Legislation
Class Notes
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
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.