Tag Archives: Adverse Selection

When one side of a transaction knows more than the other, the market — or the institution — tends to attract the wrong participants and repel the right ones. Akerlof’s lemons, Gresham’s law, the politics of scandal, the design of oversight mechanisms. Posts here are about the structural consequences of asymmetric information, particularly when institutions fail to account for it.

Donation Discrimination Denotes Deliverance of Democracy

Posted on by

A recent paper by Joshua Kalla & David Broockman has attracted some attention (for example, in this Washington Post story, Monkey Cage post, and this excellent, reflective post on Mischiefs of Faction by Jennifer Victor).  In a nutshell, the paper reports the results of a well-designed field experiment that provides evidence that donations to a Member of Congress “open doors” in the sense that being a donor promotes access to more high ranking officials in the Member’s staff, including possibly the Member of Congress himself or herself.

I am not going to critique the study. Jennifer does that well in several ways.  Unrelatedly, I am also not going to doubt (or cast doubt upon) the results.  Rather, doing what I do, I am going to make a quick point about the question at hand.

We have a situation in which a (quasi-)monopolist (the Member) has a “good” to sell (access/face time).  Simply put, let’s suppose this good is valuable to some people and, similarly, that donations are valuable to the Member.  Then, it follows from a classic corner of social science known as price discrimination that the Member (in self-interested terms) should privilege those who are willing to pay for it.  That is, those who want access most will be willing to pay more than those want access less, and an efficient means to allocate the scarce/costly resource of access is to give to those who are most willing to pay.  Is this normatively disturbing?  Hell, yes.  Is it troubling even in everyman’s language?  Oh, for sure.  Is it inevitable?  Well, yes, that too.

Here’s another, more methods-meets-theory take on it.  Suppose that a Member imposed a policy where donations did not offer an advantage in obtaining access.   Now, think about your position as a constituent/citizen seeking access.

What would you do?

Let’s suppose that you like money. We’ve already supposed you seek access.  Now, finally, put those two together in the face of the hypothetical Member who does not reward donations with preferential access. … You should be very happy as you realize that you can have your cake and eat it, too, as you keep your money and waltz into the Member’s office, swilling sherry and talking Grand Strategy into the wee hours.

The summary of this hypothetical is this: if you believe that is plausible (1) that members don’t reward donations with preferential access and (2) that potential donors like money, then the predicted level of donations to any members is zero.[1]

We know that people give money to campaigns.  We also know or at least strongly believe that people expect something for their money.  Putting these together, I will simply say that the conjunction of these makes me feel better, not worse, about our democratic system.

Paraphrasing at least an apocryphal version of Churchill, democracy is better than every system we’ve ever tried, but it’s still only capable of delivering second-best…at best.  The Kalla & Broockman results, as clean as a whistle, further confirm my belief in this.

 

_________

[1] This is a blog post, and I’ve been away for a while for many reasons, including that these take me a lot of time.  Accordingly, I’ll simply note that other motivations for giving (e.g., financing reelection campaigns in a purely instrumental fashion) can be accomplished by other routes in the Federal campaign finance system (party committees, other PACs, etc., and unless you are really focused on a given Member’s reelection (but why, except for access?), these routes have transaction costs/flexibility advantages over direct giving to a single Member’s campaign).

CIA? See, I Am Policy Relevant

Posted on by

As most things I encounter, This New York Times story got me to thinking about, well, me.  Specifically, the article—discussing the Senate’s attempts to oversee the CIA’s interrogation programs—touches upon two strands of my research that, at first glance, might appear related only in that they both use mathematical models to analyze and characterize political phenomena.  One of these strands revolves around the use and acquisition of information in political institutions (specifically, but not exclusively, bureaucratic agencies).  The second focuses on how one might discriminate between legitimate political procedures and illegitimate ones.

Information and Oversight: Ex Ante vs. Ex Post Incentives. One story at the heart of the article revolves around the existence of a classified internal CIA report that members of the Senate Intelligence Committee would like to see.  The central question here is whether the internal report confirms the Senate’s (still classified) own report and/or contradicts the subsequent disclosures/admissions/justifications offered by the CIA to the Senate Intelligence Committee.

