I am certain that global warming is a serious problem. By regulating carbon dioxide emissions, the Environmental Protection Agency may ameliorate the damage a bit. However, I don’t dismiss the arguments of the dissenting conservative justices in the recent global warming decision, Massachusetts v. EPA.

A responsible blog post would be based on my careful reading of the majority opinion and the dissents, relevant portions of the Clean Air Act, the best current commentaries, and a famous law review article by Cass Sunstein about the Clean Air Act (Michigan Law Review, 1999). Despite good intentions, I can see that I’m not going to pull that off. Instead, here is a simplified argument:

1) Major decisions in a democracy should be made by the elected branches of government. Legislatures are accountable, they are deliberative, they can balance costs and benefits across the whole federal budget, and they can choose among all constitutional remedies to a problem. For example, to address global warming, Congress could enact carbon taxes, import/export taxes, cap-and-trade regimes, tax credits, or regulations on producers or consumers.

2) However, Congress has a tendency to duck the tough decisions by writing deliberately vague statutes. For example, I am aware of a section of the Clean Air Act that empowers the EPA to set ambient air quality standards at levels “requisite to protect the public health” with “an adequate margin of safety.” No amount of air pollution has zero potential impact on safety or health. “Adequate” safety means some amount of risk that’s greater than zero–but not too much. That’s not a scientific or technical judgment; it’s a value-judgment about what level of safety is worth the cost. Congress avoids making such value-judgments, because then it would be responsible when some people suffer–or even die–from whatever pollution is left in the air. Congress would also be directly responsible for the financial cost of any regulation. Instead, it passes the responsibility to EPA, which can then be blamed for both the costs of a regulation and the environmental harms that are left over. Unfortunately, EPA lacks democratic legitimacy, and it can only regulate (not tax or take other actions). Regulation may be a highly inefficient response to global warming.

3) When the EPA or other regulatory agencies fail to deliver adequate policy, it is tempting to sue them. But then a court’s judgment substitutes for that of a legislature. Courts lack democratic legitimacy, expertise, and the ability to impose such policies as taxes or cap-and-trade systems. They are set up to hear cases and controversies between parties; they are not good at balancing one person’s interests against the common good. For example, they are not responsible for the overall budget, so they cannot decide whether a decision that has costs to the government is worthwhile, all things considered.

Thus the only really satisfactory solution is for Congress to pass laws on global warming. Massachusetts v EPA will actually be counterproductive if it lets Congress off the hook or allows Congress to delay.

Jamison Colburn argues that the case is not very significant, anyway. “What it comes down to is this: if EPA is going to refuse to regulate greenhouse gas emissions as ‘air pollutants’ under the Clean Air Act, and it chooses to do so in some discrete ‘agency action,’ it must do so on better grounds than the (lame) argument that the statute wasn’t enacted with the specific intent to regulate greenhouse gases or similar calamities. That is all it comes to, though.” If Colburn is correct, then populist/democratic concerns about judicial activism are misplaced–but only because the court didn’t do much at all.

I missed a big meeting last week at Pepperdine in California. (I couldn’t afford the air fare.) The conference combined talk of electoral reform with discussions of public deliberation. Electoral reform was on the agenda because our legislative districts have been drawn to minimize competition and accountability. Public deliberation seems a powerful response; it can generate reform ideas that have legitimacy because representative citizens have chosen them (whereas all elected officials have some kind of stake in the status quo).

The Canadians have some useful experience in this area. The British Columbia Citizens Assembly proposed a redesign of that Province’s electoral system. Gordon Gibson covered the Pepperdine conference from a Canadian perspective for the Globe & Mail:

One of the most surprising things is that randomly selected panels (drawn, say, from the voter’s list) are actually far more representative than the so-called representatives we elect. If you look at the face of Canada, you do not find it reflected in the House of Commons. And, for some things, these random panels are far better than elected representatives or groups of experts. They are not partisan and they do not play games.

This is not to disrespect elected representatives, who will and should do the bulk of the work of governance. They are paid to be experts on our behalf. But citizen panels on policy issues can be highly imaginative. They have been used on environmental cases in Texas, on what to do with the Roma in Bulgaria, on reconstruction planning in New Orleans and on public works prioritization in China (really – and it worked). A gathering of 600 “ordinary citizens” is scheduled to appear in the European Parliament chamber in June to discuss the future of the union.

