The Executive, Congress, and Interest Groups in U.S. Export Control Policy: The National Organization of Power

William J. Long

Introduction

This chapter explores the making and implementation of U.S. export control law and policy in the postwar period. The central proposition underlying this study is that the Executive and the relevant bureaucratic agencies (particularly the Departments of Commerce, Defense, and State) influence and shape export control law and policy and are relatively more autonomous and important political actors vis-à-vis Congress and domestic interest groups than is appreciated by theories on the role of the American Executive and executive agencies in U.S. trade policy.

Moreover, Executive dominance persisted beyond the immediate cold war period when, arguably, the perception of a national security crisis and the relative unimportance of international trade to the American economy would suggest the possibility of congressional and interest group deference to the Executive. Since 1969, although the perceived threat to national security has receded, Congress has become more assertive in foreign policy, the presidency has been weakened by Vietnam and Watergate, and the business community's interest in export markets has vastly increased, the Executive still dominates export control policy. Furthermore, during the post-1969 period the Executive has extended the original East-West national security thrust of export control policy to serve a variety of other foreign policy objectives, including human rights, anti-terrorism, and nuclear nonproliferation.

This chapter will examine U.S. export controls historically to discern a pattern of executive department dominance, to assess the capacity and instrumentalities of the Executive in defining and implementing policy, and to provide some insight into the content, impacts of, and motivations for the Executive's activities.

Theories of the Role of the Executive in U.S. Trade Policy

Liberalism and its leading modern variant, pluralism, have heavily influenced theoretical approaches to U.S. trade policy. Pluralism, which views the political process as dominated by interest group activities and suggests that the representative and leadership functions of democracy are the result of bargaining and competition among numerous voluntary, randomly arranged interest groups, tends to slight the role of the central state actors.

For example, in a recent work Gary Bertsch argues that, despite the high degree of centralization of authority within the Executive, the politics of East-West trade and technology transfer (roughly synonymous with the politics of export controls) are best understood through an appreciation of the "structural pluralism" of the American political system. Bertsch aptly summarizes the reasons he believes pluralism should account for U.S. export control policy, especially in the past two decades:

There are a number of reasons for this development ... includ[ing] the weakening of presidential power in the post-Vietnam and Watergate eras; the increasing assertiveness of a Congress disposed to recapture its constitutional role in American foreign policy; ... the increasing importance and power of U.S. commercial, and particularly agricultural, interests in a period of declining export performance, and U.S. reactions to Soviet foreign policy intrigues.

As a consequence of these forces, Bertsch concludes, the cold war consensus on East-West trade and technology transfer has declined as the political process has become increasingly pluralistic, "marked by more political actors and centers of power with access to the making and implementation of U.S. foreign economic policy."

Theoretical approaches to overall U.S. trade policy are consistent with the pluralist emphasis on particular interests focused on Congress. Although often not explicitly defining trade policy as including export control policy, many studies of U.S. import policy imply that pluralism explains not only U.S. import policies, but U.S. export policies as well. Consequently, many analyses of the role of the Executive in U.S. trade policy ignore or underestimate the Executive's importance and its strength and insularity from domestic interests.

Theories on general U.S. foreign policy, while accounting for Executive dominance during the early cold war period, do not adequately explain the continuation of Executive dominance of export control policy in the post-1969 period. Scholars have described the President as the primary force in foreign affairs in the second half of the twentieth century. Furthermore, the president's ascent to prominence in foreign affairs was thought to relegate Congress to a secondary role. Congress's influence in foreign policy was viewed primarily as legitimating and amending policies initiated by the Executive.

More recent discussions of U.S. foreign policy indicate that the depiction of extensive executive dominance is more accurate with respect to the 1945–65 period than it is to subsequent decades. By the mid-1970s Congress had reasserted itself in U.S. foreign policy making by repealing the Gulf of Tonkin "Resolution," overriding President Nixon's veto of the War Powers Act, terminating the president's authority to provide emergency military aid to South Vietnam, prohibiting continued CIA expenditures in support of anti-communist forces in Angola, and establishing a permanent intelligence oversight committee. In short, the anti-communist values that forged a bipartisan consensus on U.S. foreign policy in the 1950s and 1960s had eroded by the 1970s.

