There is an old story about a man telling how he and his wife kept peace in the family. “She makes the little decisions, and I make the big ones,” he said. “For example, she decides where we will go for vacation, whether we should buy a new car, where the children should go to school, and so on; and I decide whether we should have price controls, whether we should build nuclear power plants, whether we should recognize Castro’s Cuba, and things like that. It saves a lot of arguments.”
Now, the home in this story may cry out for men’s liberation, but the decisions the husband is concerned with are indeed big decisions, and he, like all citizens in our democracy, is supposed to have a part in making them. Or is he? How are these big decisions supposed to be made under our form of government, and how are they actually made? What useful contribution can the average person make to the resolution of a complex problem involving highly technical matters understood only by the specialists in the field?
I hasten to say that I do not propose to give answers to these questions. The most that I can hope to do is to promote some serious thinking about decision processes and indicate some of the strengths and weaknesses of our governmental decision-making.
Plato seems to have rejected democracy as a form of government because he considered the average citizen incapable of adequate comprehension of the issues. In his theoretically ideal society, hoi polloi were to take on faith the goodness of the decisions of their specially trained and educated rulers. We, today, are not inclined to think such a society satisfactory or ideal. We are all, to some extent, from Missouri and know too well the fallibility and venality of some of those who have occupied positions of authority. These observations of ours do not refute Plato because he postulated an entirely different system for developing and choosing his aristocracy. Consequently, his guardians of the state could well be more believable than our politicians. Nevertheless, we would probably agree that “you can’t get there from here.” Our study of history and our experience tell us that some participation by the ordinary citizen is usually necessary to the validation and acceptance of significant decisions.
When decisions must be taken unexpectedly, such as the commitment to action in Korea in 1950, the move to rapprochement with Red China, and the 1971 price freeze, the effectiveness of the decision will depend in large measure on the extent to which the decision-maker has correctly gauged public attitudes on the subject.
Once we grant the desirability, indeed the need, for general participation in major decisions, we come back to the questions of how this can take place and how it can be meaningful. Often there are two sets of experts, each with respectable credentials of some sort, but reaching opposite conclusions. Analysis and evaluation of the opposing points of view would be difficult, at best, for the non-expert, but the problem is compounded by the fact that a large majority of citizens depend almost entirely on the journalistic media for their knowledge of the issues. Public presentation of the two points of view is very likely to be unbalanced for a variety of reasons, chief among which would be differences in the skills and efforts of the opposing factions in public presentation of their positions, and inaccuracies and bias in reporting by the media. I have a great deal of respect for the judgment of people generally, but they are under serious handicaps in trying to reach soundly based conclusions on many of our public issues.
Of course, we employ a representative form of government, and our elected legislators and government executives play a substantial part in decision-making. They are supposed to take the time and make the effort to inform themselves in some depth on the leading issues before them. They are also expected to reflect, in substantial measure, the views of their constituencies. When the analytical process and the district opinion poll point in opposite directions, the representative has to make a difficult choice. As a practical matter, he will weigh the strength of his feelings about his own judgment and the effect which his vote will have on his future chances for reelection. In starkest terms, the legislator will have to choose between what he considers best and what he deems a risk to his personal career: a difficult choice between rationality and self-interest.
But issues rarely present themselves in such simple terms. The politician may be justified on occasion in accepting the popular opinion as being wiser than his own first conclusion, and in any case, the public attitude is likely to be a significant ingredient in arriving at a rational conclusion.
Furthermore, the representative in government should not passively accept popular opinion. To some degree, it is up to him to help in the process of molding popular opinion. He has some special tools for this purpose, notably the investigative process, through which he can simultaneously inform himself and those members of the public sufficiently interested to follow what is going on. Skillful cross-examination can do much to resolve the problem of which expert to believe. As lawyers are fond of saying, cross-examination is one of the most powerful devices for getting at the truth. Nevertheless, it is also a means of badgering a witness if used unfairly. In court proceedings, there are rules to protect witnesses from the worst abuses, but these are not always respected in legislative hearings. The result is that legislative hearings and evaluations range from productive, through useless, to downright misleading and harmful.
