Rule Breaking and Political Imagination

Kenneth A. Shepsle

• Publisher: University of Chicago Press
• Year: 2017
• Print ISBN: 9780226473215, 9780226473185
• eBook ISBN: 9780226473352
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

"Imagination may be thought of as a 'work-around.' It is a resourceful tactic to 'undo' a rule by creating a path around it without necessarily defying it. . . . Transgression, on the other hand, is rule breaking. There is no pretense of reinterpretation; it is defiance pure and simple. Whether imagination or disobedience is the source, constraints need not constrain, ties need not bind."
           
So writes Kenneth A. Shepsle in his introduction to Rule Breaking and Political Imagination. Institutions are thought to channel the choices of individual actors. But what about when they do not? Throughout history, leaders and politicians have used imagination and transgression to break with constraints upon their agency. Shepsle ranges from ancient Rome to the United States Senate, and from Lyndon B. Johnson to the British House of Commons. He also explores rule breaking in less formal contexts, such as vigilantism in the Old West and the CIA's actions in the wake of 9/11. Entertaining and thought-provoking, Rule Breaking and Political Imagination will prompt a reassessment of the nature of institutions and remind us of the critical role of political mavericks.
 

Part I

Basic Ideas

· 1 ·

Rule Breaking1

Introduction

Imagine we are on Capitol Hill in early January of an odd-numbered year. Congress is about to convene, the even-year election having been decided the previous November. But is it a new Congress? As we will see, this is a constitutionally controversial matter, one that lies at the heart of more abstract matters concerning the nature of institutions of self-governing groups.

For the House of Representatives, this is a settled matter. The previous House had adjourned sine die before the election and, from a constitutional perspective, is now an entirely new body. The newly convened House will operate under “general parliamentary law” until it has sworn in its members, elected a presiding officer, and adopted standing rules.

For the Senate, on the other hand, this is not a settled matter. For two-thirds of the senators, the election of the previous November in no way interrupted their respective careers. They are sitting senators who were not “in cycle” for the election—their staggered terms did not require them to face contract renewal in the just-concluded election. Under one constitutional view, this Senate is the same collective body as the one that existed before the election; it never adjourned permanently (it recessed), and only a portion of its membership may have changed. More generally, the Senate of time t is the same as the one of time t – 1. By induction, a current Senate is the same body as the one that convened on March 4, 1789! There is never a new Senate. This is the continuing-body theory of the Senate (Bruhl 2010).

The continuing-body theory has interpretive consequences for rules that follow from several constitutional and statutory provisions. The first is Article I, Section 5 of the Constitution. This reads in part: “Each House may determine the Rules of its Proceedings. . . .” That is, each chamber is a self-governing group. The Constitution is otherwise modest in restricting internal features of each chamber.2

The second provision is a standing rule, authorized by the Article I, Section 5 rule-making requirement. Rule V of The Standing Rules of the Senate states:

1. No motion to suspend, modify, or amend any rule, or any part thereof, shall be in order, except on one day’s notice in writing, specifying precisely the rule or parts proposed to be suspended, modified, or amended, and the purpose thereof. Any rule may be suspended without notice by the unanimous consent of the Senate, except as otherwise provided by the rules.

2. The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.

A third provision, also a standing rule of the Senate, prescribes how standing rules may be amended as permitted by Rule V. According to Rule XXII.2, if sixteen Senators sign a motion to bring debate on any measure to a close (cloture), then the presiding officer

shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question: ‘Is it the sense of the Senate that the debate shall be brought to a close?’ And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn—except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting [emphasis added]—then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

As a self-governing group, in sum, the Senate may formulate its own rules of procedure as well as rules governing the revision of those rules (Article I, Section 5 of the Constitution). However, absent such rule-governed amendments to the rules (requiring majority support to pass but two-thirds support to close debate as specified in Rule XXII.2 of the Senate’s standing rules), the rules of one Congress continue to the next (as specified in Rule V.2 of the standing rules).