I have written, with Sean Gailmard, several articles and working papers (e.g., here, here, here, and here) and a book, Learning While Governing, that examine in various settings the incentives for individuals within hierarchical organizations to acquire, use, and honestly report information to their superiors.[1]

While I am sure you want to read each of these in their entirety, with the proper “SPOILER ALERT” I can summarize a principal thread linking the theories as follows:

The incentive to collect, use, and share information in a faithful way depends on expectations about who will subsequently get the information and how they will use it.

In terms of the Senate Intelligence Committee’s oversight efforts, the implication of this is as follows:

To the degree that the information revealed and shared within the CIA in writing its internal report is potentially used by the Senate to punish the CIA (in whatever form), successfully extracting the report may hinder the CIA’s efforts to internally collect and share information in the future.

Of course, we are not the first to make this point,[2] but it is often forgotten.  Put another way, attempts to keep the CIA’s internal report hidden need not indicate nefarious motives.  Rather, there is a coherent logic that justifies a lack of transparency, or stonewalling, in somewhat ironic pursuit of information in the future.[3]

Colloquially understood, “oversight” is an ex post phenomenon (it occurs after the actions of interest).  But game theoretic institutional analysis helps illustrate and remind us that this ex post procedure can have ex ante effects (individuals may change their behavior—sometimes in unexpected, or “perverse,” ways—in anticipation of it).

Legitimacy and Oversight. In line with the Senate Intelligence Committee’s pursuit of the CIA internal report, some Senators are also pursuing the Department of Justice’s internal classified memos that supposedly provide a legal rationale that justifies some of the interrogation techniques in question.  Quoting from the end of the article,

Much of Tuesday’s hearing was consumed by a debate about whether the White House should be forced to share Justice Department legal memos.

Under polite but persistent questioning by members of both parties, Ms. Krass repeatedly said that while the two congressional intelligence committees need to “fully understand” the legal basis for C.I.A. activities, they were not entitled to see the Justice Department memos that provide the legal blueprint for secret programs.

The opinions “represent pre-decisional, confidential legal advice that has been provided,” she said, adding that the confidentiality of the legal advice was necessary to allow a “full and frank discussion amongst clients and policy makers and their lawyers within the executive branch.”

Senator Feinstein appeared unmoved. “Unless we know the administration’s basis for sanctioning a program, it is very hard to oversee it,” she said.

In an article and a forthcoming book, Social Choice and Legitimacy: The Possibilities of Impossibility, Maggie Penn and I have tackled the question of when a government policy is legitimate, which colloquially means that it is consistent with an underlying set of principles or criteria (e.g., fairness, efficiency, equality, etc.).  The argument is social choice theoretic, and boils down to the following.

A policy is legitimate if one can construct a sequence of decisions that justify the policy in the sense that no earlier, intervening decision is strictly better than the final policy, and every unchosen policy that is arguably better than the final policy is itself inferior to one or more of the intervening decisions in the sequence that justifies the final policy.

Informally, the theory provides a precise characterization of justifying a choice through providing (or accompanying the decision with) other decisions that can serve as counter-objections to any alternative choice that one might propose to replace the final choice.

A direct implication of Arrow’s impossibility theorem is that there may in general be multiple legitimate decisions.  However, it is generally the case that there are many illegitimate—and non-legitimizable decisions, too.

A fundamental starting point/implication of our notion of legitimacy is that, in order to verify the legitimacy of a decision, one must have access to the rationale or justification for the decision.  As portrayed in our work, this can be thought of as an argument about both the principles that ought to (and/or did) guide the choice and an demonstration that the final decision is in fact justifiable—sometimes necessarily through a complicated process of reasoning.

In a nutshell, then, our work provides a systematic (though, of course, contestable) argument in favor of the executive branch sharing the DOJ memos with Congress.

