Cochran’s Victory and the Tragedy of the Budget Commons

The recent Republican Senate primary in Mississippi no doubt turned on many factors such as the character of the candidates. But the victory by Thad Cochran, the establishment Republican Senator, also underscores an unfortunate consequence of our system of government.  The Constitution itself creates a structure that favors senators who promise to direct federal dollars to the state rather than to limit government spending.  This structure facilitated the central premise of Senator Cochran’s campaign:  with his seniority he could bring home the bacon.

The Constitution requires that Senators be elected from each state and thus Senators are more responsive to state rather than national constituencies. As a result, each Senator (and member of the House of Representatives for that matter) has an incentive to secure pork barrel legislation for his state despite any economic losses to the nation. And his constituents will  generally not object, because almost all of the money to pay for in-state benefits comes from other states.

In short, the Framers’ decision to make representation wholly local rather than to have legislators elected from a national list, as is the case in some other democracies, creates a tragedy of the commons.   Each representative will overgraze the federal budget at the expense of the nation’s prosperity. Sadly, the infamous Bridge to Nowhere was a feature, not a bug of our constitutional republic.  The feature also explains why Congress as whole remains unpopular, but yet most individual members of Congress are reelected.

This inherent defect in our constitutional structure has three policy implications.  First, collective decisions by members of Congress to limit the ability to bring back benefits to their state are to be welcomed. The anti-earmarking rules enacted by recent Congresses, largely at the behest of Tea Party Republicans helped correct this constitutional defect.  Nobel prize-winning economist Elinor Ostrom showed that the tragedy of the commons can be overcome when participants set rules or establish norms that limit wasteful behavior.  Earmarking prohibitions provide an example of this potential in the context of the federal government.

Second, while many complain about campaign contributions and spending originating outside the state, such funds can help correct the tendency for overspending.  Outsiders are more likely to focus on the national benefits provided by limited government.  To be sure, some outsiders may urge bigger government for ideological reasons, but the net effect of outside influence is likely to dilute the local influence, which will be relentless in favor local spending.

Third, this structure of the Constitution underscores the importance of the President in limiting spending.  The President is the single elected federal representative accountable to a national constituency.  In fact, it may be rational for voters to elect a President who favors lower spending  than they themselves do in order to counteract an  inherently free spending Congress.

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His recent book, Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the co-author with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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Comments

  1. R Richard Schweitzer says

    What a surprise to see no mention of what occurred 101 years ago on April 8 past.

    The “Framers” did in fact provide for a legislative body whose function would be to mediate the “representative” legislative body in its regional and state specific interests; hopefully by reason of its composition and means of selection to mediate as a permanent body of the whole in the broader interests of the union of the states.

    While regional and specific state (and industrial) interests were never outside the consideration of the additional mediating legislative body, that action of 101 years ago created an additional representative body. We live with it today. It is questionable whether or not the “additional representation” has benefited particular interest more than the broad interest of the citizens of a particular state; or perhaps the personal interests of those “additional representatives.”

    Could we return to the status quo ante? It would certainly put the cat among the pigeons and produce droppings as far as the Smithsonian. It would be worth a shot to try.

  2. Glen says

    The “tragedy of the budget commons” could never have developed if the Supreme Court had not gutted the General Welfare clause in Helvering v. Davis.

    Some problems are both easier and harder to solve than they appear.

  3. gabe says

    Prof. McGinnis apparently is unfamiliar with the ‘original” role of the Senate and only recognizes the diminished state into which it has fallen – a benefits collection agency for the home state. this is quite different from what the Framers intended. The Senate was to be the deliberative body, yes, but most importantly, it was to be the brake on democratic excesses arising from the popularly elected House. The Framers repeatedly cautioned against the dangers of democracy and were well aware of the dangers posed by a completely popularly elected government.
    As Richard points out, the passage of the 17th Amendment, introduced dramatic changes in the composition and role of the Senate – all of which I would argue have been detrimental to our country.
    Yet, it was much more than this – if the “commerce clause” had not been expanded in a fashion not inconsistent with the “expansion” following the Big Bang, we may not have had a Senate that would stick its nose into every nook and cranny and come up with earmarks. It would simply be inconceivable that they would deign to legislate on such issues as they would recognize that there was no constitutional grant of power for such action. Look to the early battles over “internal improvements” and then compare that with todays Senate and its’ role in Obamacare.

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