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Too Many Steps of Review? Free Riding and the Separation of Powers

When serving as Department Head a few years back, I noticed administrative items routed for comment and approval through a series of “stakeholders” (jargony word, I know) sometimes still had glaring errors in them at the end of the process. The circulation to a wide group aimed to receive broad input from people with interests and, perhaps, knowledge, related to the item. The actual outcome was sometimes the opposite: Because of the number of reviewers, it seemed everyone assumed someone else would review the proposal carefully. So no one read the proposal carefully.

The irony is that had the proposal been assigned to one person or office for review, the single iteration of review would have produced a better outcome than a review process with multiple points of review.

This ironic outcome is an example of informational free riding: Multiplying steps in a review process aims to create a superior outcome, yet it can sometimes produce the opposite, an outcome worse than if the review process had only one step to it. To be sure, this perverse outcome did not happen all the time, or even all that often. Nonetheless, it happened often enough to get my attention when it did occur (and when I happened to notice it).

The risk of informational free riding extends beyond the byzantine bureaucracy of the academy. It can happen in separation-of-power political systems, given their multiple veto points.

To be sure, separation-of-power political systems first aim to create institutional “checks and balances,” and thereby to deter abuses of power. Beyond that, separation-of-power systems create a policy process to generate input from a broad class of (… wait for it …) political stakeholders: states in the Senate, the demos in the House, a national constituency in the Presidency, and legal experts in the judiciary.

But a significant, if often overlooked, part of the argument for the US separation-of-power system is that multiple actors will generate informationally superior policies – or at least superior ones relative to a simpler system in which legislative power is held by a unicameral body. While Congress is bicameral, that body does not exhaust the national legislative process. The President’s veto is, in fact, legislative power given to the President. While only a partial veto, it nonetheless can be thought effectively of creating a tricameral legislative process. Add judicial review, particularly during the era of substantive due process when courts reviewed the “reasonability” of legislation, and we might be excused for thinking the U.S. had the effective equivalent of a quadcameral legislative system.

Each additional veto player in the separation-of-power policy process, in principle, provides a “second sober look” at what has gone before. Or a third. Or even a fourth. Yet like the academic memo circulating among different administrators, it’s possible all of the institutional veto players wrongly expect the other veto players to provide the requisite “sober second look.” In such a case, a single institution with full responsibility for review and adoption would generate an informationally superior policy relative to the multiplied review process of the separation-of-power system.

Again, though, this doesn’t happen all the time. It doesn’t even happen much of the time. In the jargon of game theory, the players are implementing mixed strategies, that is, they are scrutinizing probabilistically, sometimes paying attention and sometimes not. What that means, though, is that with positive probability sometimes something slips through in which no veto player paid close attention.

The striking implication, however, is not that the separation-of-power system did not produce legislation any better than a unicameral decision maker, because of informational free riding among the multiple players in separation-of-power systems, the legislative outcome is actually worse than would have been made by a unicameral decision maker.

This is not to say that a system of system in which a unicameral legislature makes policy directly, without other veto players, is perforce better overall. But there are trade-offs. As Madison writes of the bicameral Congress in The Federalist 62, “It must be acknowledged that this complicated check on legislation may in some instances be injurious as well as beneficial.”

The institutional players themselves sometimes express awareness of this possibility, if implicitly. The U.S. judiciary adopted its extremely deferential “rationality review” for ordinary (non-suspect) socioeconomic legislation, in part, to avoid creating a moral hazard for U.S. legislatures. They wanted to avoid heightened judicial scrutiny becoming akin to a judicial insurance policy against bad legislation, thereby inviting legislative indolence in the policy process.

At the same time, bicameralism itself, along with the presidential or gubernatorial veto, can create informational free riding. Must judges ignore lousy legislation? The post hoc nature of judicial review of legislation, along with the standing doctrine (which creates informationally rich litigants with actual injuries caused by statutes), positions courts nicely to provide ex post checks on the reasonability of legislation.

The surprise, though, isn’t just that legislative bicameralism (or tricameralism, or quadcameralism) will sometimes not be able to improve on unicameral outcomes, it’s the possibility that, because of informational free riding, the multicameral process will produce worse legislation than a unicameral process. The question for institutional designers is to gauge the size of the loss relative to the gain when adding more veto players to the process.