Putting It All Together. In addition to being applicable to the same story, the two strands of research—which leverage different (though I just argued not that different) veins of theory—also complement each other, particularly in the light cast by situations such as this.  In particular, placed side-by-side, they demonstrate one of the most fundamental realities of politics: every choice we debate for more than a couple of seconds necessarily involves an important trade-off.

In other words, seeking the truth can sometimes ironically further its obfuscation, just like banning certain types of Superbowl Ads can ironically create an incentive to create ads that will be banned.  Finally, recognizing the ubiquity of such trade-offs leads to the recognition of the fundamental importance of social choice theory. To quote Maggie Penn and myself,

Rather than taking [the impossibility theorems of social choice theory] as negatives, to be either ignored or worked around, … these results motivate the entire study of politics. The potential irreconcilability of multiple societal and/or individual goals is exactly the raison d’être of government.

This has obviously been an even more blatantly self-promoting blog post than usual. Instead of feigning an apology for that, I leave you this, the greatest pop song ever written.

____________

[1] In solely authored work, I also tackle this topic in this article and this working paper.

[2] To be fair, though, I think we make it in a variety of new ways and draw new institutional implications of it.

[3] For the cognescenti of these kinds of models, there is always a delicate question of commitment at this point.  I am setting that to the side.

Just So You Know, I Won’t Know: The Politics of Plausible Deniability

Posted on by

The IRS scandal, and in particular the handling (or, mishandling) of it by President Obama’s counsel, Kathryn Ruemmler, has raised a classic question: what did the President know, and when did he know it? In my mind at least, the question is predicated on the presumption that the president ought to know everything that is going on in the federal government.  After all, he is the administrator-in-chief, “the CEO,” the boss, the decider, the frickin’ POTUS!

A key point to remember through all such “management scandals” such as this is that the federal government is not a business, and particularly not the simplistic understanding of what “a business” is.  The reality is that the effectiveness of government can not be properly judged in an unambiguously unidimensional fashion like a classic (again, simplistic) business can be judged by its profits.  After all, one person’s “pork” is another’s “public purpose.”

That said, the real “mathofpolitics” point of this post is, even if the effectiveness of a government could be judged in a simple and uncontested unidimensional fashion, there are still situations in which the boss should not know everything that is going on.  Mind you, this is not a feasibility/constraints argument such as “the boss is simply too busy to worry about that).  Ironically, it is the opposite: there are situations in which the boss should not know some fact X precisely because the boss might care too much about X.  In other words, there are situations in which voters/shareholders (i.e., “principals”) might want their politicians/CEOs to not know something.  That is, the notion of plausible deniability is not exclusively a polite term for nefarious blame avoidance.

As I wrote a few days ago, political accountability is almost inherently an adverse selection problem. We as voters worry, and I think rightly, about the true motivations and goals of our representatives.  It is a little complicated, but consider the following simple situation to understand the importance of plausible deniability.

Suppose that a politician is charged with reviewing applications for grants.  Should the grant applications include the name of the applicants?  Well, practical concerns answer this in the affirmative: how else can you award grants if you don’t to whom to award them?

So, supposing the applications have the names on them, should the names be removed prior to the politician’s review of the applications?  That is, should the review be “blind” with respect to the applicants’ identities?  Before you answer, “yes, it’s only fair,” think why this is the case, because the reason is (at least) two-fold.  The more obvious of these two folds is based on the possibility that the politician is biased in favor (say) people who share his or her political views or partisanship.  (And let’s reasonably suppose that such favoring would be bad/inefficient relative to the goals of the grant program.)

In this scenario (the heart of the adverse selection worries alluded to above), removing the names creates a “more efficient” award process because it removes something that the awarding of the grants should not be conditioned upon from the ultimate determination of the awards.  This is a direct argument for “insulating” the politician from a piece of information about what’s going on in the government (i.e., who‘s getting grants?).

The second fold is more subtle.  Suppose that the politician is unbiased.  Technically, suppose that you almost certain that the politician is unbiased (i.e., the probability that the politician would exhibit favoritism is arbitrarily close to zero).  In simple probabilistic/expected utility terms, the argument sketched above would suggest that the gain from removing the names from the applications is also arbitrarily close to zero.  So, that argument would follow, you shouldn’t “pay much” or “go to much trouble” to remove the names from the applications, right?

