Penalties for Underperforming Politicians

Law professor Glenn Reynolds (AKA Instapundit) has an interesting column in USA Today advocating that we increase penalties for politicians who do a poor job in office:

As scandals explode across Washington… one thing that I’ve noticed is that the people involved don’t seem to suffer much….

Government officials are happy making and executing plans that affect the lives of millions, but when things go wrong, well … they’re willing to accept the responsibility, but they’re not willing to take the blame. What’s the difference? People who are to blame lose their jobs. People who are “responsible,” do not…

Given the low penalties for failure it faces, our political class is one for whom falling down is usually painless and even — given the surprisingly common tendency of people who have presided over debacles to be given promotions rather than the boot — actually pleasurable….

The problem is that they don’t have, in President Obama’s words, “skin in the game.” When it comes to actual wrongdoing, they’re shielded by doctrines of “absolute immunity” (for the president) and “qualified immunity” (for lesser officials). This means that the president can’t be sued for anything he does as president, while lower-ranking officials can’t be sued so long as they can show that they were acting in a “good faith” belief that they were following the law.

Such defenses aren’t available to the rest of us. And they’re not even the product of legislation passed by Congress after considered judgment — they’re judicially created….

Reynolds proposes that we eliminate judicially created immunity doctrines and impose tougher penalties on failed political leaders:

I’d favor some changes that put accountability back in. First, I’d get rid of judicially created immunities….

I’d also cut all payments to members of Congress whenever they haven’t passed a budget. If they can’t take care of that basic responsibility, why should they get paid? Likewise, I’d ban presidential travel when there’s not a budget. He can do his job from the White House.

I’m willing to consider other changes: Term limits that kick in whenever there’s a deficit for more than two years in a row. Limitations on civil-service protections to allow wronged citizens to get offending bureaucrats fired. Pay cuts for elected officials whenever inflation or unemployment are above a threshold.

I’m sympathetic to the idea of eliminating or at least cutting back judicially created immunities, and some of Reynolds’ other ideas are also worth considering. Others, however, might have unintended negative side effects. For example, if members of Congress don’t get paid unless they pass a budget, that might give them an incentive to pass any budget, even a terrible one that creates even more fiscal problems than presently exist.

More fundamentally, however, the big problem is not that we don’t have penalties for underperforming politicians, but that often the voters don’t enforce them. If a politician is widely considered a failure, he is likely to be voted out of office, thereby losing the power and prestige that goes with it. Think of Jimmy Carter in 1980 or the Republican Congress in 2006. That’s very significant punishment, because politicians tend to be people who care a great deal about getting into power and keeping it. Some of them also care about their historical reputations, and therefore don’t want to be remembered as the next Herbert Hoover or Neville Chamberlain.

For these reasons, the political system actually does a fairly good job of punishing policy errors that are large, obvious, and easily traceable to a specific politician or party. The problem is that most political failures are more subtle than that. Most of the time, the failure itself isn’t obvious, it takes some knowledge to figure out who is responsible, or some combination of both. In these more typical cases, voters often do a poor job of assessing politicians’ performance, in large part because of widespread political ignorance. They reward and punish incumbents for events they didn’t cause, while often ignoring or undervaluing those incumbents do have an effect on.

It’s also interesting to ask why the public hasn’t revolted against the judicially-created immunity doctrines that Reynolds criticizes and forced Congress to pass statutes overriding them and the president to appoint judges who might overrule the relevant precedents. I haven’t seen polling data on the subject. But I suspect that most voters have no idea these doctrines exist in the first place. Among the minority who do know about these issues, there are many biased partisans who are happy to prosecute misbehaving incumbents when the opposing party is in power, but reflexively conclude that it’s all an unfair witch hunt when it’s their own. More knowledgeable voters are also the ones most likely to be highly biased “political fans.”

Ultimately, the poor incentives of politicians are a reflection of the poor incentives of the voters who elect them. Most of the time, it is rational for voters to be ignorant about political issues, and also to be highly biased in their assessment of the information they do know. If we want to improve decision-making, we should consider deciding fewer issues at the ballot box and more by “voting with our feet,” where informational incentives tend to be better.

UPDATE: To avoid confusion, I should note that I am not endorsing here the comprehensive abolition of all judicially created immunities for government officials. I think many of them should be eliminated, but I am not convinced that is true of all.