Friday, July 13, 2012

The Courts' Essential Role in Protecting the Political Process

-- Posted by Neil H. Buchanan

In yesterday's post, I went on at some length about the hyperventilated cries about the supposed threat to freedom and liberty that have been heard in response to Mayor Bloomberg's proposed size limitations on soda drinks. I argued that the proposal is simply an imperfect, but useful, policy idea that does not differ in kind from any run-of-the-mill policies that any government entity might enact. The proposed policy is, in short, nothing like the caricature of government excess that the soda companies and talk-show hosts have tried to draw.

There are at least three potentially legitimate arguments that one can raise in response to a proposal like the mayor's soda size restrictions. I will summarize them here, and I will then explain how those arguments all amount to reminders that we need to have a healthy and robust policy debate, as well as a truly democratic lawmaking process. This is why the energy being wasted attacking the mythical overreach of Mayor Bloomberg's public health initiatives (and President Obama's health care law) would be better spent improving the health of our policy-making processes.

Those three arguments are:

-- There is an insufficient connection between the proposed policy and the problem (if, indeed, there is a problem)

My understanding of the science behind Bloomberg's proposal is that the link between soda and obesity is quite strong. Even so, it is certainly true that the first step in any policymaking process must be to determine if there is really a problem that the policy might address. If obesity were not a problem, or if the link between the policy lever and obesity were nonexistent, then I would readily agree that the policy is pointless.

-- There are other policy interventions that would work better

This is almost always true. As I discussed in my Verdict column yesterday, there might be a number of better ways to address the obesity crisis, but all of them have already been tried and defeated politically. This objection is an example of what I have previously described as a central pitfall of the "lawyer's way of thinking." That is, the most common logical error that I hear from my law students and some colleagues (and that I generally did not hear when I taught in economics departments) boils down to saying, "But this won't solve the (whole) problem." (I emphasize that I think there are more seriously problematic habits of mind that are drilled into economists' heads. This particular problem, however, is common to lawyers.) To which one must reply, "Of course it won't solve the problem! How many problems can be solved with one policy response? What matters is whether the policy will make matters better, not whether it makes the problem go away entirely." Another version of this is the old chestnut: "The perfect must not be the enemy of the good."

-- If they can do that, what else can they do?

This is the generic liberty objection. In a way, it reminds me of the infamous incident during an oral argument at the Supreme Court in the 1980's. Chief Justice Burger was asking a lawyer whether the exclusionary rule would require suppressing evidence after police illegally entered a building, even if the police found a dead body. When the lawyer replied in the affirmative, the Chief thought for a minute, and then asked: "What about if they found two dead bodies?" The point is that, once we establish the principle that governments can pass regulations and taxes to affect economic behavior, it is pointless to ask whether the ability to restrict soda sizes would also empower the government to, say, ban the sale of any given fattening food. The answer, of course, is yes.

Which brings us back to the larger point. Just because our system permits the government to enact any of a broad range of laws does not mean that the government will do so. And, when any government does enact a law that the people collectively feel is inappropriate for any reason, that law can be changed.

These three principles together -- that laws should be calibrated to have a realistic chance of solving a real problem, that laws can be enacted even when they are only partial solutions to a problem or are not the best solution to the problem, and that the ability to pass laws affecting people's choices does not mean that every possible law will actually be passed -- add up to something quite simple and fundamental: When we are NOT talking about special constitutionally-protected categories of laws (such as laws affecting discrete and insular minorities), the people's greatest protection from tyranny is the people.

That is, a healthy political process allows us to pass laws after satisfying ourselves that there is a problem that has a realistic chance of being mitigated, after concluding that the proposed laws are acceptable even if incompletely effective, and without then seeing the government do everything that it might be permitted to do under that precedent.

Which relocates the real concern to where it should be: guaranteeing that the political process itself is not corrupted. This seems obvious, but the trend in the Supreme Court for the last thirty years or more has generally been to take a hands-off approach to policing the integrity of the political process. Beyond the obvious problems with permissive rulings about campaign finance, the Court has also taken the view that it need not step in to stop gerrymandering and other practices that make it possible for the political system to be captured by a non-representative group.

The Court's bizarre rationale has been that the political branches are best situated to police the political process. If "the people's representatives" have chosen to do something that changes the political rules of the game, who is the Court to say no? But this simply ignores the problem, of course. If the claim is that the political process is broken, then one cannot rely on the people's representatives to fix the problem, because the representatives are not really representing the people.

If we are worried about any level of government misusing its powers -- addressing problems that do not exist, ignoring better solutions to real problems, or going too far in passing laws to solve problems -- our efforts should be aimed toward getting the courts to ensure the integrity of the political process. Allowing the political process's obvious corruption to continue is the surest route to governments' passing -- and refusing to change -- laws that the people do not like.
That might seem obvious, as it should. But given how much time has recently been wasted on the wrong problem -- limiting Congress's power, rather than making sure that Congress uses its power to do the people's bidding -- it is a point that has apparently been lost.


Michael C. Dorf said...

I'm pretty sure I'm the source of the anecdote about CJ Burger's "two dead bodies" question. I heard this story over twenty years ago from a former Rehnquist clerk, who told me he was in the courtroom when it occurred. I repeated it for years because it's so funny. Then one day I wanted to refer to it in an academic article so I searched the oral argument transcripts and, to my chagrin, could not find it. It's possible that the exchange happened but was phrased differently enough that it eluded my searching. Or perhaps the former Rehnquist clerk mis-remembered or was just fabricating. But in any event, when I tell the story, I now add that it may not have actually happened.

Rick Hills said...

Hey Neil and Mike -- You might want to have a place in your "political process" theory for distinctions between national and subnational policymaking, favoring the latter over the former. Bloomberg's policy might be more defensible than ACA on this account simply because, as a subnational policy, it leaves room for its own verification or falsification (in the form of comparison with other jurisdictions that do not enact the policy). This is, of course, the good old "labs o' democracy" theory and one on which I'd stake my own defense of Bloomberg (see

Neil H. Buchanan said...

Hi Rick,

Good to hear from you. I really liked your PrawfsBlawg post. It reminds me that there was a time when Republicans and Democrats were actually having substantive discussions.

I agree that there are level-of-government concerns that can sometimes cut in favor of local-level decisions. (I also think, and I doubt that you'd deny, that the opposite is sometimes true.) If the political debate were actually about this -- rather than the screaming about the Nanny State that both of us deplore -- we'd all be better off.