Wrong. While this argument is correct “at the limit”—i.e., when the politician is absolutely, positively, without a doubt known to be unbiased—it falls apart (in game-theoretic terms, “unravels”) when there is even a scintilla of a (perceived) chance that the politician is biased.  The reason for this is that the politician, if he or she knows that the voters know that the politician can see the names, needs to worry about the voters inferring something (or “updating their beliefs”) about whether the politician is actually biased.  If he or she awards “too many” awards to his or her buddies (or, if we think there are a few friends, a few enemies, and a third group of non-friends/non-enemies, if the politician awards “too few” awards to his or her enemies), then a sophisticated voter will have increased (and perhaps greatly increased) reason to believe that the politician is actually biased.

The actual effect of this dynamic—for example, whether it will lead to too many or too few awards being awarded—depends on the parameters of the problem (specifically, the net benefit of an extra award and the weight that voters think a biased politician assigns to helping friends/hurting enemies), but the key to this second fold of the argument is as follows:

An unbiased politician will (ironically) condition his or her decisions on the names of the applicants if the politician is known/believed by the voters to have had the names when making his or her decisions.

So, when an advisor goes to great lengths to make it known (i.e., tells others, records the facts, etc.) that he or she did not tell the politician “the names,” this is not necessarily a “cover up.”  Rather, and particularly when the names are “politicized” (i.e., the awards are coming out in a biased way), this approach can be required (even if ultimately unsuccessful) to support a “de-politicized” decision process by the politician.

Another way to think of this is as follows: suppose that the politician chooses 10 awards, and the advisor, upon looking at the names in another room, realizes that the politician has given awards to 10 enemies.  At first blush, one might think—well, heck, if the politician is unbiased, then he or she could be told this fact.  But this is not true, because if this were a possibility, we (the voters) would (or should) wonder exactly whether the advisor told the politician that and the politician changed his or her mind/redid the awards whenever we see 10 of the politician’s friends receive awards.

Is this dynamic at play in the IRS scandal?  Yes.  It is at play throughout the federal government everyday.  For example, the idea of the special prosecutor (or special counsel) is entirely based on it.  Viewed from a strategic point, whether Obama should appoint a special counsel in this case is not unambiguous, as it could be akin to a Chamberlain moment vis-a-vis the House GOP, but I think I agree with Bill Keller that he should.

With that, I leave you with this.

 

 

Uninsurable Risk: Adverse Selection and the Politics of Scandals

Posted on by

American politics lately has been centered on SCANDAL! In particular, President Obama has been at the center of several well-publicized controversies, ranging from Benghazi to the IRS to the Department of Justice.

The politics of scandal is interesting.  For example, in none of the current scandals is there any real evidence that President Obama “did” anything directly (for example, as opposed to the crack-smoking scandal in Canada).  Rather, the questions center (appropriately) on whether the acts of subordinates reflect a general, if latent, policy/stance of the Obama Administration.  In all cases, the worry is essentially that the Obama administration is concerned with “political gain” at the expense of “good policy.”

Setting aside the difficulty of defining “good policy”—a ubiquitous problem that bedevils presidents from both parties—the “math of the politics of scandal” is similarly ubiquitous and bedeviling.  A potent view of the politics of scandal is provided by the notion of adverse selection. In particular, the adverse selection view of political scandals provides a useful understanding of why scandals are both inevitable and, more intriguingly, “important” even when the events directly associated with them are not necessarily so.

In a nutshell, adverse selection refers to situations in which there are multiple types of politicians (or any other agent), some of whom a given voter would prefer not to have in office, but the voter can not directly distinguish between the types.  Adverse selection is perhaps most visibly demonstrated in insurance markets: the insurance company would prefer to insure low risk individuals (e.g., good drivers), but provides a product that is necessarily particularly attractive to high risk individuals (bad drivers).

