Waldron’s critique of legislative intent finds support from an unlikely source. Political scientists and others working out the implications of social choice theory for the legislative process argue that the legislature has no intention because the legislative process does not produce coherent collective choices, which could be termed the will of the majority. Instead, agenda-setting and procedural rules determine the output of the process.
Kenneth Shepsle, a senior political scientist, is the author of the leading article on social choice theory and legislative intent.125 He argues that Arrow’s impossibility theorem entails that ‘[legislative intent is an internally inconsistent, self-contradictory expression [that] has no meaning’.126 (Many legal scholars have deployed similar arguments.127) Arrow’s theorem is in part a generalization of Condorcet’s voting paradox.128 The paradox is that if a group of three or more persons adopts a
majority voting procedure to decide amongst three or more options, the majority vote may fail to yield a result. That is, the majority vote may cycle amongst the alternatives. For example, a majority may vote for A over B, a different majority may vote for B over C, and another majority may vote for C over A. There is thus no unique majority vote winner. The group either does not choose or its choice is settled by something other than what the majority wants, such as the order in which the alternatives are considered. Arrow generalizes this finding to show that no collective decision-making procedure that meets certain minimal fairness conditions can avoid the possibility of cycling.
I do not propose to survey the vast literature on Arrow’s theorem and social choice theory. Instead, I outline Shepsle’s account of, and argument from, Arrow.
He explains the theorem’s findings in this way:
In the context of majority rule voting, this theorem implies that it is not possible to guarantee that a majority rule process will yield coherent choices. Put differently, if the preferences of the members of a voting body display a modicum of diversity, then majority voting need not generate a transitive ordering of the alternatives available for choice; the alternatives cycle, even though individual preferences are quite coherent. Indeed, incoherence will often take the form of the nonexistence of a collectively ‘best’ alternative; the final outcome may be arbitrary (for example, a function of group fatigue) or determined by specific institutional features of decisionmaking (for example, rules governing the order of voting on motions). In either case we may be able to provide positive explanations of these results, but rarely will we also be able to provide normative
justifications.129
He equates coherence with transitivity, so that a collective choice is coherent if it is the uniquely best option, the only option the majority prefers. The italicized term, ‘normative justifications’, it later becomes clear, refers to majoritarian preference satisfaction. The shift from ‘need not’ in the second sentence to ‘will often’ in the third is important. Various scholars, including Farber and Frickey,130 observe that legislatures are not as unstable or indecisive as one would expect if alternatives often cycled. (Waldron cites Farber and Frickey’s later work for this proposition.131) However, Shepsle argues that this observation is confused. Arrow’s theorem entails not constant indeterminacy or instability but rather that cycling is resolved arbitrarily, that is, without a normative, for which read majoritarian, rationale.132
Shepsle asserts that ‘the Arrowian dilemma’ has two implications.133 The first is that there is no unbeatable policy, which is to say that there is always another possible proposal that could win majority support. The second is that the outcome turns on the voting order, so that a clever agenda- setter can produce any of the possible majority results. It is unclear whether Shepsle is asserting that legislative preferences always cycle or whether he just aims to explain the situation when they do cycle. The latter would avoid begging the question of frequency. However, the former reading seems
more likely, as he asserts, in a footnote, that it is very rare for the preferences of legislators to be ‘single-peaked’, in which case there would be a unique majority winner.134 And the rest of the article assumes cycling is ubiquitous.
The legislature enacts a bill on majority vote. Shepsle says that ‘[it] is evident that Congress is composed of many majorities’.135 What this entails is that when a bill is enacted, a particular
majority supported a particular change to the status quo. It is unclear, Shepsle says, why this majority prevailed rather than any of the other majorities that could have been assembled. He suggests that the reason may be either interest-group action or that this majority had some procedural advantage. His point is that:
Many policies, in principle, can topple an existing status quo. That some are more likely than others to actually do so is dependent on idiosyncratic, structural, procedural, and strategic factors, which are at best tenuously related to normative principles embraced by democratic theorists and philosophers.136
The policy that a majority votes to enact is largely the result of what Mashaw terms ‘the institutional matrix’,137 that is, the internal structure that determines how the legislature votes on various policy proposals. Shepsle takes it to be obvious that if the outcome that the legislature produces turns on procedural or strategic factors rather than any unique majority preference, the outcome lacks legitimacy. He asserts this point repeatedly throughout the article.138
Shepsle argues that there are no reasons that explain any particular majority’s policy choice. Each legislator has reasons, but the majority does not: many legislators make up the winning majority and ‘their respective reasons for voting against the status quo may well be as varied as their number’.139 Later, he argues that legislators reveal little when they vote for a motion.140 The nominal logic of the vote, he says, is that the legislator prefers the world in which the motion passes to one in which it fails. But this is consistent, he maintains, with the legislator acting to express: a personal taste, a value judgment, a reflection of the desires of particular constituents or the wishes of a majority of her constituents, or consideration for the interests of her benefactors, or some mix of these. (It is unclear why he focuses on what one expresses by way of one’s vote rather than what one acts for.141)
Strategic action also complicates matters, because legislators have good reasons to vote not to express a sincere preference but to act strategically, changing the order of decision for some further end. Thus:
With (n + 1)/2 or more individuals in the winning coalition, there is not a single legislative intent, but rather many legislators’ intents. Congress is a ‘they’, not an ‘it’. Legislator A may have voted for an amendment that ultimately became part of the winning policy because he favored the ‘plain meaning’ of the text. Legislator B, on the other hand, may have voted for it because he thought (incorrectly as it turned out) that the amendment would undermine support for the final bill or draw a presidential veto, thereby allowing the status quo to survive. Finally, Legislators C, D, and E may have supported the amendment, disinterestedly, as a reasonable compromise among competing interests. To ask, in this circumstance, what Congress ‘intended’ is to invite a non sequitur.142
Shepsle concludes that the winning majority consists of legislators acting for different reasons, to express different preferences or acting strategically. There is a majority for this bill, but the majority does not make a coherent collective choice for reasons in the way that a single person does.
