Voting with intensity.

• Author: Levmore, Saul

1. INTRODUCTION

   Imagine that the following announcement is made two weeks before the next presidential election:

   We are supporters of candidate B who, as you know, is trailing G in the polls by four percentage points, 52-48. But we feel strongly about our candidate and the policies he supports. We hope that some of you who have planned to vote for the front-runner, G, or not to vote at all, can be convinced to vote for B. Toward this end, we promise that if B is elected we will contribute $1 billion to the environmental causes that G supports. This sort of promise is probably unenforceable, and it may even be criminal to make an announcement of this kind.(1) The hypothetical offer by some of B's supporters represents an offer to buy votes, or at least to induce some particular voting behavior, and vote buying (and selling) is considered antithetical to democratic principles in both popular and academic accounts. But there are a number of reasons to re-examine the conventional view of vote buying and selling. First, the potential for computerized voting and trading of voting rights means not only that new forms of vote selling are likely to appear but also that restrictions on vote trades will be feasible. If, for example, a seller could condition a sale on a specified use by a buyer, then some vote trading or refined proxy assignments might become quite attractive. Second, there is room for an improved explanation of the conventional ban on vote selling. Part of my explanation builds on an understanding of a collective action problem among sellers of certain kinds of goods. This explanation suggests where vote trading might be (and has been) tolerated, and it also provides clues for a general theory of inalienability. Finally, the conventional view pays insufficient attention to the likelihood of relatively intense voting preferences. Conventional markets enable intense preferences to be satisfied because participants can bid or substitute for things they very much want. Indeed, there are very few arenas where intense preferences cannot be satisfied. In most settings, however, wealth empowers players to satisfy their preferences, and this presents a problem where voting rights are concerned because these rights are often exercised precisely where we have decided to make decisions through politics rather than markets. The obvious question in the case of voting rights is whether intense preferences can be accommodated without shifting enormous power to wealthier citizens.

   Part II of this article sets out a brief theory of inalienability and locates voting rights in this theory, or explanation, of inalienability. Part III explores collective action problems among voters and works with the idea of likely and unlikely voters as separate groups. Likelihood (of voting) may be, but need not be, strongly correlated with intensity. An immediate payoff is that the collective action angle illuminates recent changes in corporate law, where vote selling is now sometimes tolerated. I suggest that these collective action problems offer an improved explanation of our present rules and intuitions even outside of corporate law. At the same time, they suggest some possibilities for change. Part IV examines the idea of accommodating intense preferences. In large-scale general elections, collective action problems are likely to doom a market or other means of extracting information about intense preferences. Indeed, there is the possibility of obtaining perverse results, and this is an outcome that (as we will see) seems abhorrent. Still, there may be room for careful innovation, with some market-like mechanisms, aimed at capturing information about intense preferences.

2. INALIENABILITY, WEALTH, AND THE SURPRISING ROLE OF MARKETS

   1. The (Sensible) Conventional Hostility

      Inalienability requires explanation. Parties who choose to trade their goods and rights will virtually always be made better off by such trades. Legal rules against these trades are therefore unusual, not to mention inconsistent with conventional notions of liberty, and are likely to be motivated, or at least explained, by reference either to external effects on non-trading parties or to serious social policies.

      In the case of voting rights, there is something of a surfeit of plausible, but somewhat flimsy, explanations as to why it is illegal to sell or buy votes in general elections. Following some of the short-cuts cleared by Rick Hasen in an important recent piece, there is, first, the danger that legalized vote buying will benefit wealthy persons who may leverage their superior initial endowments into political advantage.(2) Implicit in this argument is either the idea of an imperfect capital market, for otherwise poorer people would borrow to win elections and then repay their loans with some of the fruits of political power, or the idea that politics is about things that markets can not or should not control. Vote selling might, for instance, lead to a different foreign policy or to a different public school curriculum even when these policies do not make their supporters economically better off. Second, there is the danger that a market in votes would make winning in politics yet more expensive and in this way put added pressure on winners, once in elected office, to extract payments from interest groups or to divert resources from the common good.(3) There is also the idea that voting is a kind of collective decisionmaking experience, greater than the sum of individual votes, so that something important is lost if an isolated voting right is sold for the individual seller's selfish gain.(4) Hasen labels these three explanations as equality, efficiency, and anti-commodification, respectively. The value of the over-abundance of explanations is that it illuminates the mixed reaction law sometimes has or should have to vote buying outside of general elections, because it is disputable whether the familiar arguments against vote buying in political elections are muted or absent.(5)

      These conventional arguments are, as I have already intimated, vulnerable. The equality argument is a bit hollow not only because it fails to distinguish voting rights from so many other goods--where there are wealth effects but where we normally think that poorer people benefit from their ability to trade--but also because present law permits indirect vote buying in the form of campaign contributions and expenditures. Money plays an enormous role in politics and it might be easy to allow some direct vote sales without increasing that role. It might even be possible that direct sales of votes would reduce the role played by wealth if only because low-income sellers might have the most to gain from the new asset, selling votes in some elections in order to buy votes in others. Wealth effects might also be held constant if vote selling was legalized with a cap on buyers' expenditures equal to the present limits on campaign spending.(6)

      The efficiency explanation, which posits that the likely increase in the expense of elections would result in an increase of post-election money diverted by elected agents, is much weakened by the observation that self-interested elected officials might extract as much benefit for themselves as possible regardless of the cost of gaining office. It is not obvious whether increasing the cost of a political campaign would generate elected officials who were better or worse agents of the electorate any more than it is clear whether increasing the compensation of elected officials would make things better or worse.(7)

      Finally, the anti-commodification argument, which focuses on the danger that vote selling would undermine the collective decisionmaking experience, suffers from something of a circularity problem. If legalized vote selling would bear positive effects or could be shown to benefit poorer citizens, then conventional intuitions about commodification would likely be reversed.(8) It may well be that the anti-commodification argument has a non-instrumentalist component, but this feature is difficult to isolate.(9) There are many arenas where market transactions seem to add to, rather than subtract from, the implicit value of the collectively sponsored asset. For example, public education seems neither demeaned nor particularly commodified by the presence of private schools with explicit tuition tags or even by disclosure and open discussion of per-student expenditures in the public schools.

      A different version of this argument might begin with a particular conception of democracy and show how vote buying (but not modest contributions to campaigns, for instance) is antithetical to this conception. But this is not easy to do. If, for example, one begins with a conception of democracy as a deliberative conversation about values that necessarily ends with some head counting (and also some judicial intervention in favor of core values despite a contrary majority vote), it is not obvious that vote buying need be abhorrent. If wealth effects can be controlled, vote trades might focus deliberation rather than supplant it. The hypothetical offer by supporters of the trailing candidate of a payment to environmental causes might, for example, serve to provoke discussion of environmental values. Price tags can defile many things, but they offer a kind of transparency that can promote honest discussion and decisionmaking. My aim in this article is to cast some light on aspects of vote buying, intense preferences, and political decisionmaking that will be useful for many, if not all, perspectives on the nature of democracy itself.

      Perhaps the most defensible or intuitive form of the anti-commodification argument stresses the communal nature of voting; a voting right is like an invitation to a party, and both are nontransferable for the same externality reason. One problem with this line of defense is that it leaves no room for intense preferences...