fbpx

Testing the Logic of Veto Points

Conventional wisdom is that separation-of-power political systems are inherently conservative in the sense of being a status-quo preserving institution. As one adds veto points to the legislative process, the thought goes, less legislation will be implemented relative to a system with fewer veto points.

The argument is seemingly straight forward: Let’s say we have a unicameral legislature in a system of legislative supremacy (a parliamentary system, for example). Let’s say that the legislature enacts N statutes. Now let’s add a veto player. A second legislative chamber. A judicial veto. An executive veto. The veto player will kick out some of the bills enacted by the original legislative chamber. Let’s say the number of bills kicked out by the addition of the veto player is n ≥ 0. So in a separation-of-power system, the thought goes, the number of laws implemented will be (weakly) fewer than the number of laws implemented in a system of legislative supremacy, since N – n ≤ N.

Progressives, particularly in the first half of the 20th Century, supported unicameralism and opposed judicial review because of their ostensibly status-quo preserving character. (Sen. George Norris, leading advocate of unicameralism during the Progressive Era, complained that bicameralism provided too much check and balance on legislation. He had similar complaints about judicial review at the time – a period of robust judicial application of the doctrine of substantive due process.)

The theoretical claim about the impact of adding institutional veto players on legislative production, while seemingly simple and obvious, is mistaken.

We’ll start with bicameralism, although here I’m cheating somewhat from the start. To wit, in the “strong” bicameralism that exists in the U.S., second chambers can initiate their own legislation as well as kill legislation from the other chamber. (Money bills are an exception in the U.S. Congress, where only the House may constitutionally initiate money bills, as is the case in a number of state legislatures.) So strictly speaking I’m not discussing a pure veto player here. (I plan to consider purer cases in a subsequent post, however.) Nonetheless, the case of bicameralism is notable enough to merit its own attention, despite being proposal-players as well as veto players.

Whether legislative production by a bicameral legislature is less than production by a unicameral legislature depends as a theoretical matter on more than whether a second chamber exists. The overall production of enacted laws – laws enacted by both chambers (we’re ignoring other veto players for now, like executives with a veto) – depends on the amount of legislation originating in both chambers, and the interchamber passage rate: the rate at which legislation originating in one chamber is also approved or rejected by the other chamber. It takes only a little reflection to see that whether this number is greater or less than the amount of legislation implemented in a unicameral system is indeterminate. Theoretically, the bicameral legislature could just as easily generate more legislation relative to a unicameral system as it could generate less legislation.

As I showed some years back in Legislative Studies Quarterly, some states have inter-chamber adoption rates high enough to make it plausible to think (subject to several assumptions that I won’t rehearse here) that some bicameral systems generate more implemented legislation than would be generated by a single body of legislators in that state.

I also looked at legislation before and after cameral transitions in the four U.S. states that have experienced them: Georgia, which moved from a unicameral legislature to a bicameral legislatures in the 1780s; Pennsylvania, which moved from unicameral to bicameral in the 1790s; Vermont which transitioned from unicameral to bicameral in the 1830s; and Nebraska, which transitioned from bicameral to unicameral in the 1930s.

Given the low number of transcameral legislatures among U.S. states, the data are merely illustrative at their very best. Nonetheless, three of the legislatures (Georgia, Pennsylvania, and Vermont) on averaged produced more legislation as bicameral legislatures than they produced as unicameral legislatures. (The increase in legislation for bicameral Georgia, however, was not statistically significant, not that we would want to grant the data from Vermont and Pennsylvania much more merit even though they were.) The unicameral legislature in Nebraska produced more legislation on average than its bicameral legislature.

Again, one does not want to put too much weight on the evidence, given the few cases and the highly contextualized historical conditions faced by the different legislatures over a period of 150 years. Nonetheless, the evidence, such as it is, is consistent with the theoretical claim that that cameral choice should have no systematic effect on legislative production.

As I mentioned above, however, discussing the case of strong bicameralism is a bit of legerdemain in a discussion of the impact of “veto players” on legislative production. I discuss it first only because conventional wisdom often talks of second chambers in bicameral systems as if they were veto players. I should also add that there is a different sense in which, at the micro-level, bicameralism can be understood as a status-quo preserving institution. I expect to talk about that argument, and, more significantly, to consider the impact of purer forms of institutional veto players on legislative production, in future posts.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on November 04, 2016 at 10:03:27 am

Interesting series of essay; Of course, in my view, the best form of legislature is one that produces the least net gain in legislation; a zero-sum gain, or negative sum, is preferable. This is not necessarily the same as one that is dead-locked or dysfunctional. But, we must remain in reality.