Reader Discussion

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on February 01, 2018 at 16:10:53 pm

My general thoughts are that the Framers wished to provide a more perfect union, not a more perfect policy. They were more concerned with protecting the minority from the fractional majority, and unicameral systems most usually (read, "always") devolve into fractional majorities, at their best, despotic rule, at worse.

In my view, all socio-economic legislation is ordinarily suspect. Judicial deference, in every instance, by Art. III judges, violates their Constitutional duty to render an independent judgement and lays the ground-work for systemic bias in favor of the government agency, and compromises 5th Amendment due process protections.

Prof. Rappaport presented a paper at The Federalist Society recently (see his 01/30/2018 post) where his call to put the brakes on Skidmore, Chevron, and Auers was derided. Based on everything I've read on this subject, I agree with Rappaport.

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Paul Binotto
on February 01, 2018 at 16:13:19 pm

Correction: "Factional" Majorities

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Paul Binotto
on February 02, 2018 at 14:26:00 pm

Rogers neglects to mention that at times, the 2nd leg of the legislative process may serve as an "intended' corrective to the 1st legs inability, unwillingness (read: cowardice) to craft legislation that may be perceived by voters as controversial, or otherwise not in the voters best interest.

How often will one House *pass off* legislation to another House with the understanding that the "problem" will be resolved by the other House.

While such subterfuge was not intended by Mr Madison, it is certainly intended by House / Senate Leaders.

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gabe
on February 02, 2018 at 16:16:32 pm

"[W]ill be resolved by the other House" - which, of course, means, it will be buried so deep in committee that it would be easier to find Jimmy Hoffa (MHRIP) than find that "uncomfortable" Bill...

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Paul Binotto
on February 03, 2018 at 10:57:13 am

Hey, Jimmy has been found. According to well respected sources in the Democrat National committee, Putin has him!

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gabe
on February 03, 2018 at 22:13:17 pm

I’m not entirely sure I understand the dynamic Rogers is talking about here—whereas I have a somewhat stronger understanding of the dynamic gabe discusses.

Why would multiple parties in an academic institution let some “error” in a document slide? I’d guess it’s because people felt inclined to invest their attentions elsewhere, counting on others to invest their time and effort in reviewing the document.

Clearly legislators behave likewise. They lack the time and resources to become expert on all pending legislation. Thus, they basically focus on the works of their respective committees, and defer to party leadership regarding how to vote on other matters. (As Gilbert & Sullivan remarked,

I always voted at my party's call,
And I never thought of thinking for myself at all.
I thought so little, they rewarded me
By making me the Ruler of the Queen's Navy….

But this strikes me as an unremarkable dynamic, and it’s hard changing expectations about reviewing documents would improve upon it.

The more remarkable free-rider dynamic arises not from the inability to become knowledgeable about all legislation, but from the selective ignorance and passivity on matters of note. The fight for election/reelection has grown so strenuous that pretty much everything is sacrificed toward that end. Thus, legislators find it to their advantage to refrain from taking any action for which they might be blamed—and they know that they’re unlikely to be blamed for simple inaction. If I lead an effort to oppose invading Iraq, and Saddam later does something bad, I’ll be blamed. If I remain passive, and the war becomes a boondoggle, people will blame Bush; my culpability for inaction will go unnoticed.

Indeed, this can go beyond simple inaction: Legislators often lead charges they know will be fruitless simply to burnish their credentials with their deluded constituents. I can loudly proclaim my support for banning abortions or banning Muslims—confident that the courts will block any such policies from taking effect. I can lead the parade for Bernie becoming the nominee, utterly ignoring the mathematical impossibility of this outcome, confident that the DNC will be about to count the delegates. The chief problem with this strategy is that it teaches the public to expect that legislators can deliver the impossible—and it makes people cynical when the promises are left unfulfilled.

(This kind of free-riding often appears in Modern Family, where both Phil and Cam set up Mitchell as the guy to deliver negative feedback to people’s proposals. Mitchell eventually learns to calls their bluffs, opting to withhold his judgment and go with the flow, thereby leaving it to others to raise the necessary objections.)

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nobody.really
on February 04, 2018 at 10:48:44 am

Ha! Is this like that old riddle, "Who's buried in Grant's tomb?" but, instead, "Guess who's buried in Lenin's tomb?"

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Paul Binotto

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.