While the above analysis provides empirical evidence for a strategic component to the timing of FCC decisions, it leaves one central question unanswered: is the timing of FCC decisions the result of strategic action by the court in choice of timing, or is it instead the result of exogenous forces that the FCC reacts to by being strategic in its choice of disposition. Put another way, there are two potential mechanisms for how a court
such as the FCC can take strategic advantage of timing its decisions. Discerning which mechanism is at work here will provide a fuller picture of strategic judicial behavior and the extent to which the timing of decisions serves as an institutional tool for courts to overcome potential noncompliance.
First, a court could proactively time its decisions by selectively delaying or expediting its decisions based on when doing so is most advantageous. In this account, the court prefers to strike down the challenged legislation and seeks to find the most opportune time to do so. Specifically, the court receives challenges of statutes it wishes to strike down and so, in order to maximize the likelihood of compliance, it can withhold those decisions until an impending election creates greater public and media attention to political events like constitutional review. This “proactive” account of judicial behavior focuses on how courts can use the complicated and time-intensive nature of decision making as an institutional tool for addressing potential noncompliance.
A second account is that a court changes the content rather than the timing of its rulings. By this account, the strategic component of the relationship between timing and decision making is the latter. This would be the case, for example, when a court has minimal discretion over the timing of its decisions. In such an instance, the court is not strategic about when it issues its decision, but instead strategically adjusts the decision to meet the political conditions. This “reactive” court account depicts judiciaries as constrained by their environment and by their inability or unwillingness to change that environment through the timing of their decisions.
Distinguishing between these two accounts empirically requires moving beyond the preceding analysis, since an implication of both accounts is that a court should be more likely to strike down legislation near an election. To do so, I focus on the implications of the two accounts for observable aspects of decisions. In particular, the empirical implications of the “proactive” and “reactive” mechanisms for judicial behavior diverge depending on the length of time between when a court receives a case and when it issues a decision as well as the characteristics of cases decided in the period preceding a national election.
Only the first account, that is the “proactive” court mechanism, generates predictions about the strategic use of delay by courts faced with potential noncompliance. In this account, courts respond to the risk of noncompliance by selecting when they will issue their decisions. If this is the case, then the political conditions of a case should correspond to the amount of time a court takes to issue its decision. Moreover, the time taken to make a decision should further relate to the conditions facing the court when it receives the case. That is, this account directs our attention to examine the influence of two factors:
the timing of litigation, specifically as it pertains to the likelihood of public attention to the case, and the potential for noncompliance attached to that case.
When the court receives a case in the electoral cycle directly influences whether and for how long the court has an incentive to delay its decision. As Figure 5.7 shows, the FCC receives cases throughout the electoral cycle. Cases the court receives early in an electoral cycle are less likely to require significant delay because the court can reasonably expect to issue its decision before the next election. This may not, however, be true for cases received later in the electoral cycle. The FCC is rarely able to reach its decisions in a short period of time, making it more difficult to time decisions in the “sweetspot” prior to an election when the court receives the case later in the electoral cycle. Moreover, a court can justify delaying its decision relatively easily by citing the complex and demanding nature of judicial decision making. By delaying these decisions, the court can effectively wait out the current electoral cycle by delaying and then issue its decision at a more opportune time in the next electoral cycle. Empirically, then, the FCC should take longer to make decisions in cases received later in an electoral cycle. Moreover, this relationship should be limited to cases where noncompliance is at issue; when this is not the case, there is no incentive for the court to strategically delay its decision in response to the political environment. My fourth hypothesis follows from this discussion.
Time to Decision Hypothesis (H4): The closer to an election the FCC receives a case, the longer the FCC takes to issue its decision in that case.
This relationship only holds in cases for which noncompliance is at issue.
Figure 5.7: Time Between Application to FCC and Last National Election
Number of Years between Application and Last National Election
Number of Cases
0 1 2 3
050100150
A second implication of the strategic timing account regards the relationship between the delay of decisions and the specific timing of those decisions. If it is the case that a court such as the FCC is delaying some decisions to maximize the likelihood of public attention, then we should observe a relationship between delayed decisions and the electoral cycle and, critically, the threat of noncompliance. This logic corresponds directly to the second empirical implication of the theoretical model presented in Chapter 2, in that we should observe a strategic court using its institutional tools, in this case the timing of decisions, when doing so is most beneficial. As such, I expect the delay of decisions to correlate with the timing of those decisions under two conditions. First, I expect such a relationship when the FCC strikes down legislation as unconstitutional. When the court upholds, noncompliance is not at issue and, as a result, there is no incentive for strategic timing.
Second, I expect this relationship when the government defends the constitutionality of the challenged statute. Similar to the court’s disposition, when the government does not defend the statute, noncompliance is not at issue and we should not observe the timing of decisions vary systematically with the length of time the court takes to issue its decision. When, however, these two conditions hold and the court strikes down the challenged legislation against the explicit preferences of the government, I expect longer delays in the issuance of the court’s decision to correlate positively with the likelihood that the decision is issued in the period immediately preceding an election. I present this expectation below as my fifth hypothesis.
Strategic Delay Hypothesis (H5): The longer the FCC takes to issue a decision, the more likely it is to issue that decision in the period immedi-ately preceding an election. This relationship only holds in cases for which noncompliance is at issue.
Note that these implications contrast directly with that of the “reactive” court account, according to which courts respond rather than affect the timing of cases. In this account, courts change their decisions based on the timing of a decision rather than, as predicted
in hypotheses 4 and 5, changing the timing of the decision to fit the court’s preferences. If this alternative “reactive” account is correct, then we should not observe evidence of the court delaying its decisions or, more generally, a correspondence between political nature of a case and the length of time the court takes to dispose of a case. In the context of the hypotheses presented here, such an account would predict a null result, making the tests below provide a way to empirically adjudicate between this account and the “proactive”
court account. To test the fourth and fifth hypotheses, I again use data on all FCC cases involving federal law in my dataset.