In the conventional view of politics, individuals who seek office are ambitious: campaigning is a costly and generally risky activity, and even holding office is not particularly remunerative. Accordingly, a degree of vanity or policy motivation is almost a sine qua non for a high profile political career.

Politicians who seek policy change are accordingly viewed with some suspicion: in order to secure public support for a new policy, a politician will seek to persuade voters that the policy is in their interest(s).  However, the costliness of campaigning, etc. and our belief that some politicians are accordingly driven by vanity or personal (rather than, or in addition to, “altruistic”) policy motivations implies that we view many such persuasion attempts with skepticism.  This is the first order effect of our awareness of the adverse selection problem: if there were no adverse selection problem, then we could rightly defer to the politician’s proposal.  (This protomodel can serve as a microfoundation for Richard Fenno’s famous “Home Style” argument: politicians seek to credibly emulate their constituents so as to ameliorate their constituents’ perceived likelihood of the adverse selection problem.)

The “politics of scandal” is a second order effect of adverse selection, in the sense that scandals, and the various courses they tend to run (e.g., slow burn, quick flame out, absolute barnburner, etc.) can be thought of as representing decentralized audits (or, perhaps, “sniff tests”) that politicians face from time to time.  If there were no adverse selection problem, a credible reform of consulate security would (or theoretically should) “end” the Benghazi scandal.  Similarly, if there were no adverse selection problem, replacing Michael Brown at FEMA would have quieted the backlash against President Bush following Hurricane Katrina.

So, what does the math of adverse selection tell us about scandal?  Well, the details of the model of course matter a lot, but a couple of generalizations are pretty robust.

  1. Scandals will be prolonged when the politician is already suspected of being a “bad type” and, furthermore, the scandal will be prolonged by and promoted towards those voters who are already suspicious of the politician.  (Call it the Kanye effect?)
  2. Admitting the failure and taking the blame for it can (will?) end the scandal.  This is because, under the typical adverse selection setting, the notion that the scandal is informative is precisely because the politician is actively trying to conceal his or her type. (Definitely call this the “Bay of Pigs/Janet Reno” effect.)
  3. Scandals will be prolonged when the act(s) in question have a high probability of revealing new information about the politician.  That is, a scandal that strongly contradicts closely held beliefs of the politician’s supporters about the “true nature” of the politician (e.g., the AP subpoena scandal for Obama or the Rush Limbaugh prescription drug scandal) will be prolonged precisely because those opposed to the politician have a greater incentive to push, dig, and promote it.  To take the contrapositive, it is unclear that Obama would be (politically) harmed even if it came out that he personally audited and harangued tea party 501(c)(3) groups.  (Taking a similar example from the past, call this the “Dick Cheney’s Secret Task Force Effect.”)  (Also, as a mathofpolitics point, note that this is related to—in the sense of being the mathematical dual of—the “It Takes A Nixon To Go To China” class of signaling models.)
  4. Scandals are more prolonged when it is more plausible that the politician knew about the problem before it happened.  Of course, the famous saying that It’s not the crime, it’s the cover-up seems to suggest otherwise.  In reality, the saying is making exactly this point.  The reason that the cover-up was so important (as, similarly though less spectacularly, was the Whitewater/Lewinsky impeachment fiasco with President Clinton) is that the cover-up activities, the obfuscating, the dodging are all consistent with a “bad type” reluctant to reveal this fact.

In the practical terms of the three aforementioned Obama imbroglios, these generalities suggest to me the following rough-and-ready-and-completely-seat-of-the-pants ranking of their “seriousness” from least to most serious:

  1. (Least) Benghazi,
  2. IRS,
  3. (Most) AP subpoenas.