He now turns to explain the internal structure of Congress that shapes outcomes. The proposals on which Congress votes are largely formed and selected by subsets of legislators, members of the committees that exercise disproportionate agenda power. A bill that a committee forms enjoys
various advantages.143 It has the lead position in the voting order, because it is the principal motion before the house. The committee bill also frames deliberation, with debate largely centring on how the bill compares to the status quo and how or if that bill should be amended. The bill may also enjoy special procedural protections, such as restrictions or even prohibitions on amendment. The agenda- setters thus exercise proposal and veto power, in that they help determine on which bills the house will vote.144 Committee membership is a function of seniority rather than election. The majority retains capacity to change the rules allocating committee places, but the exercise of this capacity is costly, and so in practice agenda-setters have wide discretion.145 What this means is that:
… there is no strong or obvious relationship between the exercisers of agenda power and the preferences of majorities. To the extent such exercises of agenda power affect the content of legislation, as I claim they do, they cannot be traced to
majoritarian preferences. Thus, as noted, a relationship between the content of legislation and the preferences of majorities is attenuated; the capacity of a bill to enjoy the normative gloss of majoritarianism is likewise diminished.146
The committee structure is central to how Congress proceeds. Other procedures are also highly
significant, including the rules that structure legislative debate (who may speak and for how long) and the resolution of differences between House and Senate. Committee members occupy privileged positions in relation to each procedure. Shepsle observes that these procedures ‘have a number of salutary effects on the process of legislating, but they also diffuse any bright line that might otherwise connect the preferences of majorities to final outcomes’.147 That is, the ‘impact of procedures, like the impact of agenda setters and multiple majorities, loosens the coupling between legislative outcomes and majority preferences’.148 Shepsle does not detail these ‘salutary effects’ and indeed he never explains what reasons legislators might have to adopt and maintain these procedures. At best, he implies that legislators need agenda-setters to resolve cycles, but he always says explicitly that this resolution lacks legitimacy because it departs from majority preference.149
Shepsle concludes that the most that one may infer from a majority vote for a bill is that a majority preferred the bill to the status quo. It is not clear why and indeed each legislator may have different reasons for his preference. The outcome does not ground any inference about what the majority wants in relation to bills that were not put before them. The available evidence, including ‘legislative
history, does not permit us to differentiate the “will of the majority” from the machinations, both ex ante and post, of agenda setters’.150 It is a mistake then to think that the legislature intends anything, specifically it is to ‘commit a fallacy (the false personification of a collectivity)’.151 The problem, Shepsle insists, is that even if the legislators are reasonable, ‘it is still fruitless to attribute intent to the product of their collective efforts. Individual intents, even if they are unambiguous, do not add up like vectors. That is the content of Arrow; that is the malady of majority rule’.152
The argument from social choice theory establishes that the act of the legislature is not a direct expression of majority preferences, which (often) cycle, but is instead transformed by the institutional structure of the legislature, in which agenda-setting, limits on time, and strategic action (including logrolling) are of central importance. These conclusions are very important for understanding legislative action, and I explore them further in chapters 4, 6 and 8. However, Shepsle’s argument only refutes an account that provides that legislative intent is the true will of the majority, understood to be a unique majority preference. Shepsle assumes that this is the only way in which one could ‘attribute intent to the product of their collective efforts’. Indeed, this way of framing the point further begs the question, for it assumes that the intent is attributed to the action—to the product of their efforts (a formulation that studiously avoids explaining what exactly the legislators do together)—
rather than recognized in the action, in the way that the legislators jointly act.
It is not sound to understand the intention of the legislature to be the aggregate of the intentions of the legislators. Attempts to aggregate individual intentions are arbitrary and ungrounded precisely
because the aggregation is detached from the way in which legislators act together, which is to say from the action of the institution. I explain further in chapter 3, section I why joint intention is no mere aggregation. However, the forceful criticisms levelled at the aggregative conception of legislative intent do not refute the alternative possibility that the legislature itself is capable of forming
intentions. Indeed, the strength of the sceptical arguments is very often that they draw one’s attention away from what each legislator intends for his part only towards what is done together. In the
chapters that follow I develop this possibility further, outlining in chapter 3 how groups form and act on intentions, arguing in chapters 4–7 that legislating requires intentional action, and drawing these lines of argument together in chapter 8 to explain legislative intent.