Now imagine the following hypothetical exercise.3 At the opening of a new Congress, the majority leader, who, according to Senate rules, possesses priority in recognition, rises in the well of the Senate and announces, “As the Senate is not a continuing body, its first order of business, under Article I, Section 5 of the Constitution, is to select standing rules for the new Congress in accord with general parliamentary procedure. I move the readoption of the standing rules of the previous Congress, with two exceptions. Rule V.2 is deleted. And the special treatment given to cloture as applied to amendments to standing rules in Rule XXII.2 [italicized in the previous paragraph] is removed.”4

After this motion is read, chaos breaks out in the chamber. The presiding officer, the vice president, gavels the chamber to order and recognizes the minority leader who, with great agitation, seeks recognition. “I rise to make a point of order. The Senate is a continuing body and thus is governed by the rules today that were in effect in the last session, not by general parliamentary procedure. This is clearly stated in Rule V.2. Thus it is possible to revise the rules only in compliance with Rule XXII.2, even if the objective is to revise said rule.” The key question to be ruled upon by the presiding officer is whether the previous Senate can bind its successor (as Rule V.2 would seem to do).

Because the majority leader has invoked a constitutional basis for moving to adopt rules, the presiding officer would normally yield to the norm of not ruling on a constitutional point him- or herself; instead he or she would entertain a motion to table the point, thus allowing the fate of the minority leader’s intervention to be determined by the full Senate. If the motion to table succeeds (thus rejecting the minority leader’s point of order), the majority leader’s motion to adopt new rules then becomes the unfinished business before the Senate. If the motion to table fails, then the majority leader’s motion is effectively off the agenda.

A second key question arises—if the motion to table succeeds, is the subsequent unfinished business (the majority leader’s motion to adopt rules) to be debated under the old Senate rules or according to general parliamentary procedure? The presiding officer rules that if the point of order is tabled, the Senate will proceed immediately to the majority leader’s motion under general parliamentary procedure. The minority leader then appeals the chair’s ruling, arguing that it makes no sense to consider the majority leader’s motion under general parliamentary procedure because this is precisely what the majority leader’s rules-change motion aims to establish but has not yet done so; the motion thus must, in the humble opinion of the minority leader, be taken up under existing Senate rules. That is, the majority leader’s motion is predicated on the Senate not being a continuing body but, in the minority leader’s view, until that is established, the Senate must operate under the old rules, not general parliamentary procedure. When the appeal of the presiding officer’s ruling is put to a vote, a majority votes to sustain the ruling. (Senate majorities rarely overturn rulings of the presiding officer.) The minority leader’s objection is thus tabled, his or her appeal defeated, and the majority leader’s motion is taken up under general parliamentary procedure. A simple majority then approves his or her motion. Voilà! A revision of the rules—in effect a reduction in the threshold to end filibusters on amending the rules from two-thirds to three-fifths—has been accomplished by a simple majority. Moreover, a precedent has been set that the Senate is not a continuing body.

This is just a story, one in which we have dived deeply into the weeds of Senate procedure. However, it illustrates several points that will be the focus of this essay:

• Self-governing groups create the rules that govern their proceedings.

• Self-governing groups may change their rules—suspend, amend, override, even disobey.

• Let me repeat this last point. Self-governing groups may even flout the rules to which they have previously agreed (as they did in regard to Rule V.2 in the illustration just given).

Two Views of Institutions5

Douglass North (1990, 3; see also Mantzavinos, North, and Shariq 2004) is famously associated with characterizing an institution as a game form.6 To repeat his famous definition, an institution is “the rules of the game in a society or, more formally, . . . the humanly devised constraints that shape human interaction.” North urges us to think flexibly about this definition. At one end of the continuum are informal constraints: taboos, customs, conventions, codes of behavior, and traditions. At the other end are formal rights, responsibilities, and constraints like those found in contracts, official procedures, and constitutions. An institution specifies the players whose behavior is bound by its rules; the actions the players must, may, must not, or may not take (Crawford and Ostrom 1995); the informational conditions under which they make choices; a script of their timing; the impact of exogenous events; and the outcomes that are a consequence of these choices and events. The game form is transformed into a game when players are endowed with, and thus motivated by, preferences over outcomes.

The game-form view of institutions, one to which I adhered in earlier work on the role of institutional structure on political outcomes (Shepsle 1979), is silent on three significant matters. First, this approach says little about the origins of institutions. Institutional arrangements are taken as exogenously given with the objective of tracing the implications of these rules for behavior and outcomes. Attention is riveted on the subsequent play of the game governed by these rules and the outcomes that arise from this play, not on the origins of the rules.7 Second, there is little consideration given to the durability of rules. Because they are taken as exogenous, they are not, themselves, part of the play of the game. They are assumed to endure. Third, the constraints entailed in the rules are regarded as self-enforcing. There simply is no provision made for deviating from the rules. An agent, at any node in the game tree to which he or she is assigned, has a fixed repertoire of alternative actions as specified by the branches emerging from the node, and must choose from among these.8 It would never occur to a majority leader of the US Senate, staring into the mirror in the morning, to contemplate announcing, contra Rule V.2, that the Senate is not a continuing body. This is not an available option.

