Jacob E. Gersen and Eric A. Posner (University of Chicago Law School and University of Chicago Law School) have posted Timing Rules and Legal Institutions (Harvard Law Review, Forthcoming) on SSRN. Here is the abstract:
Constitutional and legislative restrictions on the timing of legislation and regulation are ubiquitous but these “timing rules” have received little attention in the legal literature. Yet the timing of a law can be just as important as its content. The timing of a law determines whether its benefits are created sooner or later, and how the costs and benefits are spread across time, and hence to the advantage and disadvantage of different private groups, citizens, and elected officials. We argue that timing rules are, and should be, used to reduce agency problems within the legislature and between the legislature and the public, and to mitigate deliberative pathologies.
And a bit from the text:
One possible role of delay rules is that of reducing the advantages of interest groups in the legislative process. Suppose that when problems reach the attention of elites and the public generally, it takes some time for affected groups to mobilize resources to influence Congress. Suppose further that organized interest groups mobilize resources more quickly than ordinary citizens, because organized interests maintain institutions and staffs that monitor events and react quickly.80 Interest groups will lobby Congress to act quickly before the general public can be mobilized in ad hoc style by political entrepreneurs. Once Congress legislates, the public will face a high barrier for obtaining its desired reform. If all this is true, then rules that require delay between when a problem is identified and when legislation may be enacted will weaken the relative power of interest groups, and thus increase the probability that publicly spirited legislation will be enacted.81 The rule affects the content of the legislation by affecting the timing of the legislation, and it does so in a desirable way if the influence of the general public naturally lags that of interest groups.82
This point can be extended and made more general. Suppose, a delay rule failed to alter the eventual influence of interest groups over the content of a specific piece of legislation. Delay nonetheless may raise the probability of public awareness that such legislation has been enacted. If the public sanctions legislators for enacting private interest legislation, legislative responsiveness to private interest groups should lessen in the long term. The electoral sanction is crude because judgments about legislative performance on many dimensions must be aggregated into a single yes-no vote. Still, the threat of electoral sanctions seems to have some effect on legislative behavior. This longterm effect is more likely when delay rules are accompanied by transparency rules, as they often are within the legislature. Three reading rules might be understood in this way, both slowing the legislative process and raising the costs of secret legislative action. This effect is prominent when delay rules are paired with sub-majority triggers. For example, Senate Rule XIV.2 requires that the three readings of a proposed bill be on different calendar days, generating delay with an extremely low trigger threshold (a single legislator).
Highly recommended.