This post is already arguably too long, but I’ll quickly list the empirical characteristics that helped me make this list in light of the four generalities above:

  1. Attorney General Holder is still in office and presumably a close confidante of President Obama.  Note that Attorneys General are Ground Zero for modern Cabinet-level scandals. (Sorry, Department of the Interior, the heydays of the 19th and early 20th Century are currently no more but, that said, never forget the now-disemboweled Marine Mineral Service and the Deepwater Horizon disaster.)
  2. The AP scandal is arguably distinctly “unDemocratic”—particularly in light of its obvious analogies with the various Nixon scandals (also applies to the IRS scandal even more directly, though the IRS was significantly reformed after Nixon’s fiascos).
  3. It’s not clear how Obama can come out “against” the AP scandal (for example, see this).  This is a bit complicated, but it is thin needle to thread to be against the AP scandal and against potentially-national-security-compromising leaks of classified information.

So, Obama rightly has his work cut out for him.  If it were me, which it most definitely ain’t, I don’t know what I’d do.  Probably obfuscate, wait for the public to become disinterested in subpoenas and journalists, and pray for a happy, healthy, and well-covered royal birth.

With that, I leave you with this.

 

The Impermissibility of Permission Structures

Posted on by

The idea of a “permission structure” has attracted some attention this week.  The basic idea of this phrase, it seems, is as follows: A doesn’t trust B to do some activity X because A fears that B does not have A’s best interests at heart in the “realm” of X.

A good example of this type of distrust is when you get in a car accident.  Both you and your car insurance company are faced with the difficulty of who should determine what “should be fixed” under your policy. You don’t want the insurance company to determine this, because they have an incentive to minimize costs and, accordingly, denote too few things as “needing to be fixed.”  On the flip side, your insurance company doesn’t want to let YOU determine this, because suddenly that “three martini lunch bumper ding” you got 6 months ago is deemed “covered” and repaired on the insurance company’s dime.

The point I want to make is that, at least in a very specific sense, permission structures can (almost) never solve the problem they are purportedly designed to solve.  In a nutshell, think of a simple model where there are two types of politicians: one type is “faithful” and the other type is “biased.” To continue to keep it simple, suppose that the faithful type of politician will always use (say) increased taxes in a way that benefits you and the biased type will use them in such a way as you would rightly prefer not to have your taxes increased for how he or she would spend the resulting revenues.

The idea of a permission structure is to clarify to you, the voter, when the politician is a faithful type and not a biased type.  As Obama said recently,

We’re going to try to do everything we can to create a permission structure for [Congressional Republicans] to be able to do what’s going to be best for the country.

The impossibility of “creating a permission structure” (regardless of whether it is through “third party authentication” or otherwise) is due to the use of the term “creating” (it is also doubly ironic for Obama to announce that he and his team are going to “try to do everything we can” to create one).  The math of politics of this post is a remarkably simple point that seems to have been closely brushed by many of the analysts, and it rests on the concept of “creating” such a structure. Suppose that a third-party authenticator could be found/created/cajoled—or even simply brought to everyone’s attention—that would lead voters to say “hey, cool—you’re the faithful type!”  Then think for a minute and ask yourself—why would the biased type not find/create/cajole such an authenticator?  Indeed, in many (but not all) situations, the biased type would have a stronger incentive to create a permission structure than the faithful type.

There’s always the possibility that when the politician is a biased type no such authenticator could be found/created/cajoled.  But, let’s be honest, that’s a pretty knife-edge case.  (I mean, have you heard of Wayne LaPierre?)  Also, it’s at least theoretically possible that the biased type is relatively uninterested in raising your taxes (and, accordingly, little interest in creating a permission structure).  I leave this to the side, as such a presumption describes exactly zero American voters’ beliefs about politicians.

Accordingly, the problem with Obama’s statement wasn’t the elitist/wonkish sound of the term, or the possibility that it strengthened a perception of him being unwilling to “knock some heads” or otherwise “lead.”  (Nonetheless, I do appreciate the irony of conservatives banging on the table saying “WHY DON’T YOU LEAD LIKE THE GUY WHO CREATED MEDICAID AND GOT BOTH THE CIVIL RIGHTS & VOTING RIGHTS ACTS PASSED!!!”)

