The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Jones Act and the perils of political ignorance
The previously little-known Jones Act has been in the news recently because its restrictions on the use of foreign ships to carry cargo between American ports is making Puerto Rico's recovery from Hurricane Maria even more difficult than it might be otherwise. Enacted in 1920, the law mandates that any goods shipped between two American ports must be carried by American ships. As a result, Americans pay greatly inflated prices for a wide range of shipped goods. The Act is particularly burdensome for island jurisdictions, such as Puerto Rico and Hawaii, which must bring in a very high proportion of the goods they need by sea. The costs the Jones Act inflicts on consumers and the US economy as a whole vastly outweigh the benefits it creates for US shipping interests. Obviously, the pain the Act inflicts is even greater at a time when Puerto Rico desperately needs a wide range of supplies for reconstruction and recovery.
In response to pleas from across the political spectrum, President Trump reversed his earlier position and agreed to waive the Jones Act for Puerto Rico, as he had earlier for areas of Texas and Florida hit by recent hurricanes. But the Puerto Rico waiver applies for only ten days, which is nowhere near enough, since the recovery process is likely to take many months.
All of this raises the question of why the Jones Act has persisted for over a century, and why—even now—Congress has not acted to repeal it. The standard explanation offered by economists and political scientists focuses on the disproportionate power of small, well-organized interest groups—in this case, the American shippers who benefit from the suppression of foreign competition.
Interest group lobbying surely is an important part of the story. But it does not fully explain how such a small group can prevail over the vast majority of Americans who are harmed by the Act. If they wanted to, voters could easily force Congress to abolish the Jones Act simply by committing to vote out incumbents who refuse to support repeal. They need not even vote for candidates of the opposing party to do so. They could instead support primary challengers who oppose the Jones Act, but otherwise vote the same way as the incumbent. If opposing the Jones Act were seen as a promising path to electoral success, plenty of ambitious politicians would be happy to take it?
Why doesn't this happen? Most likely because the vast majority of voters have never even heard of the Jones Act, much less understand the costs it imposes on the economy. The small, well-organized shipping interests that benefit from it do know, however, and lobby accordingly. Politicians who oppose the Jones Act are unlikely to attract much support from the general public (who probably will not even notice their stance), but would antagonize the shippers. Thus, only a few are willing to take the risk, such as Arizona Senator John McCain, a longtime advocate of repeal.
We do not know for sure whether the general public is ignorant of the Jones Act. To my knowledge, there is almost no survey data on the question, in part because pollsters rarely ask about such comparatively obscure legislation. They generally assume that voters are so unlikely to know about it, that it is not worth asking. But widespread ignorance about the Jones Act is a safe assumption, given that most of the public is ignorant of basic facts about far more prominent policies (such as the Affordable Care Act), and even the structure of government. If the majority of the public cannot even name the three branches of the federal government and does not realize that Medicare and Social Security are among the largest federal programs, it is highly likely very few know anything about the Jones Act.
A recent survey found that almost half of Americans do not even realize that Puerto Ricans are American citizens. This level of ignorance about Puerto Rico suggests that it is also unlikely that very many knew how much the island suffers from US-imposed shipping restrictions.
The Jones Act is just one of many examples of how what the voters don't know about politics can hurt them. Because of public ignorance, organized interest groups have been able to use the Jones Act to fleece the public without the latter catching on.
It is possible that the wave of publicity generated by the Puerto Rico crisis will finally change that. The political pressure that led Trump to waive the Jones Act for ten days might grow to the point where Congress and the president push through much broader reforms. But I would not hold my breath. The Puerto Rico story competes for attention with many others, and it is very possible that the public will soon refocus on something else, and even that many still will not notice the Jones Act issue in the first place.
The enormous size, scope, and complexity of modern government magnifies opportunities for interest groups to push through harmful policies without the general public noticing what is going. Most voters do not have the time and attention span to keep track of more than a few government policies, if even that many.
Public ignorance about the Jones Act and other such issues is not an indication that voters are stupid. To the contrary, widespread political ignorance is mostly the result of perfectly rational behavior. Learning about the Jones Act requires time and effort that could instead be devoted to other things. If a voter does study it, the chance that his or her better-informed vote will change the outcome of an election is infinitesimally small. Thus, it makes little sense to devote much effort to studying up on such issues unless you find it interesting, or have some other reason to do so, besides becoming a better voter.
Unfortunately, this is an area where individually rational behavior leads to bad collective outcomes. It does not matter if any one voter is ignorant. But if the majority of the entire electorate is, that facilitates abuses like the Jones Act. The plight of Puerto Rico is yet another example of this much broader problem that plagues modern democracy.
Political ignorance is very difficult to overcome. There are a number of possible strategies for reducing the danger, but none are easy to implement. Still, we should at least recognize the magnitude of the problem, and start taking it seriously.