I suppose it would be useful, when considering gross legislative production, to consider what if any, statistical impact may result from breaking-out/capturing from single bills, and counting as separate, any individual "riders", (in my view "bills within a bill", germane or otherwise).

To take it one step further, to capture in the gross measure, the individual administrative agency policy determinations (those that will hold the full force of law) attributable to a single legislative act.

read full comment
Image of Paul Binotto
Paul Binotto
on November 04, 2016 at 10:47:41 am

"To take it one step further, to capture in the gross measure, the individual administrative agency policy determinations (those that will hold the full force of law) attributable to a single legislative act."

Good point(s)!

Demonstrates that a) discussion of veto points is beside the "point" when b) a viable governing structure based upon separation of powers is absent - as is the case with our current governance.

In effect the Fed Admin State simply does not recognize veto points nor does anyone appear willing to compel them to do so.

read full comment
Image of gabe
gabe
on November 04, 2016 at 11:05:23 am

Mr. Gabe,

Thanks for articulating and tightening with greater coherence, the direction of my thoughts.

How bout dem Cubbies?!

read full comment
Image of Paul Binotto
Paul Binotto
on November 04, 2016 at 14:15:18 pm

What Rogers had demonstrated is that, over time, legislatures have passed bills at a higher rate regardless of their structure.

To really analyze Roger's thesis, we'd want to calculate some baseline--average number of bills passed by all state legislatures in any given year, or average rate of growth in numbers of bills passed--and then see how a change from uni- to bi-cameral structure caused a state's output to differ relative to the baseline. If your state used to pass 1/3 as many bills as the average legislature, and after you switch to a bi-cameral structure you now pass 1/2 as many bills, that would suggest that a bicameral structure was not impeding passage controlling for all other variables.

(That's how we analyze whether management has done any good for a company: Not by comparing a company's current value to past value, but by comparing its rate of growth relative to the growth of the stock market index.)

Plus, yea Cubs.

read full comment
Image of nobody.really
nobody.really
on November 04, 2016 at 14:56:28 pm

Of course, introducing the ability of one office to veto the proposals of another office introduces the problem of having proposals introduced for political purposes that were never seriously intended to become laws. In this case the veto actually increases the number of proposed laws. Perhaps some of those politically motivated proposals actually become law, which would influence an increase the number of new laws.

The combinations of offices, parties, structure and individuals form an aggregation of influences. Mathematically, this approximates the Travelling Salesman problem, which means it's a very tough nut to crack. Such systems are generally unpredictable and their full operation is hard to describe. The best you can do with governmental systems (I work with computer systems) is determine the worst problem areas and make efforts to prevent problems in those areas.

Personally, I'm more concerned with the conscientiousness of the persons making the veto than I am with other nuances of the structure. For example: How does party and wealth affect the ability of vetoers to veto? How does transparency affect the ability of the votoer? Those seem to me at least to be a greater concern than the architecture, since conscientious office holders will make needed architectural reforms.

But this is a good series of essays so far. Right up my ally. Lookin' forward to more.

read full comment
Image of Scott Amorian
Scott Amorian
on November 04, 2016 at 15:01:39 pm

Agreed and same for the Cubbies!

Hey, if the Cubbies can win - da ya think maybe the Chicago boys can finally throw off the curse of a Century of Democrat Party Rule. Nah, God didn't make THAT many green apples, now did he, Harry?

read full comment
Image of gabe
gabe
on November 04, 2016 at 15:04:26 pm

Yep, PLUS - HOW much legislation is passed simply as a sop to the latest crisis mongers and as a means of generating favorable press coverage. I would say that neither motive is reflective of "conscience."

read full comment
Image of gabe
gabe
on November 04, 2016 at 16:03:57 pm

A couple more thoughts, and then back to work for me.

The amount of legislation produced should increase or decrease based on the number of legislators proposing laws, and the strength of the ability of one chamber to veto.

If a transition from unicameral to bicameral occurred and more legislative seats were available for office holders to propose laws, there should be an increase in the number of laws.

If the transition created a chamber with limited ability to propose laws and a strong ability to veto, that should influence a decrease in the number of laws.

But systems with single-seat elections generally result in a two-party system. (Generally the number of strongly influential parties in a democratic system equals the number of available seats for each district, plus one, up to a maximum of about five.) The two parties have a powerful influence on the creation of law. To the degree that they can collude, more laws will be created. So single seat chambers would be more likely to pass more laws since it is harder to get more than two parties to collude.

Having both chambers elected at the same time should also have a strong influence, since the public will tend to move both chambers in the same political direction, so individual parties should dominate, so more laws will get passed.

And, there's lots of things other than those on this off-the-top-of-my-head short list that could strongly influence the number of laws produced.

read full comment
Image of Scott Amorian
Scott Amorian

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.