…No, the only real problem with the statement is that Obama pointed out the man behind the curtain: many voters can’t trust “government” right now precisely because they have a strong suspicion that government is trying to fool them.  This is very sad to me for many (nonpartisan) reasons, but it illuminates the adage:

Never trust a man who says, “Trust me.”

With that, I leave you with this.

Immigration Reform: You do it…So I Don’t Have To…Really.

Posted on by

The US Senate is currently considering immigration reform, with a bipartisan group of Senators working toward a compromise on one of the higher profile post-election issues. At the same time, the Obama Administration has been preparing its own plan, which was leaked by USA Today.  President Obama called on Congress to address the issue in his State of the Union address, and reaction was generally positive from both sides of the aisle.

The strategic situation here is a classic, but nonetheless interesting one.  Immigration reform is seen as necessary by both parties.  The devil is in the details.  President Obama’s gambit here is to present both Democrats and Republicans in Congress with a “way out.”  For example, he is speaking in generalities about reform, encouraging the notion that there is a bipartisan consensus on the broad strokes of reform, and stating that he will sign a bill if given one by Congress. These strategies allow Obama to not take a position and also allow/require Congress to construct a policy that can cover enough members’ interests to secure passage.  It is notable in this regard that reform is “starting” in the Senate—this highlights the cross-cutting nature of immigration reform.  On the one hand, it is always tough to get 60 votes.  Starting the process in the Senate suggests that securing the votes is seen as “doable” by some, if not all, Senators.

At the same time, members of the Obama Administration are making clear that that the President will present his own legislation if Congress does not act quickly.  In addition, House Democrats are publicly claiming that President Obama can act unilaterally in meaningful ways. For example, Rep. Joseph Crowley (D-NY) is quoted as saying that, with respect to immigration reform, Obama is “not just beating the drum … he’s actually the drum major.”

Obama may or may not have the stomach to make (further) significant unilateral moves on immigration.  But making the argument that he does increases the bargaining power of Democrats in Congress.  In particular, if Obama does proceed unilaterally on immigration, the pretense of bipartisanship is much less valuable to him.  Accordingly, Republican members of Congress who seek a say in the details of reforms must envision a tough road securing those details in a unilateral Obama-led administrative/prosecutorial immigration reform push.

In a nutshell, then, Obama’s language can be read as “I don’t have any reason to not yield on many possible specific points/details of this reform.  I also don’t have any reason to fight for them.  You put in the effort, you get the discretion.”  This gambit is possible precisely because of the cross-cutting nature of immigration reform: many of the details are themselves not partisan “per se.”  This gambit is valuable to Obama for exactly the same reason: any reforms he implements through unilateral action can–unlike statutory reform–be undone with the stroke of a pen by his successor.  That, regardless of your party, isn’t real reform at all.

With that, I leave you with this.

 

Who Has A Secret List and Flies Around The World With Gifts?

Posted on by

I have to be honest—I don’t actually know the criteria for being classified as naughty or nice by Santa.  I also don’t know how I would find out.  I do know that he flies around the world giving out “incentives” once a year.

…It turns out that the Obama Administration is stealing a page from Santa’s playbook and, in good American fashion, MAKING IT YEAR-ROUND.

 

The big news this week is the new revelation of a policy paper (i.e., “white paper”) that (sort of) discusses the justification for killing American citizens who are deemed to be high level officials in Al Qaeda and affiliated groups.  There are many problems and dilemmas in this hornet’s nest, and (surprise!) I am not a fan of the policy.  (And, to be absolutely clear, I have yet to hear even an imaginably compelling argument for why the justification for the policy should be kept secret.) However, I will focus on one of these dilemmas, jointly contained within the reasoning of the policy paper and the Obama Administration’s policy that the kill list be kept secret.

In a nutshell, white paper argues that an American citizen’s due process rights (c.f. the 4th and 5th Amendments of the US Constitution) are counter-weighed by the collective security interests of society when 3 criteria are satisfied:

  1. An informed, high-level official of the U.S. government has determined that the targeted individual poses and imminent threat of violent attack against the United States;
  2. A capture operation would be infeasible and those conducting the operation continue to monitor whether capture becomes feasible; and
  3. The operation (i.e., killing the individual) is conducted consistent with applicable law of war principles.  (In this context, this basically means you must accept a surrender by the target if offered and you shouldn’t obliterate a whole village of innocents to eliminate the target.)

