Rationality and the Voting Machine

The fundamental problem with the voting machine is that rational voting by each legislator on various related issues is likely to give rise to a collectively irrational outcome. That is, the legislature may enact sets of provisions that there is no good reason to choose, apart from the fact that they were generated by a process that is responsive to the views of each legislator. If no legislator should choose the set of provisions that constitutes the statute, even if each had majority support on its own, then it is unreasonable to make law by way of a voting machine.

The statute that the machine produces is the set of provisions that survived majority vote. Two (or more) provisions may sometimes be contradictory in that the citizen cannot adopt both to frame his reason. If no person intends to enact both provisions, then there is no non-arbitrary way to read one subject to the other or to read both to avoid the contradiction. The provisions survived majority vote and therefore each was enacted; they were not enacted together as parts of one act intended, all the way through to the end, to be non-contradictory. That is, one cannot appeal to the intention of the authority to settle the contradiction. Simultaneous voting might often give rise to contradiction. Imagine that one legislator proposes a provision, while another legislator proposes a rival

formulation that is similar but a little different: say, one proposes a three-week time limit on applying for leave to appeal, the other a four-week time limit. A rational legislator might vote for both on the grounds that either is worth adopting and he does not know which is more likely to attract majority support. He does not want both proposals to fail because he only voted for one. Yet if both are enacted, the legislative output would be unreasonable, because contradictory.

Any statute that emerges from the voting machine may also be incoherent. That is, the parts of the statute may work against each other, while falling short of outright contradiction. With shifting

majorities having settled different issues, it is quite likely that the set of provisions that emerges does not form a consistent response to the reasons that bear on how this particular community need should be addressed. The set may also be incomplete, by which I mean that an otherwise appealing scheme is

frustrated, or even wrecked, because one or more provisions that are necessary if the scheme is to retain its rational appeal did not survive the majority vote. The point is that if the content of the statute is settled by aggregating a series of discrete votes, rational voting on the part of each legislator may give rise to a statute that is unworkable. The resulting statute is collectively irrational, to use Pettit’s term,68 which means that it is not a response by the legislature to the relevant reasons. No person would think the statute fit to be chosen because it is contradictory or incoherent or incomplete, which means that it is a poor means to valuable ends. Therefore, the legislature should not produce the statute. The group of legislators—the legislature—is collectively irrational if its group act, the enactment of the statute, is not a good means to the ends for which the group exists to act.

To some extent, Waldron anticipates my line of argument. But he does not address it. He says:

Now, theorists of public choice are familiar with various tangles of cyclicity that such a machine might get into. Let us assume, however—as Wollheim did—that these are not a problem for the cases we are considering. The point of this thought-

experiment… is that it enables us to envisage a piece of legislation that cannot be conceived as, in Fish’s words, something produced ‘by an intentional being’… situated in some enterprise in relation to which he had a purpose or a point of view.69

The assumption is unsound. The voting machine is a model of general application and so it is not clear what Waldron takes to be the limited set of cases he is considering. Majority cycling is quite possible in a series of votes on a large number of issues and this is a further reason to expect the voting machine to issue contradictory directives. If alternatives cycle, then ordinarily the legislature would be unable to reach any stable decision. The voting machine might well enact all of the cycling alternatives. Resolving this problem requires agenda-control, as well as deliberation and decision- making that focuses on one complete proposal.

For Waldron’s thought-experiment to succeed, it is not enough for it to be possible to envisage a statute that cannot be conceived of as produced by an intentional being. The statute in question must be a reasonable exercise of legislative authority, such that it is a well-formed instance of legislative action, rather than a distorted or corrupted instance. Possibility is not what is at issue.

In a footnote within the last extract (at the end of the second sentence), Waldron also notes and purports to avoid the coherence objection:

I also want to evade a complaint that Dworkin might make, that the Wollheim machine is capable of yielding something like ‘a checkerboard statute’, that is, a statute that lacks internal coherence … Even if Dworkin is right in thinking that there is something objectionable about a statute so compromised that it does not reflect any coherent set of principles or policies, he can hardly deny that it is a text and that a judge might make a good faith effort to interpret it. Remember too that ‘integrity’, the value which Dworkin says is at stake here, is just one legal value among several, and must often be considered alongside justice and fairness … In any case, the Wollheim machine need not produce statutes that lack integrity. At most, a requirement of integrity would imply only that the machine’s output could be interpreted as the product of someone’s intention, not that it

must be so interpreted.70 My concern has not been with integrity in Dworkin’s sense. The common good requires the choice of rules that will serve as adequate and rational responses to some particular community need. There may well also be value in the community speaking with one principled voice, to use Dworkin’s term, but this is not my interest and it is not the only sense in which coherence matters. A plan of action, to succeed in attaining some valued end, has to be sufficiently coherent and complete to serve as a means to an end. This is a truth of practical reason that the machine fails to respect.

