Simple rules and gaming the system

Are sim­ple, easy-​​to-​​administer rules ruin­ing America? There’s a clas­sic debate over whether laws and reg­u­la­tions should be sim­ple rules or com­plex stan­dards. Systems with sim­ple rules are eas­ier to admin­ster, but they get results wrong some of the time. Standards get the right result more often, but they are expen­sive to admin­ster. A fan­ci­ful exam­ple: speed lim­its. A sin­gle speed limit—60 m.p.h.—may be gen­er­ally OK, but still often wrong because it’s too high in bad weather or at night, or too low when there’s no one on the road or for dri­vers rush­ing to the hos­pi­tal. A stan­dard would get it right, but be harder for cops to admin­is­ter on the spot. (Yes, I know dri­vers are sup­posed to change their speed based on con­di­tions, but this is just for illus­tra­tion.) Cheap sim­ple rules are should be pre­ferred when error costs (the fre­quency and sever­ity of wrong results) are low, but stan­dards should be used when the error costs are high enough. But is it pos­si­ble that using sim­ple rules gen­er­ally will cre­ate a cal­loused pub­lic that will seek to game the sys­tem more and make the sim­ple rules less efficient?

That ques­tion pop­poed into my mind when I read Frank Bruni’s op-​​ed cas­ti­gat­ing Tim Ferriss for sug­gest­ing that trav­el­ers place unloaded starter guns in their checked bags. (Ferriss says this will guar­an­tee close scrutiny, and reduce the risk of your bag being lost.) Bruni says that there’s an epi­demic of self­ish­ness in the country:

While I doubt there will be a rush on starter pis­tols by air­line pas­sen­gers — it’s just too much trou­ble, and too bizarre — his over­ar­ch­ing inter­est in gam­ing the sys­tem at hand is mir­rored in other Americans’ behav­ior. So is his empha­sis on per­sonal advan­tage over the pub­lic good, which would be under­mined if every trav­eler did as he coun­seled. There’d be bed­lam in air­port secu­rity oper­a­tions and a ludi­crous num­ber of peo­ple car­ry­ing around what could be mis­taken for lethal weapons.

Selfishness run amok is a national dis­ease (and, to judge by Greece, Italy and a few other European coun­tries, an inter­na­tional epi­demic). Too many peo­ple behave as if they live in a civic vac­uum, no broader impli­ca­tions to their indi­vid­ual behavior.

Is a sys­tem of sim­ple rules encour­ag­ing this? Perhaps if the sys­tem weren’t so easy to game, peo­ple would do it less? If peo­ple didn’t feel like oth­ers were tak­ing advan­tage of loop­holes, they wouldn’t try to do the same? If TSA agents could exer­cise judg­ment to punish—or make things harder—for folks like Ferriss, per­haps every­one would just fol­low the rules and every­thing would go more smoothely?

But con­sider also this Planet Money episode, where econ­o­mist Luigi Zingales argues that America is becom­ing more like Italy: a place where con­nec­tions and money deter­mine pub­lic pol­icy, instead of the gen­eral wel­fare. He argues that we need sim­pler rules, not more nuanced stan­dards. As he sees it, the more nuanced a rule is, the more likely it is to be read only by the rich (or their employ­ees) seek­ing to take advan­tage of the nuanced sub-​​clauses. These nuances are often inten­tional give­aways to favored groups or busi­nesses. And this looks a lot like Italy, in Zingales’ telling.

In Italy, post-​​World War II com­mu­nist gov­ern­ments needed to con­vince busi­nesses that they weren’t about to have their prop­erty and money con­fis­cated by the gov­ern­ment. So the gov­ern­ment offered sweet­heart deals and guar­an­tees to busi­nesses. But when bribes (or sweet con­tracts) first start being used, they become nec­es­sary. This raises prices for every­one, from infra­struc­ture projects to pro­duce. And it’s not just money: it’s trust. When he arrived here, Zingales was shocked when Americans paid atten­tion to local lead­ers’ warn­ings about a severe storm. He thought that the direc­tion to tape up win­dows meant someone’s brother owned a tape fac­tory. In Italy, as Zingales describes it, it was a good idea to find out what the gov­ern­ment wants you to do—then do the oppo­site. If peo­ple can’t trust their lead­ers, the costs of effec­tively han­dling crises and day-​​to-​​day gov­ern­ment activ­i­ties become enormous.

But maybe here the issue isn’t that the rules are too sim­ple: it’s that they’re too com­plex. Getting on a plane is a mas­sive ordeal. And appar­ently it’s OK to pack an unloaded starter gun in checked lug­gage. (Are oth­ers for­bid­den?) Perhaps if it were sim­pler to get on a plane (and to check lug­gage), every­one wouldn’t feel so shafted, and Bruni’s “self­ish­ness” wouldn’t be such a problem.