The equilibrium view of institutions—an alternative perspective associated with the work of Schotter (1981) and Calvert (1993, 1995a, 1995b)—does not focus primarily on institutional origins either, but it does have something to say about their durability and prospects for departures from their strictures. According to this approach, the game form itself is part of the equilibrium.9 What North took as exogenous, Calvert, Schotter, and Greif view as the endogenous product of strategic action in a more primal environment. There are really two parts to equilibria of interest: the outcome induced by play under a particular body of rules (institutional or structure-induced equilibrium; Shepsle 1979)—this is the one on which North focuses—and the one arising in the primal environment where rules are chosen and maintained (equilibrium institution; Shepsle 1986). The combination of these two elements is what Calvert, Schotter, and Greif have in mind as an institution—it is “an equilibrium of behavior in an underlying game. . . . It must be rational for nearly every individual to almost always adhere to the behavioral prescriptions of the institution, given that nearly all other individuals are doing so” (Calvert 1995a, 58, 60). Or as Greif (2006, 136) observes, “institutionalized rules and the beliefs they help form enable, guide and motivate most individuals to adopt the behavior associated with their . . . position [in the game] most of the time.”

This means that the rules themselves are part of the equilibrium. Perturbations in the primal environment may undermine the existing rules equilibrium in any of several ways. A shock may change individual preferences over institutional arrangements, thus diminishing support for the existing regime. Alternatively, a shock may alter beliefs about the faithfulness of others to existing rules, thus causing one to recalculate his or her best response to existing rules and practices. Finally, a shock may modify one’s own beliefs about how the world works and thus one’s willingness to go along with existing institutional practices or to defect instead. In any of these ways, opportunities and incentives to change the rules may arise. Consider an exogenous change in constituency preferences caused, say, by the bursting of a housing bubble, a technological development, hyperinflation, a natural resource discovery, a commodity price change, or an environmental disaster. This may change either the composition of legislators, or the preferences or beliefs of existing legislators, which, in turn, may provide the circumstance for changing institutional rules—say, the elimination of the filibuster in the Senate.

Many institutions provide explicit avenues for suspension or revision of existing rules. This has already been mentioned for the Senate—Rule XXII describes how the Senate may amend its standing rules. Moreover, the Senate allows for suspending any of its rules by unanimous consent. The House, on the other hand, devises routine procedural routes around its standing rules, either by a suspension-of-the-rules motion (requiring two-thirds support of those present and voting) or by the majority adoption of a special rule brought to the floor by the Committee on Rules. The former allows a move directly to a vote, while the latter replaces existing rules with a specially crafted procedure. In either case, the procedure applies provisionally to take up a specific measure after which existing rules are put back in play.

There is a second methodological possibility this broader view of institutions permits. The North view of institutions does not countenance departures from the rules. They are assumed to be obeyed, although this remains implicit. In the Calvert-Schotter-Greif formulation, on the other hand, deviation is entirely possible. The Senate majority leader can announce that the Senate is not a continuing body, even though Rule V.2 declares that it is (so long as a majority is prepared to support this departure). The Senate is a self-governing group and can depart from its rules as it wishes. The more comprehensive equilibrium view of institutions associated with the Calvert-Schotter-Greif approach does not assume that compliance with the rules necessarily occurs, and therefore allows for deviation.10

Endogenous Procedures to Change Rules

There are multiple mechanisms incorporated into the rules by which those rules may be changed. That some such mechanisms exist at all is partially due to the self-awareness of institutional designers at a constitutional moment that they are not omniscient. Mechanisms are provided ex ante to fill unanticipated gaps, to adapt to changing circumstances, and to deal with circumstances as they arise that could be imagined ex ante but are too unlikely or too convoluted to accommodate at the rules-selection stage.

One conspicuous instance of these is a constitutional clause that describes the method by which a constitution may be amended. This is the role played by Article V of the US Constitution. At the constitutional convention of 1787, many of its participants made clear that they sought a less-than-unanimous procedure, given the unanimity straitjacket into which the Articles of Confederation had placed the existing regime, but one that may not be exploited too easily.

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Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• What’s This Book About?
• PART I.  basic ideas
• PART II.  institutions, rule breaking, and imagination
• PART III.  bits and bobs
• References
• Index
• Footnotes