Waldron’s account does not attend closely to the importance of complex plans of action, which work together as a means to valuable ends. The contrast he draws between compromise, justice, and fairness on the one hand, and integrity or coherence on the other, is telling. Justice is often secured by complex, coherent action in response to reasons. Not all questions of justice are isolated and capable of abstract resolution. Instead, framed by general moral truths, the legislator responds to the detail of the particular situation. Further, it is not always unreasonable to compromise and a reasonable

compromise is consistent with, and forms part of, a scheme that helps serve the common good. Reasonable legislators may choose to compromise. Even a checkerboard statute might be a suitable object of legislative action. A statute that uses birth dates to settle who is to be called up for military service, for example, would not be contradictory, but would be a reasoned response to the problem at hand (a choice to adopt a somewhat arbitrary resolution). The voting machine does not sacrifice

coherence to compromise; it precludes the legislature from acting deliberately in response to reasons for compromise.

The three arguments for the authority of unintentional legislation did not establish that the machine is likely to produce reasonable legislation. If a statute is a set of inconsistent, contradictory

provisions that lacks what is needed to form a coherent plan of action, then I say that the statute is unreasonable. There is no reason to think it any more reasonable because it is the product of a series of majority votes.

Statutes are complex decisions. Yet the voting machine stipulates that neither legislators nor interpreters can understand different provisions to explain and inform one another, to form part of a plan that is larger than a series of discrete independent ‘choices’. Each provision has its conventional sentence meaning, and barring explicit reference to another provision (which is possible but not well suited to the voting machine), it is to be given effect strictly in accordance with that meaning. This is what Waldron means when he says that the statute is not the product of any person’s coherent

intention. The reason for the stipulation is that each provision is part of the statute solely because it survived majority vote. Each could have been adopted independently and the interpreter frustrates the voting machine if he understands the fact that both survived the vote to mean that one informs the meaning of the other.

This stricture demonstrates that the voting machine is an unreasonable model of the legislative process. Various provisions are very often chosen precisely because of how they inform the scope and meaning of the other, so that the legislators understand them as being related to one another. That is, legislators act for more than just each provision read in isolation. And it is valuable that

legislators are able to form proposals in this way, with the content of the proposal being settled not just by the meaning of each provision read in isolation, but read as part of a larger, reasoned plan, which is at least capable of being chosen by a reasoning person.

Waldron’s own example, the imaginary Vehicles in the Park Act 1993, proves the point.

Vehicles in the Park Act 1993. (1) With the exception of bicycles and ambulances, no vehicle shall be permitted to enter any

state or municipal park. (2) Any person who brings a vehicle into a state or municipal park shall be liable to a fine of not more than $100.71

There are two problems with this Act. The first is that if (1) is read literally, then it does not prohibit persons taking vehicles into the park. The section denies permission to any vehicle, apart from

bicycles and ambulances, to enter the park. This is an unfortunate formulation for two reasons. First, vehicles are incapable of action; persons are the proper objects of legislative direction. Second, if one assumes that the section is (intended to be) directed towards persons, the phrase ‘no vehicle shall be permitted’ purports to remove someone’s power to grant permission to another person to take his vehicle into the park. No such power is likely to exist and yet removing permission or power to grant permission is not the same as prohibiting; whatever is not prohibited is permitted. It follows that in these two ways, the conventional meaning of the statutory language does not explicitly prohibit a person from taking a vehicle into the park: instead it denies vehicles permission to enter. The

legislators that enact this section are likely to intend to prohibit a person from taking a vehicle into a park and those legislators might think that even if the statutory language does not state this explicitly, it conveys it by implication. However, this conclusion is not dictated by the conventional meaning of (1), but is instead a reasoned inference about what the legislators are likely to mean in uttering (1).

The second problem concerns the relationship between the two sections. Assume that a person who takes a vehicle into a park breaches (1). The Vehicles in the Park Act does not impose any

consequence on him for that breach. The person also happens to breach (2), which is somewhat better formulated: the section imposes liability for a fine on the person who brings a vehicle into the park. Thus, (1) is not necessary to ground liability for a fine. Now imagine that a person takes a bicycle or an ambulance into a park. The person has not breached (1), but he has breached (2), which applies to ‘a vehicle’. The cyclist or ambulance driver may argue that (1) limits the scope of (2), but neither section says this, and the conventional meaning of’a vehicle’ is just a vehicle, which includes

bicycles and ambulances. It is true that the legislators probably enacted (1) to limit the scope of (2). It is unclear why else they would enact (1). The section was not well formulated to that end. It would have been better to say: ‘For the purposes of section two of this Act, “a vehicle” does not include an ambulance or a bicycle’.72 However, the interpreter asks why the legislature would enact these two sections together and infers that it intended (1) to qualify (2). That is, the interpreter reads the Act as if it were the object of the legislature’s coherent, reasoned choice.