Marriage federalism

So President Obama has finally done what every­one thought he was going to do: he endorsed gay mar­riage. (Bully for him for doing it before the elec­tion. Though Biden’s loose lips basi­cally forced him to.) But there’s still an argu­ment about his qual­i­fi­ca­tion: he thinks states should be allowed to choose whether to have gay mar­riage. He’s right. (And I hope he stops evolv­ing right there.)

There are good rea­sons for let­ting states con­trol mar­riage. Marriage and fam­ily law has tra­di­tion­ally been a state issue. They have the exper­tise in this area.

The fed­eral gov­ern­ment does not. Federal laws deal­ing with gay mar­riage gen­er­ally pig­gy­back on state laws. (This is a rea­son to ques­tion the wis­dom of DOMA.) When the fed­eral gov­ern­ment mucks around in marriage—which affects lots of related inter­ests, like adop­tion, inher­i­tance, and benefits—unforeseen issues can become incred­i­bly thorny. And while fed­eral courts could be expected to decide the issues rea­son­ably, they’re already over­bur­dened, and adding a host of fam­ily law issues will only add to that burden.

Traditional prin­ci­ples in favor of fed­er­al­ism also coun­sel let­ting states own mar­riage. The national gov­ern­ment has lim­ited pow­ers, gen­er­ally related to national wel­fare, while states are left to run their own inter­nal affairs, so long as they fol­low the Constitution and don’t intrude on national affairs. This divi­sion of sov­er­eignty puts deci­sion mak­ing power at the low­est pos­si­ble level, ensur­ing that those most affected by gov­ern­ment action don’t have to talk to some­one far away—by dis­tance, inter­ests, or beliefs—to get heard.

Apart from legal prin­ci­ples, there’s real­ity. All it takes is look­ing Roe v. Wade—the Supreme Court deci­sion that legal­ized abortion—and the effects it had on America. The deci­sion ripped the issue away from the states just as many were begin­ning to come to a con­sen­sus that abor­tion should be legal in some cir­cum­stances. The mod­ern, socially con­ser­v­a­tive Republican Party can thank Roe for its exis­tence. The for­mal legal­iza­tion of abor­tion also didn’t have much effect on abor­tion access. In many states, abor­tion is effec­tively unavail­able or nearly so, thanks to oner­ous regimes. (Even sup­port­ers of Roe, like Justice Ruth Bader Ginsburg, acknowl­edge that it went to far and poi­soned politics.)

Even if you think that mar­riage is a fun­da­men­tal right (not some­thing I agree with, even as a gay-​​marriage sup­porter), you should ask whether you think imme­di­ate, national gay mar­riage is worth another quar­ter cen­tury of pol­i­tics divided along social lines. As a gay mar­riage sup­porter dis­mayed by the state con­sti­tu­tional pro­vi­sions around the coun­try ban­ning gay mar­riage, I still rest com­fort­ably know­ing that in 10 or 20 years, all those pro­vi­sions will be gone. Young peo­ple sup­port gay mar­riage, and as they get more power and older oppo­nents of gay mar­riage die or con­vert, the tide will shift enough for gay mar­riage to become the law of the land in every state.

Letting that process run nat­u­rally will allow our pol­i­tics to become more sane, more respect­ful. And you’ll still get what you want.

The meaning of silence

The Constitution means less than you think it does. Ezra Klein argues that the Constitution “rarely speaks directly to the ques­tions we ask it.” Despite what some con­ser­v­a­tives or lib­er­als think the Constitution “obvi­ously” says, Klein is right. But the point should be taken one step fur­ther: when the Constitution has noth­ing to say about a sub­ject, we should not attempt to read more into it.

Klein raises his point in the con­text of the House Republicans’ new rule requir­ing every piece of leg­is­la­tion to cite to the con­sti­tu­tional pro­vi­sion autho­riz­ing it. (Another new rule requires the Constitution to be read aloud at the start of the session.)

My friends on the right don’t like to hear this, but the Constitution is not a clear doc­u­ment. Written more than 200 years ago, when America had 13 states and very dif­fer­ent prob­lems, it rarely speaks directly to the ques­tions we ask it. The Second Amendment, for instance, says noth­ing about keep­ing a gun in the home if you’ve not signed up with a “well-​​regulated mili­tia,” but inter­pret­ing the Second Amendment broadly has been impor­tant to those who want to bear arms. And so they’ve done it.

That’s their right, of course. Liberals pick and choose their moments of tex­tual fidelity as well. But as the seem­ingly end­less series of 54 splits on the Supreme Court shows, even the country’s most expe­ri­enced and dec­o­rated con­sti­tu­tional author­i­ties rou­tinely dis­agree, and sharply, over what the text means when applied to today’s prob­lems. To pre­sume that peo­ple writ­ing what they think the Constitution means — or, in some cases, want to think it means — at the bot­tom of every bill will change how they leg­is­late doesn’t demon­strate a rev­er­ence for the doc­u­ment. It demon­strates a dis­en­gage­ment with it as any­thing more than a sym­bol of what you and your ide­o­log­i­cal allies believe.

