Posted by: captainfalcon | June 24, 2011

Pseudo-economics question for the Lure

The most interesting debate I’ve come across about whether to give interpretive weight to Presidential signing statements takes place within the framework of Positive Political Theory (PPT). I briefly summarize PPT (albeit leaving a number of its basic presuppositions implicit) before asking my question.

Summary

PPT’s view is that the intended effect of a statute in circumstance C is the effect its enacting coalition bargained for. Assuming that a statute’s language reliably reflects the legislative bargain, that intended effect can often be gleaned from the statute’s text. This is obviously not the case where the text is vague or ambiguous. There, if you want to ascertain the intended effect of the statute, you should look to other materials that reliably reflect the bargain struck by the enacting coalition.

PPT tries to identify such materials by ascertaining (a) whose statements, if reliable, are likely to express what was bargained for, and (b) when are their statements reliable? The answer to (a) is pivotal actors and agents of the coalition. The answer to (b), trivially, is when the costs of misrepresentation outweigh the benefits [and also, implicitly, when the speaker knows what’s been bargained for].

Agents are self explanatory. The pivotal actors are those without whose support the bill is less likely to pass. These will include (a) people who occupy “veto gates” [who e.g. can kill a bill in Committee or Subcommittee] and (b) the median voter [whose support is necessary for the bill to pass, and is not guaranteed]. Reliable representations by pivotal actors about their understanding of the legislative bargain are relevant to what the bargain actually is because pivotal actors have the power to thwart (or make more unlikely) the bargain. Interpretations contrary to their understanding a fortiori are less likely to be part of the bargain (and vice versa).

An announcement about a statute’s intended effect is more likely to be reliable the more costly lying is. For example, assuming the enacting coalition wants its bargain brought up for vote, when a subset of the enacting coalition is acting in the capacity as agent for the enacting coalition the coalition has a strong incentive to prevent the agent from misrepresenting its bargain. It should thus manifest a disposition to punish the agent for lying, which increases the costs of doing so. Hence, representations by a bill’s floor manager are likely to be reliable.

Question

That’s the summary. Turn, now, to the debate over Presidential signing statements. All sides to the debate agree that the President is a pivotal member of the enacting coalition in all cases except where his veto can be overridden. Even there, assuming overriding a veto is costly, the President is pivotal. A reliable expression of his understanding of the legislative bargain is thus probative of what the bargain actually is. The debate is over whether signing statements are reliable.

McNollGast says no: “Presidential signing statements … cannot be rejected or overturned by Congress, and are not negotiated with members of the legislative coalition. Hence the potential for unchecked opportunistic behavior by the president is great. Presidents cannot easily be held accountable for these statements by other coalition members. We therefore expect presidents to act strategically in formulating signing statements.”

Bradley and Posner say yes: “[T]he president’s statements in general are more credible than those of members of Congress because the president is a more significant and visible figure, and he is more of a repeat player; thus, he has more to lose if he loses credibility. A president whose signing statement violates legislative bargains will have more trouble obtaining Congress’s cooperation later on. He also might earn the distrust of other political actors and voters.”

I am inclined to think McNollGast gets the better of the debate, but I’m not sure if I missing something. Here are my reasons.

First, whereas congressional members of an enacting coalition have an array of tools to punish other congressional members of the enacting coalition that misrepresent the legislative bargain to the enacting coalition’s deficit, virtually the only punishment they can inflict on the president is declining to do business with him (or doing business with him warily). However, while it is true that the President is a repeat player with Congress, he is not necessarily a repeat player with the enacting coalition, so it will rarely have the opportunity to impose costs on the President.

Second, as long as they remain extraordinary devices opportunistic signing statements can be explained away as contextual and anomalous. Other possible enacting coalitions are thus not as likely to perceive in a particular opportunistic use of the signing statement a lesson for them to learn. Therefore, the President’s relationships with future enacting coalitions won’t necessarily suffer.

Finally, enacting coalitions have to play ball with the President. Unless his signing statements routinely make it so that the bargain is worse (from the enacting coalition’s perspective) than the status quo ante [and that would be a pretty poorly written statute!], enacting coalitions will be willing to accept opportunistic signing statements as a cost of doing business. They might try to mitigate the costs of signing statements – e.g. by being particularly clear and comprehensive where they think the President might try to issue an opportunistic signing statement, or by including more general language “naming the problem” of a potential signing statement – but it is unlikely they are willing or able to impose on the President costs that outweigh the benefits of opportunistic signing statements, and so positively discourage their use. [This is particularly so because signing statements take place get issued after the end of the legislative process, when the enacting coalition has lost its leverage!]

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