The naive but clueless optimism of the academic

Cass Sunstein, the author of Nudge has a new paper out. In Nudge Sunstein argues that smart people in government ought to frame things in a way to trick people (nudge them) into making decisions that the clerisy thinks is good for them.

He's back.

Abstract:
“Partyism” is a form of hostility and prejudice that operates across political lines. For example, some Republicans have an immediate aversive reaction to Democrats, so much so that they would discriminate against them in hiring or promotion decisions, or in imposing punishment. If elected officials suffer from partyism - perhaps because their constituents do - they will devalue proposals from the opposing party and refuse to enter into agreements with its members, even if their independent assessment, freed from partyism, would be favorably disposed toward those proposals or agreements. In the United States, partyism has been rapidly growing, and it is quite pronounced - in some ways, more so than racism. It also has a series of adverse effects on governance itself, above all by making it difficult to enact desirable legislation and thus disrupting the system of separation of powers. Under circumstances of severe partyism, relatively broad delegations of authority to the executive branch, and a suitably receptive approach to the Chevron principle, have considerable appeal as ways of allowing significant social problems to be addressed. This conclusion bears on both domestic issues and foreign affairs.

I am beginning to think that Sunstein is not the smart but naive fellow I have long considered him to be. He's getting to sound downright dangerous.

There's that tell in the abstract. Sunstein's diagnosis is that there is more extreme partyism than in the past and that is "making it difficult to enact desirable legislation." But desirable to whom? Our system makes it very hard to pass legislation which does not have a broad base of support (though notoriously some do slip through even with all the safeguards). If legislation is not broadly supported, that must mean it is not desirable to most people. What Sunstein, who perhaps is Jonathan Gruber's soulmate, appears to be suggesting is that the Constitution is rather a nuisance because it prevents passage of legislation which he considers to be desirable.

His solution to this diagnosis is "broad delegations of authority to the executive branch" and adoption of the Chevron principle. What is the Chevron principle you ask? So did I. It's basic meaning is that courts should defer to technocrats in interpreting and applying the law except where that application is blatantly illegal. So Sunstein's solution to legislative inaction (owing to fundamental disagreements among the citizenry) is to hand over power to the executive and to the experts. That has worked out so well in the past. Its nice to see progressive academics dipping back into the classics. What would Aristotle call this form of government advocated by Sunstein? A dictatorship? An oligarchy? An aristocracy of the intellectual elite? Not an Aristotelian term, but perhaps a technocracy?

Sunstein as a postmodernist, critical theorist doesn't sound quite right. However, abandonment of: rule of law, consent of the governed, natural rights, checks and balances, personal agency, etc. are all hallmarks of those stepchildren theories of Marxism.

That inclination to hand over decision-making to the "elite", whether by IQ or birth or social standing, has always been a tendency in Europe. In the US there has long been an observable inclination to disavow that there are betters. There are only citizens and there is a system of government that ensures that everyone's voice is heard and that the rights of minorities are protected from the elites and the mobs. It is these differences that underpin Jean-François Revel's observation "that the dark night of fascism is always descending in the United States and yet lands only in Europe.”

Consent of the governed holds those with fascist inclinations in check. It probably helps that those who are governed, in the US, are also well armed courtesy of the Second Amendment, a probably underacknowledged form of check and balance.

I try and make sure that I read a range of opinions, but the abstract put me off. None-the-less, I downloaded the pdf. It follows the abstract pretty closely, fleshing it out with some bits and pieces of data. But it is pretty easy to pinpoint the weakness in Sunstein's argument. There are two critical passages that undermine his argument.

What I am urging here is that many disagreements are not really about values or partisan commitments, but about facts, and when facts are sufficiently engaged, disagreements across party lines will often melt away.

This is simply nonsense. There is a pretty broad and deep pool of research that suggests that it is very hard, and very rare to get people to change their minds about an issue, policy, or course of action simply by providing them with more and better information. Sunstein has to be aware of this body of research. If aware, though, he can't make the above assertion.

I think Sunstein also glosses over the issue of values. It is not, in my experience, the values that create problems, so much as the relative weightings in an environment of constraints. We can, and usually do, all agree that security, education, economic growth, health, liberty, freedom of speech, etc. are all good things. It is not the goals on which people usually disagree, it is the relative prioritization and the associated trade-offs. Some people value security above all else and are quite comfortable trading off liberty and rights for more security. Others value security, but are quite willing to accept greater risk in order to have more freedom of speech. Facts won't make much difference on the prioritizations and even less on the acceptable trade-offs between multiple good goals. Sunstein is simply wrong in making this assertion.

The second assertion that highlights the weakness of Sunstein's assertion is this:

Broad delegations to the executive branch make a great deal of sense, at least (and this is an important proviso) if officials within that branch can be trusted to make decisions with careful reference to the facts. In my view, institutional characteristics of the executive branch justify a degree of trust, at least as a general rule. The reason is that the executive branch – again as a general rule – tends both to have a great deal of technical expertise and to treat technical issues as they should be treated. Ironically, it has a degree of insulation from day-to-day politics, enabling it to focus on questions as specialists do. To the extent that this is so, there are significant advantages in allowing the specialists to do their work, subject of course to ultimate legislative control, but not to the day-to-day conflict made inevitable by partyism.

IF "officials within that branch can be trusted to make decisions with careful reference to the facts." That's a mighty big IF.

We know Sunstein trusts the Executive and the experts to make the right decisions. That makes sense. He is part of the body of experts and is occasionally also part of the Executive. What about the public? According to Pew Research, only 19% of the public trusts government to always or most of the time do the right thing.

After the NSA disclosures, Lois Lerner scandal, Gibson Guitars, IRS sharing of personal information with the White House, etc., is it any wonder that there is such a high level of mistrust? And given those scandals, why would Sunstein believe that the future behavior of government will be better? If you accept Sunstein's condition that his argument is predicated on the trustworthiness of government, then you have to accept that that condition is not met and therefore this argument is simply anemic speculation with no substance. Even by the apparently lax standards of the The Rolling Stone, this argument wouldn't pass muster in most publications.