Perspectives and Paradigms

One of my favorite podcasts is the Talking Politics podcast, and I’ve recently begun relistening to its spinoff series: History of Ideas. In the episode on Tocqueville’s Democracy in America, the host (David Runciman) has a wonderful line: “One of the things that makes Tocqueville such an interesting writer about politics is that he can find a puzzle in almost any solution to a question, and he can find a solution in almost any puzzle.”

Finding a puzzle in accepted solutions and solutions in difficult puzzles — that’s, in some ways, the heart of the academic endeavor. Academia is about discomfiting us about our explanations of the world, about forcing us to ask questions when we otherwise would accept the state of the world as “just the way things are.” But I want to spend some time thinking about what questions we ask and how they relate to particular worldviews. To do so, I thought I’d write about two specific academic topics/discussions: one on regulatory capture, and the other on the Supreme Court’s 2005 decision in Gonzales v. Raich.

Capture theory has been on my mind for the last few weeks since it’s integral to studies of regulation. The core of the theory is that interest groups (especially industry groups) see regulation as a tool for them to gain competitive advantages. For example, suppose you own a firm, and you have a huge (bigly! big league?) team of lawyers — better than any of your competitors. If the regulatory agency for your industry promulgates a rule that is highly legalistic and complex, your company might adapt better than any of your competitors. The free market, remember, is cut-throat; you want to use any advantage you possibly can to edge out your competitors. Under such circumstances, you might actually want more regulation, since it has asymmetric effects on the market. In other words, you seek to manipulate regulation to extract regulatory rents (you engage in “rent-seeking” behavior) because you believe regulation can help stack the market in your favor. This is a simplified version of the theory of capture that George Stigler made famous in the 1970s — that regulation at its origin is generally created to benefit certain industry groups at the expense of others. (An alternative theory, tracing to Marver Bernstein, focuses on the regulatory “life-cycle” and basically says that over time, regulatory agencies that were once zealously enforcing laws against industry groups will become more dependent on industry as the public spotlight/congressional interest dies down.)

Once we have a name for this phenomenon, it’s easy to see capture everywhere. Failed regulation in the face of disaster or highly strenuous regulation can both be seen products of capture: either interest groups won out, buried themselves in the regulatory state, and lowered, say, safety standards; or a company that was so successful at raising its standards captured regulation to render its heightened standard the minimum under law so as to erect barriers of entry to the market.

It’s a compelling story. For one, it fits well with the age-old American skepticism of bureaucracy and big government: of course the government is prone to special interest lobbying, because Washington is (literally and figuratively) a swamp, filled with revolving doors and self-dealing. For two, it’s grounded on pretty reasonable assumptions: you purportedly only need to believe that industries are self-interested, maximizers of that self-interest, and well-informed and able to learn from experience. Companies, in other words, don’t even have to be nefarious actors, creating cartels to try to become the puppet-masters of government. Capturing regulation is the rational thing to do. So maybe it’s not surprising that, in 2014, Daniel Carpenter and David Moss remarked on the concept: “the essential idea that policymakers are for sale, and that regulatory policy is largely purchased by those most interested and able to buy it, remains central to the literature.” Ever since Stigler, we’ve been talking about capture.

Note that the capture perspective has really, really important consequences. The theory is inherently skeptical of regulation; in any governmental regulation, we can sense the specter of interest-group rent-seeking. The only solution, then, is deregulation. Enable the market to work on its own, and we can structure competition to ensure fairness. For all forms of traditional command-and-control regulation are either the product of interest group lobbying or will eventually become captured by them.

The second example I want to talk about is an exchange I had with my constitutionalism professor regarding Gonzales v. Raich. (I’ll note that this happened three years ago, so some details might be fuzzy.) Raich was near the end in a line of Commerce Clause cases we read in constitutionalism. The Commerce Clause gives to Congress the authority to regulate commerce “among the several States”; it and the Necessary and Proper Clause (Congress may “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”) are the textual hook for many of the federal government’s contemporary powers. In essence, the Court, from the Founding through the New Deal, took a relatively parsimonious understanding of the Commerce Clause, drawing various distinctions (e.g., between “commerce” and “manufacturing”) in order to strike down various federal laws. The New Deal Court took a much broader understanding of the Commerce Clause, interpreting it to allow Congress the power to regulate anything so long as Congress could demonstrate that the action, in the aggregate, could have substantial effects on interstate commerce. In the late twentieth century, the Court issued two opinions that pushed back on this very capacious reading of the Commerce Clause. But in Raich, it seemed to do an about-face, upholding the application of the Controlled Substances Act’s ban on marijuana to an individual who was growing medical marijuana (legal in California at the time) for her own consumption as a valid exercise of the Commerce Clause authority. Admittedly, it’s a broad reading of an authority that gives Congress power over interstate commerce, since the marijuana was homegrown and -consumed (i.e., not interstate) and was never sold (i.e., not commerce).

