| Summary: | Although legislative drafting processes have escaped the attention that other features of legislative organization have received, they produce the text--and often the detailed substance--of legislation in ways that articulate some voices, not others. Comparatively, these processes vary widely in degree of organization, centralization, and hierarchy, but not along obvious lines of regime type, electoral system, or legal tradition. Some scholars attribute cross-national divergence in choice of institutions to historical institutional factors such as policy legacies or the diffusion of new institutional models. Others attribute divergence to the motivations of key political actors, but disagree about the bases for these actors' motivations (e.g. partisan, informational, or distributional concerns).
I suggest that extant theories cannot fully explain legislative drafting processes: persistence does not because drafting processes do not predictably remain in place or stable at transition. Diffusion fails because innovations do not reliably follow particular hegemons or neighboring polities. And while theories of legislative organization explain how the incentives endogenous to a particular legislature shape the evolution of processes such as drafting processes, they do not account for cross-national variation. Legislators seem to follow different types of incentives in diverse countries, and we lack a theory for why some drafters deliver particularistic benefits in the drafting process whereas others seem swayed by information resources to aim for good policy.
Drawing on cross-national analysis of sixteen post-communist states and four case studies, I argue that the structure of factional conflict during transition from communist rule produces the incentives that explain the variation in legislation drafting processes (and consequently, responsiveness of legislation produced). Here, "the structure of factional conflict" means "the identity and relative strength of competing factions as structured by features of the state and communication network." When this structure produces partisan incentives, conservative factions tend to create centralized drafting processes. When it produces informational incentives, competing factions tend to create consensus-based drafting processes. When it produces distributional incentives, factions tend to choose fragmented drafting processes. The structure of factional conflict is mediated by persistence and diffusion, but this study gives priority of explanation to the structure of factional conflict.
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