The Vehicles in the Park Act is Waldron’s only example of a statute that the voting machine might produce. He concludes that ‘when the statute is read for the first time … [one] is not entitled to say that the aim of the reading must be to determine what somebody meant.’73 This conclusion is undercut by his assumption, quite likely shared by the (imaginary) legislators, that (1) qualifies the scope of (2). Waldron, I think, took the two sections to constitute a coherent, reasoned scheme, in which (1) limited the scope of (2) despite neither section saying this directly. This coherent reading is entirely reasonable. Of course, one might argue that the legislators chose to word (2) to make clear their

decision that (2) should have a wider scope than (1), with the difference in word choice grounding the inference that ‘any vehicle’ in (2) meant any vehicle. The weight of argument favours the reading that Waldron assumes because it is reasonable to infer that the legislators understood and intended the point of (1) to be to qualify (2). Interpretive argument thus centres on what it was that the legislators did together when they enacted the two sections.

If the legislature were a voting machine, it would be impossible for rational legislators to

understand a statutory scheme in the way that Waldron reasonably understood the Vehicles in the Park Act. It follows that it would also be impossible for those legislators to act to secure the common good by intending to enact a scheme of various provisions that inform and support one another.

The effect of the voting machine is to make it difficult (or almost impossible, if voting is

simultaneous) to take a broad view of what should be done and to adopt coherent, complex plans to that end. The voting machine model and the three arguments for indirect authority privilege episodic, isolated responses to particular questions. The voting machine thus frustrates the central task of the reasonable legislator: thinking about what complex, reasoned approach the legislature (and the

community) should take to address this or that question. Instead, it forces the legislator to respond to a series of provisions, considered in turn with little capacity to keep at the forefront of one’s reason how the resulting set will work in the community. The machine forces the legislator to respond to each successive proposition, rather than to the more detailed, comprehensive, and unified proposals that he can see are needed.

The legislator in such an environment has good reason to try to game the machine, predicting how his fellows will act, and voting tactically in an attempt to secure a workable final set of propositions. Thus, his reasonable action undermines Waldron’s arguments for unintentional legislation.74 It will be very hard to act rationally if voting is simultaneous, because one’s vote on this or that proposition rightly turns on whether others are adopted, and yet whether they are adopted is not known until after the vote. The voting machine stops the legislators—any of them—seeing the complete proposal on which the legislature is to act, because the only point at which the final proposal emerges is after voting, at which point it is too late to consider its merits. The legislator has to vote and take his chances or vote very conservatively, rejecting provisions for which he would otherwise vote unless he is confident, somehow, of how his fellows will vote. Sequential voting is a little better, because the legislator is in a better position to vote tactically, aiming always to develop a proposal that is fit for choice by one (reasonable) person. However, the structure of the machine still makes it very hard for legislators to form reasonable proposals. The sequence of votes may often determine the success of particular provisions, so that the legislator’s reasoning would change markedly depending on the result of the previous vote. Thus, if Waldron were to opt for sequential voting in specifying the model, agenda-control would become all the more important.

A majority may support one provision, a different majority a second, and another majority a third and yet it may be that no majority supports all three provisions taken together. The lack of majority support for all three provisions may be precisely because that support would not be collectively rational. That is, the majority sees that it would be unwise to adopt all three together. Insisting that the group decide what is to be done by aggregating a series of votes on various issues is to set aside concern for the rationality that the final decision would have if the legislature were conceived to be a person responding to reasons. Yet the propositions that a statute sets out must at least be capable of being the choice of a reasoning person, such that the citizen has good reason to adopt that choice as if it were his own.

The legislators rightly consider whether a final complete proposal is one that they should support. The voting machine keeps this proposal from view, by preventing the legislators from formulating a complete proposal in advance of the final vote: their votes create the proposal that is then adopted. The legislators therefore lack the advantage of debating a complete proposal for action, deciding that in some sense it is lacking, and revising it accordingly. The voting machine makes the legislature highly responsive to individual legislators, but prevents them from talking, reasoning, and acting as a purposive group. Reasonable legislators are interested in how the legislature should act and thus they would reject a process that forces them to reach decisions by voting on a series of particulars (all at once or in some arbitrary sequence) rather than on final proposals. The voting machine is not an intelligent way to make use of the reasoning and judgment of the many legislators.

The model may perhaps be modified to enable it to produce reasonable legislation. If one took the results of the voting machine to be provisional and permitted the legislators to revisit various issues, then they would be much better placed to enact statutes that are reasonable, sufficient responses to