Outside of such formal proceedings, our representatives and the general public are the recipients of volunteered advice and comment from an endless variety of sources. Some of these sources are pursuing only their own self-interest, some are more nobly motivated but equally narrow in their vision, and some are actually serious endeavors to reach an objective conclusion. All will relate their positions to the public interest in one way or another, even if only by the bold assertion that “What is good for X is good for the country.” All are subject to the inescapable bias, implicit and explicit, which arises from the particular background, experience, and motivations of the individual who volunteers. The question, again, is how to separate the wheat from the chaff.
With this sketchy view of the political decision problem in mind, it is well to consider decisions in more general terms. A fundamental assumption is the possibility of choice, i.e., the existence of free will. If, from some transcendental point of view, this is purely a deterministic world, then the decision-making process is a sort of illusion, and all we can do is describe conduct, not influence it by any act of will. Automatically, we reject the deterministic notion as robbing individual lives of inner meaning. Yet we have learned, most dramatically from Freud but also from a host of philosophers, that our thinking and our actions are governed by outside events and past experience to a much greater extent than we are likely to realize, and that our will—our inner decision-making power—is more effectively employed when we have more awareness of how it is influenced.
Decisions look to the future, of course, and decision-making involves all the uncertainties of predicting the future. If we are choosing between act A and act B, we would like to know all the consequences of A and B, compare the two sets of consequences, and choose the act which produces the more favorable result. Passing over, for the moment, the difficult problem of what standard the expression “more favorable” refers to, we could theoretically consider an endless sequence of effects from the choice of A, analogous to the spreading ripples from a stone dropped into the waters of a lake.
If we were omniscient, we could chart the effects for some appropriate period of time, but we would still have the problem that other decisions would be made by other people in that time interval and that they would be unpredictable, granted the existence of free will. We could cope with this in a fashion by assigning probabilities in some manner to the resulting uncertainties and deriving sets of future outcomes for A and B with degrees of expectation to provide some basis for comparison. Since we are not omniscient and cannot possibly know the true state of all the world at the time of decision, we could apply the same probabilistic approach to set up an array of possible factual starting points. Then we would base our decision on a comparison of sets of outcomes for A and B, encompassing a whole complex of initial fact probabilities and future event probabilities. The whole process quickly reaches unmanageable proportions, especially when the choice is not just between A and B, but among several alphabets of opportunities. It is no wonder that serious decision-makers are often indecisive, though it must be recognized that putting off a decision until tomorrow is really another decision choice to be evaluated with all of the positive choices.
In a world where everything is related to everything else and the consequences of a given act are endless, some bounds have to be found for the decision-making process to avoid complete paralysis. A place to start is to specify the aim or goal of the decision. This establishes the criteria which will govern the decision choice, and this in turn means that only those consequences relevant to the criteria need be considered. Furthermore, we may restrict the examination of consequences spatially or geographically and temporally, or to a given time period.
I take an example from the energy field because I have some familiarity with the subject. The Federal Energy Administration is in the process of deciding on a plan of action to move the United States toward self-sufficiency in energy resources, with a goal of achieving a substantial degree of national independence by 1980. Nuclear fusion has been eliminated as a possible source of energy by that time because of a judgment that it will take decades, rather than years, to overcome the technical obstacles to the theoretical possibilities of the fusion process. Solar energy is also regarded as having a very limited potential in this time frame. Hydroelectric power could not contribute substantially, even in the long run. In fact, it appears that nuclear fission processes and coal, with some supplementation by potential offshore drilling for oil and gas, are the only sources that offer promise of moving us substantially toward our goal.
We should recognize, however, that there is always danger in looking at a problem too narrowly. Energy sufficiency means having enough energy, and it is necessary to ask, “Enough for what?” Can we really do with less energy than we have been trying to plan for? The FEA is asking this question, and conservation in the use of energy is part of its program. The FEA’s problem is difficult enough if it is simply a matter of trying to bring United States energy supply and demand into some sort of balance, but it cannot be so closely confined. Cost, in the sense of how much of our labor and material resources can be diverted to this end without seriously undesirable effects on other aspects of society, is surely an element to be considered. Environmental detriment is another. Air pollution effects, strip mining problems, and many other factors will have to be taken into account.
