deliberate Discretion? The Institutional Founda-
tions of Bureaucratic Autonomy (Cambridge: Cambridge University Press, 2002); and Tom
Ginsburg, “Constitutional Specificity, Unwritten Understandings and Constitution-
al Agreement,” in Constitutional Topography: Values and Constitutions, ed. András Sajó and
Renáta Uitz (Den Haag, Netherlands: Eleven International Publishers, 2010).

17 Farhang, “Legislating for Litigation” 1589–1592, 1604–1605.
18 Fair Labor Standards Act Amendments of 1949, 63 Stat. 910, 912–915 (1949).
19 Farhang, “Legislating for Litigation” 1577–1578.
20 David Lewis, Presidents and the Politics of Agency Design: Political Insulation in the United States
Government Bureaucracy, 1946–1997 (Stanford, Calif.: Stanford University Press, 2004);
John D. Huber and Charles R. Shipan, Deliberate Discretion? The Institutional Foundations of
Bureaucratic Autonomy (Cambridge: Cambridge University Press, 2002); David Epstein
and Sharyn O’Halloran, Delegating Powers: A Transaction Costs Politics Approach to Politics
Under the Separation of Powers (Cambridge: Cambridge University Press, 1999); and Terry

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Moe, “The Politics of Bureaucratic Structure,”’ in Can the Government Govern? ed. John
E. Chubb and Paul E. Peterson (Washington, D.C.: The Brookings Institution Press,
1989).

21 Huber and Shipan, Deliberate Discretion?
22 Epstein and O’Halloran, Delegating Powers.
23 Lewis, Presidents and the Politics of Agency Design.
24 Mona Vakilifathi, “Strategic Delegation? How Legislative Political Elites Respond to
Electoral Uncertainty,” Legislative Studies Quarterly (2020); Stephanie Bornstein, “Public-
Private Co-Enforcement Litigation,” Minnesota Law Review 104 (2019): 811–888; Far-
hang and Yaver, “Divided Government and the Fragmentation of American Law”; Jody
Freeman and Jim Rossi, “Agency Coordination in Shared Regulatory Space,” Harvard
Law Review 125 (5) (2012): 1131–1211; and Jacob Gersen, “Overlapping and Underlap-
ping Jurisdiction in Administrative Law,” The Supreme Court Review 1 (2006): 201–247.

25 Ibid.
26 Farhang and Yaver, “Divided Government and the Fragmentation of American Law”;
Freeman and Rossi, “Agency Coordination in Shared Regulatory Space”; and Gersen,
“Overlapping and Underlapping Jurisdiction in Administrative Law.”

27 James Q. Wilson, Bureaucracy: What Government Agencies Do and Why They Do It (New York:

Basic Books, 1989), 297–301.

28 Farhang and Yaver, “Divided Government and the Fragmentation of American Law.”
29 Some of the policy debate is summarized in ibid., 402–403.
30 Farhang, The Litigation State; Thomas Burke, Lawyers, Lawsuits, and Legal Rights: The Battle
over Litigation in American Society (Berkeley: University of California Press, 2002); Rob-
ert A. Kagan, Adversarial Legalism: The American Way of Law (Cambridge, Mass.: Harvard
University Press, 2019); and R. Shep Melnick, Between the Lines: Interpreting Welfare Rights
(Washington, D.C.: Brookings Institution Press, 1994).

31 Farhang, The Litigation State.
32 Farhang, “Legislating for Litigation,” 1564.
33 Sean Farhang, “Public Regulation and Private Lawsuits in the American Separation of
Powers System,” American Journal of Political Science 52 (4) (2008): 821–839; Sean Far-
hang, “Legislative-Executive Conflict and Private Statutory Litigation in the United
States: Evidence from Labor, Civil Rights, and Environmental Law,” Law and Social In-
quiry 37 (3) (2012) 657–685; and Stephen B. Burbank and Sean Farhang, “A New (Repub-
lican) Litigation State?” UC Irvine Law Review 111 (2021): 657–691.

34 Farhang, “Legislating for Litigation,” 1564.
35 Burbank and Farhang, “A New (Republican) Litigation State?”
36 Ibid.
37 Judicial Business of the United States Courts, “Table C-2, U.S. District Courts–Civil Cas-
es Commenced, by Basis of Jurisdiction and Nature of Suit, During the 12-Month Peri-
ods Ending September 30, 2009 and 2010,” https://www.uscourts.gov/sites/default/
files/statistics_import_dir/C02Sep10.pdf.

38 Farhang, The Litigation State; and David Freeman Engstrom, “Agencies as Litigation Gate-

keepers,” Yale Law Journal 123 (3) (2013): 616.

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39 Karen Tani, States of Dependency: Welfare, Rights, and American Governance, 1935–1972 (Cam-
bridge: Cambridge University Press, 2016); and Engstrom, “Agencies as Litigation
Gatekeepers.”

40 Farhang, “Legislating for Litigation,” 1549–1572.
41 Ibid., 1572–1600, 1606–1609. This empirical model uses the specificity measure de-
scribed on page 54 of this essay. The article also finds that when relying on private
enforcement, Congress is more likely to enact specific and mandatory rulemaking delega-
tions, thereby leveraging more expertise and tilting elaboration of law toward an insti-
tution (bureaucracy) over which Congress has more control than it does over Article III
judges.

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e
d
a
r
t
i
c
e
–
p
d