Legislation Class Notes 1/16/04


More on public choice theory


The model we had on the board yesterday, the “ABC” model, was meant to illustrate how one group of public choice theorists are critical of the deliberative process.  They believe it is incoherent.  Another group posits that the process isn’t irrational, but instead is part of a quite rational political market where votes are bought with money.  That’s a more cynical model about how legislation is bought and sold.  It’s based on the idea of the free rider.  People have the incentive to sit back and hope someone else will carry the burden of pushing through large, complex legislation.


This leads to the table at the top of p. 59.  There are four types of legislation depending on the concentration and distribution of costs and benefits.  When the costs are more concentrated, the opposition will be concentrated.  When the benefits are concentrated, the support will be concentrated.


Take for example farm subsides: a small number of agribusinesses are paid a lot of money to produce agricultural goods at an artificially high price.  Thus a small number of people care passionately while the large majority of people only see a small cost that they might not even notice.


If support and opposition are both concentrated, you’ll likely get gridlock.


The assumptions and reasoning behind this model are that legislators primarily care about reelection, that interest groups are the primary sources of information for legislators, and that interest groups participate in rent-seeking behavior (seeking benefit at the cost of others).


Are public choice theories complete?  Do they make sense?  Do politicians care about anything else besides getting reelected?  We might hope that they care about things other than getting reelected.


Why does McCullough care about civil rights if he lives in rural Ohio and is so popular that there’s no chance he’ll get booted out of office?  People who enter the legislature, whether they consider themselves career legislators or not, status and prestige are important among your peers, just like in any other job.  Why else would McCullough do what he’s doing?  Maybe he really thinks it’s the right thing to do.  Some legislators may have self-selected because they are people who have a strong interest in public policy.


So how much does public choice implausibly “flatten” the motivations of legislators?


Some say there are three different sets of motives for legislators:


1.     Self-interest – If you want to help yourself, you’ll be on “pork” committees.

2.     Insider status/prestige – If you want prestige, you might join a committee like the Senate Finance Committee or the House Rules Committee.

3.     Actual interest in public policy – If you are really interested in public policy, you might join the Senate Foreign Affairs Committee, for example.  Some people might really care about things.


What about voters?  Do they vote out of pure self-interest?  What might their interests be besides getting money into their own pockets?  Voters may well be just as complicated as legislators.


What about the nature of the process itself?  Is the process relatively static and controlled by interest groups?  Are public choice theorists right?  What about the public at large?


Some interest groups have non-economic agendas.


Kingdon takes an “organized anarchy” approach.  He thinks that policy outcomes depend on so-called “coupling of the streams”.  Things might get debated a whole lot, but then there might suddenly be a moment when you can pass a certain law when you couldn’t have before and you may not be able to later either.


Brudney thinks this may not fit the four-part model of costs and benefits.


How does the media tie in to this?  What the media chooses to report can make a big difference.


We might hope that the process is not based on naked self-interest.


Republican theory


This group believes that the deliberative process will actually improve the quality of legislation.


Who cares about this stuff outside of academia?  Judges write about statutory interpretation.  This is something that judges are willing to do because it’s methodological rather than ideological.


The basic tension in Title VII


This starts out in the 1970’s with Griggs and builds up to Weber.


What’s the disagreement?  What’s the executive branch’s position on the civil rights law?  How does that create problems with what Congress might have thought it was doing?


The EEOC wanted to see results.  The EEOC looks at groups.  Sobeloff referred to this in his dissent in the Fourth Circuit in Griggs.  The EEOC is concerned not just with intentional discrimination, but also with systemic problems.  The way to make the law work, in their view, is to pursue “group actions”.  They are concerned about “disparate effects”.


We have a statute on the books, but how is it going to be enforced?  Is it going to be enforced consistent with people’s original expectations?


Everyone who votes for legislation thinks that it’s good.


Discrimination is considered subtle and pervasive by some.


The text itself


It looks like they’re trying to build a color-blind society.  But then there’s also § 703(j).  What do we have to say about it?  This section anticipates the possibility of affirmative action.  That’s not really color-blindness.  It says that there need not be affirmative action.


So does Congress have any interest in race-conscious thinking?  Congress is aware of the possibility of some race-consciousness in employment practices.  They only say that you’re not required to do something.  They don’t say that you mustn’t do it.


The Supreme Court, before we get to Weber, is ambiguous if not ambivalent about this race-consciousness business.  The implication of Griggs is that we don’t want practices that aren’t a business matter to perpetuate discriminatory practices.


So what does “discriminate” mean?  What would a dictionary say?  It might say something like “to classify”.  “Discriminate” isn’t always a bad, loaded term.  It can mean “differentiate”.  Is “discrimination” just any classification or differentiation?  Not all differentiation is discrimination as it is contemplated in the statute.


How much did Congress think this out?  Statutes aren’t sales contracts where there are very specific terms.  Statutes are public law instruments that can last for decades and even centuries.  The social conditions that are covered by the words Congress crafted are way more complex than anything you can write down.


Next Wednesday, we’ll get fully into Weber, but first we’ll spend time on the Clark-Case memorandum.


Back to Class Notes