[L]egislation has been getting increasingly complex for a long time, and it seems to be a bipartisan failing. In fact, one of my political science professors, Morris Fiorina, wrote a book a few decades ago theorizing that there was a cycle that went like this:
- Congress passes complex legislation.
- Constituents get confused and irate.
- Constituents call their local congress critter.
- Congressional staff gets on the horn with offending agency and clears up the problem.
- Grateful constituents reelect congressman.
- Repeat as necessary.
In other words, whether consciously or not, congressmen like complex legislation because it gives them a chance to help out their constituents. This book was written 30 years ago, and I don't know if Fiorina himself still supports this theory, but I've always thought it was pretty clever.I keep fairly close track of the public choice literature and my sense is that this is still a widely accepted exlanation for statutory complexity. (Poliblogger Steven Taylor apparently agrees, as does Outside the Beltway.) Yet, it is not the only explanation.
Statutory complexity has at least two additional sources besides those Kevin et al. identified. One follows from transaction costs. Any longrange planner faces the problem of uncertainty. As the time horizon with which onedeals extends towards the indefinite future and the number of variables one must accounts for increases, one must anticipate an ever-growing number of contingencies. Attempting to deal with multiple contingencies ex ante necessarily results in complexity. You need a lot of detail to deal with all sorts of "if this happens, then do that" commands. Congress could (and often does) deal with complexity by leaving the problem of future contingencies to the courts and regulatory agencies to be addressed ex post. Yet, Congress may not wish to give up control to those other bodies. A Congress controlled by Democrats, for example, may not want to give regulatory gap-filling powers to a Republican administration. Hence, you're going to get many cases in which Congress will try to fill as many gaps as possible in the regulatory scheme ex ante, which leads to complexity.
A second source of complexity arises where there are multiple interest groups involved in the legislative process. One way of looking at legislation is to think of Congress as a referee between competing interest groups. In the legislative process, the interest groups eventually strike a bargain. Congress then ratifies that bargain and gives it teeth by passing a statute. Sometimes striking a bargain among multiple interest groups, especially in an area where there are many variables for which to account, requires a highly complex contract.
Bottom line? Sometimes complexity in statutes exists solely for the sake of complexity. But sometimes it has a real - and arguably even legitmate – purpose.