In real­ity, the tea party — like most every­one else — is less inter­ested in liv­ing by the Constitution than in decid­ing what it means to live by the Constitution. When the con­sti­tu­tional dis­claimers at the bot­tom of bills suit them, they’ll respect them. When they don’t — as we’ve seen in the case of the indi­vid­ual man­date — they won’t.

There’s a way to solve this prob­lem. When the Constitution has noth­ing to say about a subject—say, abor­tion, gay mar­riage, indi­vid­ual gun ownership—it has noth­ing to say. And when some­one argues that there’s a con­sti­tu­tional rule but there isn’t one, they lose that claim. (My sug­ges­tion isn’t novel, nor is it mine. It’s exactly what Judge Frank Easterbrook pro­posed in Statutes’ Domains ($)). What hap­pens then? The issue remains in the polit­i­cal process, for bet­ter or worse.

Hunkering down

The Obama admin­is­tra­tion appears to be hun­ker­ing down for a long fight to defend its health care law. The fight will sap the administration’s energy just as it pre­pares for a reelec­tion campaign.

A pair of fed­eral judges are hint­ing that they may strike down part of the 900-plus–page law. Earlier this week, the admin­is­tra­tion reminded one of the judges he only had to strike down part of the law if he ruled that some por­tion of the law was uncon­sti­tu­tional. The administration’s lawyers help­fully sug­gested that if the mandatory-​​coverage pro­vi­sion had to go, the guaranteed-​​issue and community-​​rating pro­vi­sions would too, but not the pro­vi­sions like those for “improv­ing women’s health” and “improv[ing] demen­tia and abuse pre­ven­tion train­ing.” (More on that later.)

The health-​​care law has proved unpop­u­lar. Republicans and Democrats both think that it was key in the GOP’s vic­tory in the House and win­ning a larger pres­ence in the Senate. That’s why Republicans are falling over them­selves to repeal some or all of the act when the new mem­bers take their seats in January.

Facing down law­suits from 20 states—plus more when newly-​​elected offi­cials opposed to the health-​​care law are sworn in—can’t be an excit­ing prospect for the admin­is­tra­tion. Although it will surely empha­size the law’s more-​​popular pro­vi­sions, this is not a sub­ject that the admin­is­tra­tion needs in the head­lines as it crafts its argu­ment that it deserves another 4 years.

Corporations are people too. (Sort of.)

Make Shadowy Campaign Money the Issue This Election.”  The White House is “stepp[ing] up attacks on what it describe[s] as a tidal wave of secret out­side money.” Corporations, freed by the Supreme Court’s Citizens United deci­sion, are mak­ing large, unre­ported dona­tions to “char­i­ties” like Karl Rove’s Crossroads GPS and Norm Coleman’s American Action Network. Public inter­est groups like the Democracy 21 and the Campaign Legal Center are wring­ing their hands over the money pour­ing into the sys­tem, fear­ing that it will cor­rupt the process.

Now, I under­stand the rea­sons for con­cern. No rea­son­able per­son wants bribery or quid pro quos in the polit­i­cal process. But I’m here to stand for what is appar­ently a remark­able propo­si­tion: cor­po­ra­tions are peo­ple too. Or rather, cor­po­ra­tions are groups of peo­ple with jus­ti­fi­able inter­ests and deserve to be heard and to par­tic­i­pate in the polit­i­cal process.

Corporations are taxed, they are sub­ject to laws and reg­u­la­tions, and they are inde­pen­dently liable for their actions. In short, they are legal actors, just as much as you. And, like­wise, they are affected by the polit­i­cal process, just as much as you.

Remember, the injus­tice of “Taxation Without Representation” was a key moti­va­tion behind the American Revolution. If the abil­ity to suf­fer detri­ment with­out a say in the process jus­ti­fies rev­o­lu­tion, then shouldn’t cor­po­ra­tions get at least some say in the polit­i­cal process? If a coal com­pany is being tar­geted by energy leg­is­la­tion, shouldn’t it be able to raise its col­lec­tive head and sug­gest that maybe its interests—and its own­ers’, employ­ees’, and cus­tomers’ interersts—be taken into con­sid­er­a­tion? Or should we exclude the enti­ties with the most exper­tise from the polit­i­cal process, ensur­ing that we don’t under­stand what the leg­is­la­tion is going to do to the affected industry?

I’m not sug­gest­ing that cor­po­ra­tions have the right to vote or that they should be treated the same as nat­ural per­sons. I am not even sug­gest­ing that cor­po­ra­tions shouldn’t be treated dif­fer­ently from nat­ural cit­i­zens when it comes to cam­paign finance reg­u­la­tions. But the work­ing assump­tion among many com­men­ta­tors that cor­po­ra­tions have no legit­i­mate inter­est in the polit­i­cal process, and par­tic­u­larly not in the leg­is­la­tion that attempts to tar­get them. That’s remarkable.