We have not always been so comprehensive in our governmental decision-making. For years, the only criteria seriously considered in deciding whether to authorize construction of an electric power plant were the need for the capacity and the impact on the customers’ power bills. What we have now learned to call “externalities” were largely ignored. Today, however, the quantity of air pollution, the effect on water quality, safety, and the aesthetic impact must be considered.
The consideration of these different aspects of the public interest has been parceled out to a number of public agencies, each with its own goals and each developing its own expertise. The resulting fragmentation of decision-making power has been far from satisfactory. To the utilities, the large number of governmental agencies to satisfy has been a formidable and frustrating gauntlet to run. To environmentalists and conservationists, the lack of any overall evaluation has made it extremely difficult to determine the cumulative consequences of the proposed action and has given little opportunity for adequate consideration of alternatives. To economists, the subordination of costs in arriving at many of the fragmentary decisions was bound to lead to unwise allocation of resources.
This situation was substantially alleviated by the adoption of the National Environmental Policy Act and the California Environmental Quality Act in 1970. In effect, these acts required all governmental bodies and agencies to consider environmental and natural resource effects consequent upon any projects which they had a part in authorizing, regardless of the specific functions which they were originally created to perform. The federal law requires the decision-maker to make an analysis of costs and benefits to show that it has weighed them against each other in reaching its decision. Furthermore, it must consider the alternative ways of accomplishing the same general purpose, even including possibilities which are beyond the jurisdiction of the deciding agency.
There is little doubt that the new laws should produce better decisions in the long run, wherever the governmental bodies and agencies can rise to the level of their new responsibilities. The problems of gearing up to the new requirements and acquiring the needed expertise, however, have created near chaos in the short run and seriously postponed badly needed decisions. The sheer magnitude of the task of evaluating many factors and alternatives means that, under the best of circumstances, applicants and administrative agencies will continue to have to spend much more time in preparation and decision than before. We should be able to accept this delay for important decisions, especially if we can offset much of it by eliminating the unnecessary delay that tends to be built into the administrative process. There is, of course, substantial room for improvement of these laws, but the cost-benefit approach and the comparison of alternatives represent a much-needed step forward.
Not the least of the benefits to be gained from these improvements is the comprehensive information thus made available. The citizen who inquires will have available a far broader explanation of the basis for decisions in which he is interested than has been available before. He will also have a better opportunity to evaluate administrative decisions on projects by his own standards and decide whether to raise his voice in agreement or protest.
Decision-making at the administrative level, which I have just been discussing, although complex, is simpler in some respects than legislative decision-making. The legislative charter of an administrative agency and the laws which the agency must apply provide the goals and limit the impacts which it needs to consider in reaching a decision. Apart from constitutional requirements, the national and state legislative bodies have no such ground rules to simplify their decisions. For the most part, these legislatures decide on policies, general goals, and means of implementation, rather than on specific actions.
The judgments which the legislatures must make are harder in that the consequences of their actions are broader and reach farther into the unknown than decisions on more specific projects. We might call legislative prescriptions for action decision rules. They represent decisions as to how decisions should be made, and they may be applicable to corporations and individuals in their private capacities as well as to governmental officials and agencies. These decision rules are not final decisions themselves.
In the business world, decision rules of a more specific nature are used. Often they use numerical quantities as inputs so that a computer can be programmed to make the decision as soon as the figures are entered. Orders for new supplies of raw materials may be produced for a manufacturing enterprise in this manner from regular operating figures without any need for intervention by a purchasing agent. Actually, however, the computer does not make a decision. The decision-making came in setting up the program, choosing the relevant inputs, and fixing the criteria on which the computer would act. What followed at periodic intervals thereafter was already decided.
Legislatively established decision rules usually require further decisions outside of the legislature for their implementation. Computers cannot perform this function. Evaluation of final decisions should recognize the two levels of decision-making which lead to the end result.
To take another example from my own field, it is appropriate to criticize a public utility commission on the ground that it has an exaggerated idea of what should be allowed to a utility as a fair return in fixing rates (I have yet to encounter this situation), but it is not appropriate to criticize the commission for using a fair return as one of the elements in reaching its decision, because it is legally bound to do so. Without an understanding as to who decides what, criticism may be misdirected and the remedies misplaced.