Raich was a 6-3 decision, where two conservative justices (Justices Kennedy and Scalia) who had previously seemed intent on limiting Congress’s Commerce Clause power upheld the Controlled Substances Act’s application. Justice Scalia wrote a concurring opinion that explained his rationale based on the Necessary and Proper Clause. At the time, I argued in class that this reading could, in fact, be reconciled with Justice Scalia’s previous votes ( the cases where he had voted to limit the Commerce Clause authority). My professor’s response was that I should put on a more cynical hat and think about why Justice Scalia (an admittedly conservative guy) might be opposed to striking down a ban on marijuana use. The two opposing interpretations boiled down to a kind of Rorschach test; there wasn’t a way for either of us to prove why Justice Scalia voted the way he did, and so we were left at an impasse based on what kinds of arguments we respectively thought were credible.

In both of these examples — regulatory capture and Raich — I think we’re seeing the effect that disciplinary-political perspectives have on empirical analysis. In the capture example, we don’t have to see regulators as vulnerable to rent-seeking behavior. Indeed, one might reasonably (perhaps naively) believe that regulators are actually well-trained experts who are just doing their jobs, insulated from industry capture by virtue of their expertise and understanding of public policy. Stigler’s theory opposed that idea (the “public interest” theory of regulation), but it’s not immediately obvious to me that Stigler is correct. It seems to me that it’s an important empirical question about when an agency is susceptible to capture. One might look to, for example, ethics in government rules and try to trace the means through which industry could seek to permeate the agency. One might also look to forms of oversight — say, does Congress pay attention to the bureaucracy? what about “public interest” organizations? — and ask whether those buffer the bureaucracy from industry demands.

Moreover, we could also try to explain regulation without reference to the behavior of the regulatees. For example, consider deregulation under Reagan and Thatcher. Stigler’s theory would say that industry wants regulation, so it’s hard to square with that broad deregulation in the 1980s. Instead, we might attribute deregulation to certain ideas that were in vogue at the time (perhaps specifically, Stigler’s theory and public-choice theories more broadly, which provided the intellectual justifications for deregulation).

I will freely admit that I’m partial to this ideational explanation, especially in the deregulation context. But that’s because I was taught by a professor whose focus was on how ideas come to have political consequences — how intellectual capital is intentionally cultivated in order to spur changes in our politics by legitimizing certain arguments. Carpenter and Moss also nod at this theory, describing “cultural capture” as where firms, “through the shaping of assumptions, lenses, and vocabularies,” can thereby mold the realm of the possible. The point, though, is that the perspective with which you come at the problem — how you formulate the puzzle — is intimately linked to the answers you come to.

The same is true, I think, with the Scalia opinion in Raich. From a legal perspective, the law operates according to a specific grammar — we think of certain criteria (text, history, precedent, context, tradition, logic, purpose) as not only legitimate, but exclusively so. It would be per se inappropriate to render a judgment based on one’s political beliefs. But more than that, when focusing on legal opinions, I think it’s easy to get trapped in the belief that those criteria form the realm of the possible; it becomes unthinkable to consider that a jurist might make decisions for other reasons unless you have very strong reasons (e.g., the opinion on its face lacks coherence). But political scientists don’t speak in the language of the law, and their discipline gives them a different grammar for reasoning. The internal coherence of legal reasoning matters less than questions of power, its distribution, and its deployment when concentrated in certain institutions or actors. In that sense, my professor and I were speaking in rather different languages.

With both capture and the Raich debate, it’s clear that different sides can ground their convictions in empirical analysis. It’s also clear, though, that those debates are very, very difficult to conclude, for they are plagued by issues such as selection effects (what are the class of “regulations” that we need to study to assess the prevalence of capture?) or inherent ambiguities in behavioralism (that is, our inability to infer different internal thought processes solely from observable data, e.g., court opinions or oral argument transcripts). I’m left reminded of a nice Bickel quote: “No answer is what the wrong question begets.”

In the end, I think these theories are better understood as heuristics that bias, and thus form, our judgment (the Court decides something in favor of Republicans -> it must be partisan; a regulatory failure occurs -> it must be due to capture) than models that we, as detached observers, test with rigorous empirical analysis. The power of these ideas, in other words, inheres less in what they predict about the world and more in how they shape our perceptions of the world — an effect that is largely independent of their predictive power. (I had a conversation yesterday about weather predictions, which I think illustrates the same point: a 10% chance of rain isn’t meaningful to most observers, in the sense that the existence of rain, or lack thereof, can’t be a rebuttal to that prediction. So even if the prediction is systematically and wildly off, we still probably live our lives according to the prediction. But moreover, because our experiences of the weather are fairly limited, we can basically always justify the prediction as correct even as our individual experiences negate it; if the weather forecaster tells me there’s a 90% chance of rain, but it looks sunny in my area, then I’d probably just think that there are other parts of town that are likely raining. In that sense, the prediction constructs our sense of reality even if we empirically disagree.)