Thus, within the general foreign policy literature, my study seeks to explain why the Executive continues to dominate export control policy despite the growing importance of exports to domestic business interests, a far less accommodating Congress in matters of foreign policy, and the passing of cold war norms.

The Executive and U.S. Export Control Policy

This chapter will demonstrate that the above theories fail to capture fully the autonomy and importance of the Executive and its institutions and to explain their motivations and methods in shaping U.S. export control policy during the past forty years. This chapter maintains that the Executive has operated as an important and relatively autonomous political actor in U.S. post–World War II export control policy. The origins of the Executive's abilities stemmed from instrumentalities and capabilities fashioned to cope with wartime emergencies which continued in peacetime because of the international and domestic orientation of the United States.

The content of the Executive's policies is unique as well. Periodically since 1969 the Executive, to a greater degree than Congress or interest groups, has articulated and pursued export control policies that emphasize national security, foreign policy, and ideological goals (apart from wealth maximization through free trade) in opposition to the congressional majority and interest group emphasis on export expansion. The Executive has also fought to maintain its procedural flexibility and its prerogative to use export controls as it sees fit and has, over the years, developed a variety of policy instruments with which to exercise its authority. Once a degree of executive autonomy has been established, irrespective of the particular policy goal pursued, the Executive has often supported policies that reinforce its authority, flexibility, and control over society.

The second underlying theme of this chapter suggests that U.S. export control policy has also been shaped significantly by bureaucratic institutions. Institutions, it is argued, are "neither neutral reflections of exogenous environmental forces nor neutral arenas for the performances of individuals driven by exogenous preferences and expectation." Emphasizing the Executive's role in U.S. export control policy further permits an assertion that policy outcomes are, in part, the result of institutional dynamics occurring within the Executive.

A corollary to this hypothesis is the assertion that, because policy is implemented through an active bureaucracy, Congress's enunciation or revision of a policy does not necessarily and automatically lead to a corresponding change in policy outcome. Unlike the clash of presidential and congressional interests that has provided focal points for assessing executive autonomy and capacity, institutional effects on policy are gradual, continuous, and rarely overtly political. Nonetheless, export control institutions shape policy by pursuing self-defined, discernible mandates. As a result, institutional practices can produce results different from those designed by Congress or hoped for by domestic interests.

The necessary second step in explaining the bureaucracy's role in contributing to the discontinuity between policy articulation and outcome involves defining how the bureaucracy shapes export control policy. A case study of U.S. export control policy implementation affords an opportunity to test several more specific hypotheses on institutional motivations and operations. In this regard this chapter suggests that the bureaucracy is motivated by a desire to fulfill established duties, obligations, and symbolic goals more than by a rational, instrumental pursuit of exogenously, i.e., congressionally, chosen goals embodied in export control legislation, or a representative pursuit of interest group demands. Despite societal changes established career officials, because they are insulated from immediate societal pressures, possess a greater ability to implement established policies resulting over time in relatively continuous policies. This chapter further hypothesizes that the origin of the export control bureaucracy's motivations lies in the ideological climate, the structure of the international system, and the alignment of domestic interests prevailing at the system's inception. Specifically, it is suggested that the U.S. export control institutions derived, and in large measure continue to derive their mandate from laws which were bornand operated for two decades in a postwar period of cold war political rivalry, unparalleled American international economic hegemony, and domestic political consensus in the area of U.S. export control policy. In short, institutional history, as well as institutions, are important determinants of policy outcomes.

Because of the complexity of export control, inter- and intra-institutional processes, and the varying effects of institutional dynamics on export control policy, no single theory of institutional operation will be offered here. As examples of bureaucratic influence over policy this chapter will set forth empirical examples of institutional practices that reflect rigidities and the pursuit of endogenous institutional goals.

