The Volokh Conspiracy

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Law & Government

"The Neglected Value of Effective Government," by Prof. Rick Pildes (NYU)

"How law and policy have undermined the ability of government to deliver both large-scale policies and a range of public goods."


I saw Prof. Pildes's forthcoming article, and asked him if he might guest-blog about it; he kindly agreed, and passed along the following:

I thank Eugene for inviting me to write about a new essay of mine entitled "The Neglected Value of Effective Government."

A central challenge, and threat, to democracies throughout the West in recent years is the perceived failure of democratic governments to deliver effectively on the issues their members care most about. When democratic governments cannot do so, that failure can lead to distrust, alienation, withdrawal, anger, and resentment. Even worse, it can fuel desires for a strongman figure who will supposedly cut through the dysfunction and deliver when democratic governments have failed to do so. Many of these manifestations of dissatisfaction are already visible in the United States.

Despite the critical importance of delivering effective government, democratic and legal theory have given too little attention and weight to this value. Much of democratic theory and legal scholarship on democracy focuses on values such as political equality, fair representation, democratic deliberation, political participation, and individual rights, among other values. This focus is largely on the input side to democracy. But less weight is given to the output side: the capacity of government to deliver effectively on the issues citizens care about most urgently.

I have been writing about the decline of effective government, focused initially on the United States, since 2014. In this essay, I aim to bring greater affirmative attention to the imperative of effective government in our thinking about the design of democratic institutions and processes. My approach is to identify and highlight tensions that arise between effective government and other important democratic values. These tensions or tradeoffs arise at both the macro-level of democratic institutional design and the more routine level of matters such as the administration of public policy.

The article focuses on five areas of tension or tradeoffs between effective government and other democratic values. These other democratic values are themselves important ones; the question I raise is whether we need to recalibrate the balance between them and the importance of enabling effective governance.

[1.] Political accountability versus effective government. Political accountability is obviously of central democratic importance. But what's less recognized is that excessive accountability can hamper the ability to deliver effective government. When the Constitution was drafted, there was a strong push to require annual elections to the House; it is easy to see today how much more difficult governing would be were House elections held every year.

Indeed, even the two-year term is an outlier among democracies: most parliaments are elected for four or five years. The rate at which elections are required is a window into the larger window into whether other forms of political accountability come at too great a prices to the capacity of government to function effectively.

[2.] Political equality versus effective government. One area in which this tension arises is campaign finance. Desire for a more equal system of campaign financing is understandable. But when the McCain-Feingold law, in the name of political equality, strictly limited the sources and amounts that could be donated to political parties, it triggered a massive rise in outside spending by groups and individuals; Citizens United added to this flow. But the flow of money away from parties to other actors has made governing far more difficult.

Today, in the name of political equality, many reformers support government providing matching funds for small-donor contributions. Yet small donors fuel political polarization and extremism; matching small donations would further exacerbate factionalism and paralysis in Congress. Traditional forms of public financing better advance political equality without further fueling polarization.

[3.] Open government versus effective government. A distinction exists between transparency of outcomes, in which decision-makers must explain the justifications for the choices they've made, and transparency of process, in which the steps along the way to that outcome are required to be public. In the 1970s, policy shifted strongly to transparency-of-process requirements, including for Congress. Yet as numerous studies document, and those involved in the legislative process confirm, this shift to transparency of process have contributed to Congress' inability to compromise and deliver legislation. An American Political Science Association (APSA) task force from 2012, designed to analyze the ever-growing paralysis and dysfunctionality of Congress, concluded that "gridlock in the American Congress has been exacerbated by the 'sunshine laws' that opened up committee deliberation to the public but also to lobbyists and other special interests."

Indeed, many studies find that excessive transparency requirements have been ineffective or even counterproductive to the instrumental goals they were thought to serve. Contrary to the assertion that transparency would promote high-quality deliberation, the APSA study concluded that "the empirical evidence on the deliberative benefits of closed-door interactions [compared to public ones] seems incontrovertible."

[4.] "Fair" representation versus effective government. Many ways of designing the system of political representation exist. Recently, academic reformers have proposed that Congress permit or require states to shift to electing members of Congress from multi-member districts. These districts would be designed to elect five members, which reformers believe would create a Congress with five or six political parties. In the view of these reformers, this would create a fairer system of representation than our two party system, along with having other benefits.

I suggest that such a change would come at too great a cost to the output side of democracy: it would make the legislative process even more dysfunctional. Drawing on the recent experience of multi-party democracies in Europe, I argue that the need to cobble together majority coalitions, issue by issue, in a six-party Congress would make it all the more difficult to generate public policy on urgent issues.

[5.] Process and participation versus effective government. This set of tradeoffs applies particularly to the provision of public goods, with particularly implications for the clean-energy revolution. Participation, voice, and appropriate process are important democratic values, which can also lead to better public projects. But the cost and amount of time it now takes to provide various public goods-airports, subway lines, railroads, transmission lines for clean power-has become so great that the loss in social welfare is high, along with creating perceptions that government is incompetent. This is another area in which we should re-examine the relationship between the values of process and participation and the importance of delivering effective government.


Taken as a whole, the point of these examples is to bring attention to the value and importance of state capacity to deliver effectively. You don't have to agree with all these examples to see the problems that at least some of them raise.

In re-organizing and synthesizing under the general framework of effective governance several discrete subject areas I and other scholars have engaged, my aim is to spur greater attention among legal scholars and democratic theorists on the outputs of democracy–on the delivery of effective government—in work on democracy. Viewing current arrangements and proposed reforms through the lens of effective government opens up new directions for scholarship on democracy. But the first step is to recognize that the failure to deliver effective government is roiling most democracies today, and that if democracies cannot overcome that challenge, popular frustration, anger, distrust, or worse, will continue to grow.