Complementary Constraints: Separation of Powers, Rational Voting, and Constitutional Design

By Nzelibe, Jide O.; Stephenson, Matthew C. | Harvard Law Review, January 2010 | Go to article overview

Complementary Constraints: Separation of Powers, Rational Voting, and Constitutional Design


Nzelibe, Jide O., Stephenson, Matthew C., Harvard Law Review


TABLE OF CONTENTS

I. SEPARATION OF POWERS AND ELECTORAL

    ACCOUNTABILITY: AN OVERVIEW                         624

II. HOW SEPARATION OF POWERS AFFECTS

    RATIONAL RETROSPECTIVE VOTING                       627

    A. The Baseline Case: A Single Elected Agent        627

    B. The Impact of Separation of Powers on Electoral  631
       Strategies and Political Behavior

III. IMPLICATIONS OF THE ANALYSIS                       636

    A. Presidential Empire Building                     637

    B. Responsibility Shifting                          639

    C. Gridlock                                         643

    D. Voter Welfare                                    645

IV. LIMITATIONS OF THE ARGUMENT                         647

    A. Rational Retrospective Voting                    647

    B. Effective Electoral Discipline                   650

    C. Clarity of Responsibility                        652

CONCLUSION                                              653

The voter, the political theorist V.O. Key once observed, is the "rational god of vengeance and of reward." (1) The extent to which voters can influence policy choices by rewarding or punishing politicians has long been a central concern for both political science and legal scholarship. Few political systems, however, rely solely on voter discipline to constrain elected policymakers. Instead, most advanced democracies rely on a combination of both electoral discipline and some form of internal separation of powers to reduce political "agency slack" (the deviation between the behavior of political agents and what the voter-principals would prefer). Electoral accountability ameliorates agency slack by punishing poorly performing incumbents and rewarding successful ones. (2) Separation of powers ameliorates agency slack by reducing the possibility that a biased or parochial interest group will be able to use the power of the state for its own ends. (3)

While the academic literature contains numerous sophisticated treatments of both elections and separation of powers, the literature has paid surprisingly little attention to how these different forms of institutional control interact. (4) The possibility of such interaction raises a number of important questions. To what extent does the separation of powers influence how voters wield their electoral power to reward or punish incumbent politicians? Is the separation of powers principally a substitute for electoral discipline, restraining biased government actors when voters are not able to do so effectively? Or might certain separation of powers regimes complement electoral accountability, making electoral discipline more effective than it would be otherwise? The answers to these questions bear on a more significant question: What institutional configuration best serves voter welfare? Are voters better off when one institution has exclusive control over a policy decision? Are they better off when two or more institutions must act together, as when the President must get congressional authorization or Congress must secure presidential approval? Or would rational voters prefer a system in which the different branches of government have the option of acting jointly or unilaterally?

While this Article does not aspire to provide comprehensive answers to these questions, it contributes to our understanding of these issues by analyzing how separation of powers and electoral accountability interact in a particular political environment. We consider a setting in which rational retrospective voters can observe both ex post policy outcomes and the decisionmaking process--including which institutions participated and the positions that they took--but voters can observe neither politicians' true preferences nor whether the decision taken was the correct one from an ex ante perspective. Moreover, we assume that while voters cannot observe whether a politician is biased, voters can infer (from the politician's party affiliation or other information) the likely direction of any such bias. …

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