With some trepidation, considering the judicial members of my audience, I will venture to say that judicial decision-making, in the present context, is the implementation of a set of decision rules. The set of decision rules is ordinarily known as “the law,” so this is hardly a profound statement, but it may serve a purpose. The decision rules have a variety of sources, such as the common law, statutes, constitutions, decisions of other judges, and so on.
Judges, fortunately, are not replaceable by computers, except perhaps in traffic courts. The decision rules given to judges are in general terms; they do not expressly cover all the cases that arise, they frequently overlap, and when they do, they may be inconsistent.
To complicate things further, the body of rules expressed in past decisions may fit today’s society very poorly. The words may survive, but the context changes, so that yesterday’s rule cannot justly be applied to a factual situation today in the same manner as before. In this situation, the conscientious judge may find an opportunity to choose from competing rules or principles, or even make a new rule for the modern circumstance. This sort of decision, of course, undermines the idea that a judge’s function is to implement decision rules. It appears that he may, on occasion, make his own rule at the same time that he applies it, thus being virtually free of constraint.
One actual constraint on this apparent freedom is the possibility of appeal to a higher court, which can overturn the more outrageous aberrations that cannot command a majority of the appellate body. A second constraint, applicable even to the highest courts of the land, is the obligation to write a reasoned opinion in support of the result. Judges are, for the most part, respectful of the opinion of mankind and especially of their professional brethren. This is a strong inducement to change by evolution rather than revolution. Thirdly, even the highest courts do not always have the last word, though it may take a constitutional amendment to override an unpopular decision. The California Supreme Court’s decision that capital punishment violated the California Constitution was rather promptly disposed of in this manner. A United States Supreme Court decision that a federal income tax was a direct tax under the United States Constitution was made obsolete by an amendment to that constitution. But change is an essential part of the law. When old decision rules of law impose too narrow boundaries for satisfactory decisions, judges, legislators, and constitutional amendment processes gradually rise to the occasion.
In the history of English and American law, we have seen the establishment of rules of equity to soften the rigidities of the old rules of law and even supersede them. Petitions were addressed to the King’s Chancellor, who was held to be the keeper of the King’s conscience, to right what were regarded as obvious wrongs resulting from the application of formal rules of law. In this, there was recognition of a sort of higher morality—equitable principles—to which appeal could be made. The equity system, however, developed its own precedents and procedures until it, too, suffered from many of the infirmities of the kind which it was developed to alleviate. Modern law, which has fused legal and equitable principles, still retains, however, some of the flexibilities of the Chancellor’s approach.
Let me return now to consider what the man in the street is to make of all this. Perhaps the best we can do is to propose an approach and course of conduct for the ideal citizen. He should endeavor to inform himself as well and critically as he can, trying to evaluate sources of information and experts on the basis of his own common sense. Conventional wisdom has become a derogatory term in John Galbraith’s vocabulary (and he has justification), but it is not all that bad a guide to thinking, provided that it is recognized as always being open to question. Our ideal citizen should endeavor to keep his mind open to new ideas. He should consider his own self-interest as only one of the interests to be served by his government, subordinate to the reasonable interests of his fellow man.
A good citizen will make his reasoned views known wherever it may serve to guide decisions, with due respect for the differing views of others. Since the ordinary citizen must depend greatly on his elected representatives, he will cast his vote in the light of his expectations, not only with respect to specific decisions but especially concerning a candidate’s approach to and mode of reaching decisions, and his candidate’s likely selection of subordinates who will actually make many decisions.
In evaluating past decisions, the thoughtful citizen will, of course, look to the end result. Here he will have the difficulty of actually relating cause to effect, and he must go beyond superficial appearances. Before assessing blame, he should also consider whether the decision was reasonable at the time it was made, because mistakes may be forgiven, up to a point, but not incompetence or venality.
These are platitudinous prescriptions, but there may be some convenience in having assembled them here.
Frederick T. Searls, Chit-Chat Club, San Francisco, September 9, 1974