Some have focused on the memo’s somewhat tortured (re)definition of the word “imminent” in justifying why it is legitimate to kill someone who, in theory, could be (temporally) intercepted prior to the actual event.  I don’t have a problem with this definition for a number of reasons.  Like obscenity, I think imminence is something that you know when you see it (or, perhaps, right before you “saw it”).  We wouldn’t ask a law enforcement official to wait to shoot a suspect until the suspect’s finger was actually pulling the trigger, would we?  Of course, we wouldn’t countenance that officer shooting someone just because the suspect has a gun in his or her car. It’s a classic example of the type of gray area that is referred to as residual discretion and my coauthor and co-conspirator Sean Gailmard and I have argued that interpreting how best to use such discretion is generally best left in the hands of the individual tasked with its use.

Setting that important point to the side, however, I believe in this case that an even more important point is the conflict between the definition of imminence and the secrecy of the kill list.

A sine qua non of due process is notification of charges and the ability to challenge their validity.  From a practical standpoint, due process is designed to correct errors.  From a normative standpoint, due process is designed to prevent irreversible errors. Both motivations apply in this case.

The starting premises of the policy paper are

  1. an official has made an official determination that
    1. the suspect is a high-ranking official of Al Qaeda and
    2. capture of the suspect is infeasible.

Suppose now that the suspect’s name is included on a public list (much like the “most wanted list”).  Two things happen simultaneously:

  1. the suspect (in theory, which is what matters) knows that he or she must turn themselves in to avoid possibly being blown up by a drone, and
  2. other individuals know the same thing.

The first point (which is another instance of a take-it-or-leave-it bargaining game: turn yourself in or we’ll blow you up) is relevant for due process: it is the basis of “being served” a subpoena (“under penalty”).  Put another way, how do we know that we are truly incapable of capturing the suspect until we at least theoretically give him or her the chance to surrender?

Claims that publishing such a list might expose our intelligence methods, make the suspect go into hiding, etc., miss the mark.  In addition to the direct ex post (corrective) effects discussed above, due process requirements are socially beneficial precisely because they are costly—knowledge that these requirements must be satisfied force the agents of the government (who, for example, can face individual liability when they circumvent such requirements) to take greater care in collecting and analyzing evidence.  Put another way, this type of argument boils down to the claim that due process requirements help criminals get away with it.  Accordingly, think for a second about setting aside the right to appeal in capital cases.  The difference is only one of degree.

Similarly, responding that “the suspect should know that he or she has this opportunity because they are actively engaged in open conflict with the US” has no purchase in refuting this, because either

  1. the suspect knows that the US government knows this, in which case there is no harm in informing the suspect that he or she has “one last chance” to surrender, or
  2. the suspect does not know the US government knows this, in which case the due process concerns are relevant, because this opens the possibility that the “informed, high-ranking official’s” determination is incorrect.

The second point (informing others about the inclusion of the suspect on “the list”) clearly has good impacts in various ways: maybe somebody will turn the suspect in for a reward, maybe it will make other neutral or enemy individuals less interested in hanging out/collaborating with the suspect (i.e., “drone magnet”), etc.

A final point is in order here: a grander concept of due process, extending beyond the potential salubrious informational and welfare impacts of process, is that of being governed by laws and not individuals.  This policy, particularly given the claims that the basis of the policy must and should be kept secret, is directly and incontrovertibly at odds with this concept.

Neither conspiracy theories nor quasi-paranoid slippery slope arguments are required to justify thinking this is a big deal.  In a very important way that seems circular because it encompasses both signaling and coordination games, transparency is important because it is important.  Claiming the authority to withhold the legal justification of a government policy is a clear transgression of a basic principle of democratic governance.  Politicians of both parties have done it, and each and every one of those politicians should be ashamed.

With that, I leave you with this.