The big excitement, however, is likely to come down south, just because the United States is so big, so powerful and so governmentally messed up. The key will be to use citizen panels as we have done in B.C. and Ontario to get around the conflicts of politicians and reform the very machinery of democracy. For the good of the world, that most needs doing in the United States.

Here are two conflicting ideas that both have some appeal to me:

1) Our political system is too manipulative. The techniques of persuasion have become too effective. Instead of just sending out a mass mailing, we design several messages and test them each with a random sample of the target audience to measure its impact. Instead of sending organizers out into a neighborhood to talk to people, we give them pre-tested scripts to recite. Persuasive political advertisements are slick, scary, and produced for particular niche audiences. As a result, there is not enough listening going on, not enough two-way conversation. Real needs and good ideas cannot bubble up from below. Communication is also too strategic–not designed to explore and address problems, but to get people to do what the organizers want. Finally, the techniques of effective communication are for sale, so they tend to benefit organized groups and interests with money rather than diffuse or poorly funded interests.

2) We should prize eloquence as a skill and virtue of political participation. We teach people to express themselves effectively in writing and speech because that is part of being a good citizen. Americans need a “public voice” that can persuade others who are different from themselves on matters of common concern, not just a “private voice” that works among friends and family. As Francis Bacon said, “it is eloquence that prevaileth in an active life.” Modern techniques (such as randomly testing messages) are natural refinements of traditional methods for assessing the impact of speech on audiences. They are not especially threatening, nor are they always effective; sometimes, people prefer spontaneity. When speech is free, some will be better at it than others. If their persuasiveness can be bought, that is nothing new. Protagoras sold his services as an orator in ancient Athens.

Today, my colleagues and I discussed a paper on assisted human reproduction in Canada. In passing, we learned that the Royal Commission on New Reproductive Technologies “took advice from about 40,000 individuals and organizations with interest [sic] in the matter”–collectively known as the “stakeholders.” Consulting stakeholders is a popular way to enhance the quality and legitimacy of state decisions. It is most often used in the writing of regulations. Laws are written by legislatures, which claim legitimacy on the ground that their members have been elected. But laws always require detailed regulations; and regulators are not elected. Rulemakers and administrators appear more democratic if they consult “the stakeholders” before they make decisions.

Another phrase for “stakeholder” is “interest group.” Whereas consulting people who have “stakes” in a given matter sounds wise, giving access to interest groups sounds problematic. Indeed, consulting organized interests raises several concerns:

1. A set of interest-group representatives (no matter how numerous) will not represent the whole population. To form an organization takes resources. Thus people with more money will have more interest-groups per capita. Also, people whose interests are more clearly defined and pressing will be more likely to organize themselves. For example, there may be lobbies for various types of medical specialists, but only a weak lobby for patients. Diffuse and subtle interests may be completely lost. For instance, as consumers of food, we might have interests when the government is considering health regulations. (Maybe more state funding for in-vitro fertilization means less funding for agricultural research.) But it is unlikely that a lobby would form to represent the health-policy interests of eaters.

2. Because of the “Iron Law of Oligarchy,” the representatives of interest groups may not reflect the opinions of their own members. For example, someone who claims to represent thousands of nurses may not share the views of average actual nurses.

3. Most “stakeholders” arrive with instructions from their organizations. Sometimes those instructions are rather narrow. For instance, a stakeholder may work for a firm with a fiduciary obligation to maximize returns for its shareholders. When people hold rigid but conflicting instructions, they have trouble deliberating as a group. They may negotiate to get the best possible deal, but they cannot learn or change their aims in response to principled arguments. Faced with conflicting demands, public officials may well try to “split the difference.” The result is policymaking as bargaining.

4. Impressing policymakers takes skill. The relevant skills are for sale. Groups with more money will have better powerpoint presentations, more timely polling data, a better grasp of the regulatory timetable and process, more contacts with other groups, and so on. Thus they will tend to prevail.

There are two alternatives to stakeholder consultations–neither of them foolproof. One is to force legislatures to make all the really serious and controversial choices. The other option is to delegate decisions to regulatory agencies but require them to consult representative samples of the public.

[Two classic treatments of this problem are Theodore Lowi’s The End of Liberalism (1969) and Robert Reich’s “Policy Making in a Democracy,” a chapter in his 1990 edited volume The Power of Public Ideas.]