Monday, January 26, 2009
Back in July of 2007 Professor Lawrence Solum informed us of Adrian Vermeule's Mechanisms of Democracy: Institutional Design Writ Small (for an example of the genre that treats 'institutional design writ large,' see Russell Hardin's Liberalism, Constitutionalism, and Democracy, 1999) through the valuable service provided by his weekly Legal Theory Bookworm. At the time, Solum wrote, "Once again, Vermeule is original and illuminating. It is one of those rare books that changes the angle from which we view familiar issues." Of course anyone interested in legal theory and philosophy of law takes notice of what Solum has to say on his blog, but it's taken me some time to get around to reading Vermeule's book. And in my case, the issues dealt with were not that familiar, although I agree with the judgment that Vermeule is "original and illuminating." Any work that comes with enthusiastic recommendations (as jacket blurbs) from Cass Sunstein and Robert E. Goodin will suffice for this reader and this book does not disappoint. With Solum, we quote from the book's description:
What institutional arrangements should a well-functioning constitutional democracy have?
Most of the relevant literatures in law, political science, political theory, and economics address this question by discussing institutional design writ large. In this book, Adrian Vermeule moves beyond these debates, changing the focus to institutional design writ small.
In established constitutional polities, Vermeule argues that law can and should - and to some extent already does - provide mechanisms of democracy: a repertoire of small-scale institutional devices and innovations that can have surprisingly large effects, promoting democratic values of impartial, accountable and deliberative government. Examples include legal rules that promote impartiality by depriving officials of the information they need to act in self-interested ways; voting rules that create the right kind and amount of accountability for political officials and judges; and legislative rules that structure deliberation, in part by adjusting the conditions under which deliberation occurs transparently or instead secretly. Drawing upon a range of social science tools from economics, political science, and other disciplines, Vermeule carefully describes the mechanisms of democracy and indicates the conditions under which they can succeed.
Vermeule both describes and proposes various sorts of rules and mechanisms that advance what he terms ('thin conceptions of') four core values of democractic constitutionalism: impartiality, accountability, transparency, and deliberation. For instance, with regard to a thin conception of impartiality, "veil rules" "dampen both information and bias, including bias arising from self-interest, at the same time, however, they also suppress decisionmakers' activity or energy." A straightforward illustration involves
a rule that requires an official with regulatory authority over the stock market to place her assets in a 'blind trust.' Even if the official is self-interested, she will be uncertain whether any given decision will increase or decrease the value of her portfolio. She will thus be unable to skew her decisions in order to promote her personal interests.
A "veil rule" brings home the truth of the proposition that "more information is not always better than less," in this case, by suppressing the particular bias that may arise from self-interest. (We won't here discuss the manner in which such a rule may 'suppress a decisionmaker's activity or energy.') The general point is enshrined in the hope that
Behind the veil...the decisionmaker afflicted with uncertainty will, for lack of ex post information about whose interests to favor, choose the option or rule that promotes the good of all those affected in an ex ante sense. The dearth of information produces decisions that track the output of an impartially motivated decisionmaker.
In fact, there is considerable value in subjecting decisionmakers to an "uncertainty constraint" that relies on withholding particular kinds of information. While we can't here do justice to the quality of Vermeule's analysis or the richness of his examples, particularly illuminating is the treatment of the "nondelegation doctrine" which, although largely unenforced since 1935 according to Vermeule, "persists as a principle of statutory interpretation." Rightly and forcefully I think, he argues that "the nondelegation principle has no appeal as a matter of democratic theory; it is irrelevant to accountability, or accountability is irrelevant to it." For the "core claim of nondelegation proponents," namely,
that delegation dilutes accountability, and is therefore nondemocratic--fails on two grounds: the executive also has democratic credentials, and legislators can be held fully accountable for the decision to delegate. The first point is that executive delegates are also accountable. In parliamentary systems with an executive who is elected by the elected legislators themselves, the executive is doubly accountable, both to the parliamentary majority or coalition, and to the voters in the executive's constituency. In systems with an independently elected executive, agencies are accountable to the President, who is more or less accountable to the voters--more anyway than the courts who are supposed to enforce the nondelegation doctrine.
Vermeule reminds American critics of delegation that the Presidency too has democratic credentials, and he is adamant that "all legislative lawmaking, direct or indirect, is on the same footing; delegation is not special."
Also rather intriguing is the pellucid discussion of "submajority rules" under which a voting minority is granted the affirmative power to change the status quo. Vermeule outlines "the important procedural and epistemic virtues" of rules that are, surprisingly (to me at any rate), "found in a range of legislatures, courts, international bodies, and other democratic institutions." A submajority rule is defined as a voting rule
that authorizes (i) a predefined numerical minority within a designated voting group (ii) to change the status quo (not merely to prevent change) (iii) regardless of the distribution of other votes.
In procedural terms, such rules can be counted among those "devices that empower minorities to force public accountability and transparency on the majority." With Jon Elster, we might describe the use of such rules as providing us with yet another example of man "as a globally maximizing machine," a characterization he traces back to Leibniz (in Elster's Ulysses and the Sirens: studies in rationality and irrationality, 1984 ed.): "Investment is perhaps the simplest example of global maximization that requires bypassing a local maximum: one step backwards in order to take two steps forward." In the instant case, what is prima facie anti-democratic (i.e., a step backwards) is, in the end, democracy enhancing: "Although the immediate valence of the rules is dramatically countermajoritarian, their downstream effects [i.e., two steps forward] may be justified in majoritarian terms." Perhaps the best know of such rules is the "famous 'Rule of Four' that allows four Justices to grant a writ of certiorari and thereby put a case on the Supreme Court's agenda."
Finally, and to return to the discussion of the nondelegation doctrine, Vermeule notes that
In a world without a nondelegation doctrine, the role of judges is to enforce congressional instructions, including instructions to delegate. The principal rule the American legal system uses to implement this scheme is the so-called Chevron doctrine, after an all-important Supreme Court decision in 1984.* Under Chevron, judges are to enforce clear congressional instructions, but where statutes are unclear or silent, judges presume that Congress has delegated policymaking authority to the executive.
Unfortunately, and despite the best intentions, Chevron has not proven efficient or very adept at promoting democratic accountability:
Chevron fares poorly because it attempts to allocate policymaking authority through soft-edged legal doctrine, making it vulnerable to a range of problems: conceptual imprecision, cognitive burdens that afflict boundedly rational judges, and manipulation on the part of biased judges.
Vermeule proposes a voting rule over the current doctrinal solution to "what is, after all, an institutional problem: the allocation of interpretive authority between agencies and courts when congressional instructions are silent or ambiguous." Specifically, Chevron could instead be implemented through voting rules:
A supermajority voting rule for multimember panels could state that on the nine-member Supreme Court, agencies will win against any claim that they have exceeded the bounds of their delegated authority, unless six Justices vote against the agency. [....] The basic idea...is to find voting mechanisms that implement Chevron's own goals of accountability at lower cost. In so doing, the hope is that small-scale changes in the design of judicial voting rules can produce large improvements in the system of democratic lawmaking.
*For recent articles with important discussions of Chevron, see William N. Eskridge, Jr. and Lauren E. Baer, "The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan," The Georgetown Law Journal, Vol. 96 (2008): 1083-1226, and Lisa Schultz Bressman, "Chevron's Mistake," Duke Law Journal, Vol. 58, No. 4 (January 2009): 549-621.