Method and Organization

I approach the topic chronologically, beginning with a brief discussion of the inception and development of the American export control statutory and institutional framework. Specifically, I shall consider the history of the most important piece of domestic legislation that empowers the Executive to control exports and implement export sanctions in peacetime—the Export Control Act, later the Export Administration Act,—and its bureaucracy. After a discussion of the origins of America's export control regime, I shall consider how subsequent export control laws and policies were shaped by the Executive and executive institutions, and how the Executive, after establishing a role in export control policy, became a relatively autonomous actor in the policy-making process.

Treating the Executive as a more autonomous actor requires a demonstration of two things: (1) that the Executive, although influenced by its domestic and international environment, defines and pursues interests distinct in some measure from any particular environmental interest or summation of interests; and (2) that the Executive has, to some extent, demonstrated an ability to accomplish its aims. To illustrate the Executive's autonomous interests this chapter will compare and contrast the positions adopted by the Executive and executive institutions and those assumed by the congressional majority and domestic interest groups during the passage of export control legislation. I shall then consider actual policy outcomes in the issue areas that were central points of contention during the lawmaking process and assess the Executive's ability or inability to prevail in the areas where it has articulated an interest at odds with the congressional majority and domestic interest groups.

The Origin of U.S. Export Controls

Before considering the divergences between the Executive and Congress and interest groups in the 1970s and 1980s, it is necessary to consider briefly the configuration of executive-congressional relations, the perceived challenges, and the ideological currents prevailing at the origin of the U.S. export control regime. It is suggested here that Executive capacity in export control policy making in the 1970s and 1980s, as well as the content of the Executive's policies and institutional procedures, can be traced in large measure to the forces and interests of this earlier period.

An examination of the origins of American export control institutions requires an investigation of the domestic and international environment that fostered them. In this respect the laws and agencies are treated originally as an endogenous variable. The creation of America's export control system can be explained in the following ways: as a product of existing ideological (anticommunist) forces, as a natural expression of the United States's hegemonic position within the structure of the post–World War II international political and economic system, and as a foreseeable outcome of bureaucratic and interest group relations.

Taken together, these explanations satisfactorily account for the origin of America's export control system. These approaches, however, while necessary, are not sufficient explanations for the subsequent operation and effects of this system. Once established, the legal and bureaucratic apparatus of the Executive influences policy making and policy outcomes as an important political actor.

At their origin, immediately after World War II, peacetime export control laws authorized the president to prohibit or curtail all commercial exports of any article, materials, or supplies (including technical data), except under such rules and regulations as he might prescribe for reasons of national security, foreign policy, or domestic short supply. Operating under this broad delegation of authority, the Executive established a relatively autonomous institution within the Department of Commerce—the Office of Export Control (OEC)—to issue export control regulations, grant or deny applications for export licenses, and investigate violations of the regulations of the Export Control Act itself. The Commerce Department, under statutory direction, acted with information and advice of several other executive departments and agencies.

Institutionally, the OEC continued in peacetime as an embargo policy of economic warfare against communist states. To implement this policy the OEC established procedures that would endure and profoundly affect future policy.

Foremost in this regard is the system of reviewing export license applications one at a time. Rather than identifying a priori the potential strategies of countries posing a threat to U.S. national security and foreign policy interests, and deducing which goods or technologies have a high utility in the service of those strategies, the OEC examined applications on a case-by-case basis, identifying which goods or technologies were intrinsically more strategic than others and determining if their export to a given destination should be permitted.

In addition to establishing a system based on incremental decision making and precedent, the control system handled difficult licensing and control list decisions through multi-agency reviews and clearances operating on the basis of unanimity. Despite the lengthy processing time resulting from this multi-agency and multi-layered decision-making apparatus, the Export Control Act did not establish any deadline for the processing of licenses. Further, the Export Control Act exempted the bureaucracy from judicial review for arbitrary and capricious actions.