I want to be careful not to slide into nihilism when it comes to social science. I am, after all, at a university exclusively dedicated to the social sciences! I think these reflections, and even a few weeks at LSE, are helping me understand better the utility of social science. Social science, I think, can help us understand the mechanisms by which a theory is predictive. In other words, we might be able to answer a question such as: when have we seen Stiglerian capture before, and how does Stiglerian capture come about? But my sense is that social scientific methods have a lot of difficulty in answering the (perhaps more useful) question: how often is regulation captured, and how worried should we be about regulatory capture? Social scientific theories help us see patterns, but the work of quantifying the prevalence of those patterns is troublesome at best. Moreover, we need to be cautious about how those theories direct our attention toward certain patterns and, in doing so, make it more likely that we overemphasize the importance of those patterns.

I think a similar point is true regarding the law-politics divide. My sense is that when you surround yourself with people who speak in the language of lawyers — where the way a question is presented or what the legal precedents say matter — then you can unwittingly assume that the internal logic of the law is the exclusive action at hand. The opposite, I think, is true of if you surround yourself with political scientists, for whom the internal logic of the law does not matter. The answer is probably somewhere in the middle — the legal logic does matter in some cases but not in others. The difficult question is knowing when a particular discipline’s perspective is most accurate. That, to me, is the crucial question, even as I think academia teaches us to skip it in favor of applying a particular discipline’s perspective to a phenomenon. And how do we answer that question? ¯\_(ツ)_/¯

* * * * *

Rose: On Saturday, one of my flatmates and I made the trek to Greenwich. (Like, that Greenwich — of GMT fame.) It was a seven-mile walk each way, and we saw a lot of cool aspects of London: the Tower of London (!!!!), some really cool architecture (some of the skyscrapers were very trippy, in the sense that their curvature made you feel very off-balanced), a tunnel underneath the Thames, ancient buildings that are now pubs (???), a church founded in 675 CE, and so on. It really was a cool experience, although my legs were in lots of pain.

From the Royal Observatory

Weird but beautiful buildings!

The curvature was bizarre

This building ... is a pub

Tunnel Under the Thames

London from Greenwich

Intriguing Murals

This door o_o

The Tower and City of London

City Hall, feat. Us

A Church Founded in 675 CE

Agincourt!

The Tower of London!!!!

Old Building, feat. New Ones

Bud: I went into office hours with one of my professors last Friday, and my mind basically exploded thinking about potential ideas for my research with my old Pomona politics professors. A lot of my readings — e.g., on theories of institutional change, agency capture, measuring agency independence, and so on — all seem relatively relevant. But he also gave me the helpful frame of thinking about agency audience and, in particular, the undertheorized causal mechanisms by which an agency changes its audience, which seems particularly relevant to our research on the Office of Legal Counsel if our argument is that it’s shifted from a more quasi-judicial posture into a pro-presidential advocacy role. I’ve been hoping to sit down and dig into that research (I was actually hoping to do that with this time, but instead, I’ve managed to spend the entire morning writing this blog post!), but my hope is that I’ll begin to more systematically set aside time for that really interesting work.

Thorn: I’m really starting to feel the tradeoff between exploring London and keeping up with my academic readings — losing all of Saturday made it fairly difficult to keep up with the readings, and I admit I didn’t read a case for Competition Law as closely as I should have (a pity, because it seemed like a really interesting case, albeit very long and with a complex set of facts!). Same with this blog — I’m really inefficient at writing, and so there’s definitely a tradeoff between writing blog posts that (I hope) are somewhat coherent versus exploring/keeping up with academic work.

Possible future topics:

* Again because I’ve been relistening to the History of Ideas, I want to compare Gandhi and Weber’s understanding of a good politician (perhaps locating their disagreement in the figure of Lincoln — and revisiting the Lincoln speech I began this blog with!).

* A debate in competition law about criminalizing so-called “hardcore” cartel conduct, and my confusions about how we ought to think about criminalization from a legal/moral theory perspective versus the on-the-ground reality of how the criminal law is used.

* Susan Wolf’s “Moral Saints” essay. A friend had sent this essay to me a few years ago, and I had a recent conversation with a different friend touching on similar themes. In short (and related to the second topic), I wonder about the extent to which principled decisionmaking is, in fact, the right way to live a moral life. At a certain point, we draw certain lines between moral and immoral conduct (for example, what do you have to do to live an environmentally friendly lifestyle?), and it’s not clear to me that we can ascertain that line with any meaningful principle. So are we just supposed to “muddle through” (which assumes we’re leading a fundamentally moral — or at least, morally defensible — life to begin with)?

Sorry for the length of this post. (I wonder if these posts will just get progressively longer...)

As a justification for my verbosity, please refer to this gif from Mean Girls, one of the greatest movies of all time: