Riker, William H.

English

Chicago-Kent College of Law

Chicago-Kent Law Review Volume 67 Issue 3 University of Virginia Law School of Law John M. Olin Foundation: Symposium on Law and Economics of Local Government Article 4 October 1991 Comment on Baker, Direct Democracy and Discrimination: A Public Choice Perspective William H. Riker Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview  Part of the Law Commons Recommended Citation William H. Riker, Comment on Baker, Direct Democracy and Discrimination: A Public Choice Perspective, 67 Chi.-Kent L. Rev. 791 (1991). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol67/iss3/4 This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact jwenger@kentlaw.iit.edu, ebarney@kentlaw.iit.edu. COMMENT ON BAKER, "DIRECT DEMOCRACY ANDDISCRIMINATION: A PUBLIC CHOICEPERSPECTIVE"WILLIAM H. RIKER*On the whole, I agree with Professor Baker's purpose and conclu-sion. I do, however, disagree with one feature of her argument and, in-deed, of the arguments of her chosen opponents, Eule and Bell. Thisdisagreement leads me to urge a slight modification of her conclusions.In listing the differences between representative and plebiscitary in-stitutions, she and her opponents omit what seems to me a difference atleast as important as any they do list, namely, the control of the agendain the two legislative systems. The difference is quite clear: In a referen-dum, the agenda is set, almost always and almost entirely, by the authorof the initiative, while, in the representative system, the agenda is set by acombination of the legislature's majority party (or a committee of it),back benchers who in one way or another insert themselves in theagenda-setting process, and the pre-existing legislative rules.Holding tastes constant, agendas do, to a considerable degree, deter-mine outcomes. This is why legislators angrily and craftily dispute aboutagendas, although ordinary citizens usually think the subject arcane andtrivial.' It is precisely these matters, which legislators know to be deter-minative, that the initiative system turns over to whomever in the generalpublic takes the trouble to grab for them. It would be strange indeed ifthis difference in the location of agenda-setting authority did not makesome difference in the content of outcomes.To appreciate the complications of agendas, I offer an example of a* University of Rochester1. For discussions of the problems of agenda setting in legislatures, see WILLIAM H. RIKER,LIBERALISM AGAINST POPULISM: A CONFRONTATION BETWEEN THE THEORY OF DEMOCRACYAND THE THEORY OF SOCIAL CHOICE 169-95 (1989); WILLIAM H. RIKER, THE ART OF POLITICALMANIPULATION 1-17, 34-51, 78-141 (1986). For the fundamental works on agenda setting, seeRichard D. McKelvey, Intransitivities in Multi-dimensional Voting Models and Some Implicationsfor Agenda Control, 12 J. ECON. THEORY 472 (1976); Richard D. McKelvey, General Conditions forIntransitivities in Formal Voting Models, 47 EONOMETRICA 1085 (1979); Michael E. Levine &Charles R. Plott, Agenda Influence and Its Implications, 63 VA. L. REV. 561 (1977); Charles R. Plott& Michael E. Levine, A Model ofAgenda Influence on Committee Decisions, 68 AM. ECON. REV. 146(1978). For the basic works on agenda-setting in referenda, see Thomas Romer & Howard Rosen-thal, Bureaucrats versus Voters: On the Political Economy of Resource Allocation by Direct Democ-racy, 93 Q.J. ECON. 563 (1979); Thomas Romer & Howard Rosenthal, Political Resource Allocation,Controlled Agendas, and the Status Quo, 33 PUB. CHOICE 27 (1978).CHICAGO-KENT LAW REVIEWset of motions in a cycle. By reason of McKelvey's chaos theorem, weknow that, on any subject with two or more dimensions, the set of infinitepossibilities for alternative motions is always cyclical.2 So a cyclical ex-ample is characteristic of most moderately complicated subjects of legis-lation, whether dealt with by representative or plebiscitary institutions.In the most abstract case, with three alternatives and three persons (orfactions) using simple majority rule on a binary agenda, the social choice,given the cycle, depends entirely on the agenda. In Figure 1, I haveshown that, with the forward cycle, the three possible agendas for threealternatives each result in a victory for the alternative not in the initialbinary choice. Consequently, given the cycle, which one of the three al-ternatives wins depends entirely on which agenda is used.FIGURE 1 ABSTRACT AGENDASALTERNATIVES: a, b, c PERSONS: 1, 2, 3Preference Orders Social Outcome of Preference Orders(forward cycle) by Majority Rulea vs. b b vs. c c vs. a1. abc 1,3 2 1,2 3 2,3 12. bca3. cabSo: abcaAgendas with binary votes for eliminationa vs. b a vs. c b vs. ca vs. c c vs. b b vs. awinner winner winnerIf we now complicate this example with rules about the constructionof the agenda, it is apparent that they help to fix the outcome. In Figure2, I have identified one of the motions as the status quo. (In Anglo-American parliamentary procedure, agendas usually provide that the sta-tus quo, if one exists, enter the agenda last. The rationale is that thebody should first perfect that which is intended to displace the statusquo. Except in unusual cases (e.g., perfect information), the later a mo-tion enters the voting, the better its opportunity to win. So Anglo-Amer-ican procedure conservatively, and in my opinion, properly gives anadvantage to the status quo.) With the motion C now identified as SQ,2. See generally McKelvey, supra note 1.[Vol. 67:791COMMENT ON BAKERthe parliamentary agenda over three alternatives is thus fixed: initially Aand B must meet, then the winner meets SQ.FIGURE 2 AGENDAS WITH AND WITHOUT A RULE FOR PERFECTIONa vs. bIa vs. Sq b vs. Sqwinner winner(a) in an assembly with a rule (b) in a plebisciteSuppose, with c still fixed as SQ, that some initiating interest groupmakes the decision on which motion is to face the status quo in a referen-dum. If the group chooses A, then SQ triumphs. But there is no need forthe group to choose A because there is no existing rule about the perfec-tion of alternatives to the status quo. The interest group may choose B,in which case B triumphs. So in this simple three alternative case, in arepresentative assembly, where there is a rule about perfection of alterna-tives, the status quo wins for certain, while in a plebiscite, with informedand capable proposers, some substantive displacement of the status quomay win, even though the majority prefers the status quo to some othersubstantive motion.In general, the same advantage for manipulation resides in the initi-ator of a plebiscite, regardless of the number of alternatives and motions.It is true that opponents of a referendum may introduce other alterna-tive referenda. This turns the procedure from binary to n-ary and theoutcome may be expected to vary. While this situation is not well under-stood, I believe it often advantages the status quo insofar as the votersinterpret the situation correctly, that is, if they see that they should votefor only one of the alternative proposals. If so, then the substantive win-ner, if it exists, must not only beat the status quo but also every otherproposal. This gives the status quo a better chance. But if the voters donot correctly interpret the situation, they may pass two contradictorysubstantive motions, an outcome that is difficult to interpret.To summarize, the crucial difference between agenda setting in thetwo institutions is that the parliamentary procedure allows all the mo-tions that any member wishes to bring out to enter the voting at somepoint and reserves the most advantageous position for the status quo,while the plebiscitary procedure allows the first pressure group to takethe opportunity to get a substantial advantage over latecomers and thestatus quo.1991]CHICAGO-KENT LAW REVIEWLet us now give the agendas of Figures 1 and 2 some names relevantto the subject of Professor Baker's paper. Let SQ mean "continued bus-ing," let B mean "an absolute end to busing," and let A mean "continuedbusing but only for a new set of magnet schools." Let a racial minoritygroup order: SQAB, money savers order: BSQA, and school improvers or-der: ABSQ. Then, as shown in Figure 3, the racial minority gets its bestoutcome in the representative system and its worst outcome in a plebi-scite system.FIGURE 3 A SUBSTANTIVE INTERPRETATION OF AGENDA INFIGURES 1 AND 2PREFERENCE ORDERS ALTERNATIVESMinority: Sq ab a: continued busing, but only for a new set ofmagnet schoolsMoney Savers: b Sq a b: busing eliminatedSchool Improvers: abSq Sq: continued busingAssembly Winner: Sq Plebiscite Winner: bOf course, all this is pretty abstract. It assumes that participantsknow others' preference orders; it assumes that opponents of the statusquo are clever enough to invent a motion that beats the status quo eventhough it loses to other potential alternatives; it assumes that defendersof the status quo or of alternative motions allow the opponents of thestatus quo to seize the initiative and do nothing to attempt to win it back;etc., etc. But these are not terribly difficult assumptions to satisfy in thereal world. Indeed, the fact that Eule and Bell wrote their essays seemsto me to indicate that they intuitively understood this, though they ap-parently did not write about it. So I think there is some reasonably solidground for the assertion that minorities have a better chance under arepresentative system.Does this new grounding also imply that courts ought to review ple-biscitary legislation more carefully than representational legislation? Ithink not. But it does, I think, give courts a new way of scrutinizingplebiscitary legislation in applying the equal protection doctrine. Thefact that legislation comes through the plebiscitary process gives clues tothe identification of the group disadvantaged by the challenged legisla-tion. Presumably courts are at least as capable as journalists in identify-ing the sponsors or agenda-makers for plebiscitary legislation and this isa good test of whom the legislation advantages. This is not a due processtest of the plebiscitary process, but it is an enhancement of the equalprotection test.[Vol. 67:791

Comment on Baker, Direct Democracy and Discrimination: A Public Choice Perspective

https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3865&context=cklawreview

Comment on Baker, Direct Democracy and Discrimination: A Public Choice Perspective

Abstract

Similar works

Full text

Available Versions

Chicago-Kent College of Law