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1042 the riker objection revisited

Suppose, as is empirically the case most of the time, that s < S.Asimple majority

is often all that is required for normal business, but an extraordinary majority is

necessary for procedural changes and other constitutional matters. It is quite possible

for a simple majority to wish to conduct business diﬀerently, but they fall short of the

special majority required to revise the rules.

In a setting in which policy and procedure were subject to the same decision rule,

Riker felt that dissatisﬁed decisive coalitions on policy would not long sustain the

prevailing consensus on procedure. Since a winning policy coalition is also a winning

procedural coalition, the denial of their policy preferences on procedural grounds

would not persist. After experiencing defeats for a time perhaps, they will learn what

procedures require change and implement them; they have both the means and the

motivation. Preferences over institutions/procedures are inherited from preferences

over policies (Shepsle 1986, 57). The decisive policy coalition can re-form itself as

a procedural coalition, make the institutional changes, and thus obtain their policy

preference.

The tension is acute, however, and potentially persistent, when winning policy

coalitions fail to be winning procedural coalitions. If an s-majority suﬃces to prevail

on a substantive vote, but an extraordinary S-majorityisrequiredto“shutoﬀ debate,”

as in the US Senate under Rule 22 for example, then s -majorities are limited by the

tolerance of every coalition of size greater than 1 − S that prevents an S-coalition

from supporting the closure of debate and thus permitting a substantive vote to take

place. Riker is on much weaker grounds in this second context. This means that it will

pay dividends to examine the various ways in which procedures may be altered.

5 Modes of Procedural Change

.............................................................................

Suppose there were no way to alter a procedural agreement. Once in place it remains

in place. This is problematical in two respects. First, there are prospective gaps in the

agreement too costly to ﬁll in advance as well as contingencies unforeseen altogether.

If either of these arises, then the contracting parties may be worse oﬀ living under the

agreement than abandoning it altogether.

Defection from the agreement becomes a

real possibility. Second, as Rosendorﬀ and Milner (2001) describe in the context of

international trade agreements, an ex post inability to “escape” unexpectedly onerous

burdens imposed by an agreement produces ex ante obstacles to reaching agreement

in the ﬁrst instance.

But there is a trade-oﬀ. An agreement with loopholes and escape clauses and easy

routes to obviating its terms is hardly an agreement at all. The slightest inconvenience

⁸ Mr Iredell, in the North Carolina ratifying convention of the US Constitution as reported in

Kurland and Lerner 1987, 582, spoke to this point: “The Constitution of any government which cannot be

regularly amended when its defects are experienced, reduces the people to this dilemma—they must

either submit to its oppressions or bring about amendments, more or less, by a civil war.”

kenneth a. shepsle 1043

becomes a pretext for non-compliance. Unlimited discretion is a condition mak-

ing it hardly worthwhile to enter into such agreements. Rosendorﬀ and Milner

(2001, 834) argue for costly escape clauses—“rules with costly discretion” rather than

“no discretion at all.”

Including costly escape clauses in agreements makes them

easier to reach on the one hand, and restricts the circumstances in which their terms

will not be honored on the other.

In the remainder of this section alternative forms of costly ﬂexibility and revision

are examined. I provide this brief catalogue to display how institutions in the real

world actually build in a capacity to reform themselves. This underscores Riker’s

objection to taking institutions as ﬁxed and unchangeable. They may not be like

ordinary policies, subject to ordinary change. But this does not mean they cannot

be changed at all.

Amendment procedures. In the debates on the US Constitution in the Virginia ratify-

ing convention, Madison addressed the amendment mechanism contained in Article

V by asking, “Does not the thirteenth article of the [Articles of] Confederation

expressly require that no alteration should be made without the unanimous consent

of all the states? Could anything in theory be more perniciously improvident and

injudicious than this submission of the will of the majority to the most triﬂing

minority?” (Kurland and Lerner 1987, 582). In the Constitutional Convention itself,

Charles Pinckney had bemoaned the high cost of ﬂexibility in the Articles of Con-

federation: “[D]iﬃcult as the forming a perfect Government would be, it is scarcely

more so, than to induce Thirteen separate legislatures, to think and act alike upon

one subject” (Kurland and Lerner 1987, 578). And Blackstone, in his Commentaries,

notes: “Nor can we too much applaud a constitution, which thus provides a safe, and

peaceable remedy for its own defects” (Kurland and Lerner 1987, 583). Most bodies of

rules provide for endogenous revision, typically requiring a greater consensus than

on ordinary decisions—s < S in Barbera and Jackson’s formulation. The institution

thus contains the very seeds of its own reform.

Interpretative courts. Explicit amendment procedures are not the only way to change

a body of rules. Justice Oliver Wendell Holmes once said of the US Supreme Court

that “the job of this Court is to say what the law means.” The interpretation of law,

both statutory and constitutional, is an alternative road to reform; it is a complement

to oﬃcial amendment processes. And the activist role for the court in judicial review

ﬁrst charted by Chief Justice John Marshall is undoubtedly responsible in part for the

⁹ Downs and Rocke 1995, 77, complement this reasoning by suggesting that, instead of formal

“exceptions” or “escapes” in a constitution, it is sometimes more eﬀective simply to permit

non-compliance, punish it, but to make these costs low enough that violations may occur from time to

time in equilibrium. This may be simpler than struggling to craft exceptions in a more complete

agreement.

¹⁰ Joseph Story, in his Commentaries on the Constitution (1833), suggests: “The great principle to be

sought is to make change practicable, but not too easy.” Battigalli and Maggi 2002 show that for various

cost conditions an optimal agreement will possess diﬀerent degrees of ﬂexibility—that is, diﬀerent mixes

of discretionary and rigid delegations to agents. There are large literatures on renegotiation in game

theory and optimal breach in contract theory that bear a close resemblance to these issues.

1044 the riker objection revisited

fact that the US Constitution has, since the Bill of Rights, been amended fewer than

twenty times in 200 years.

Judicial review, either by extending the jurisdiction of a meaning or altering the

meaning altogether, provides a less costly means of altering constitutional practice

than amendment. In doing so, however, it must be noted that this arrangement

empowers judges and, as Riker would surely remind us, this is not necessarily a be-

nign development. Constitutional courts, in other words, are not merely procedural

devices for “ﬁxing” institutions whose equilibria have been perturbed by a change

in the underlying strategic setting. While admitting that judges may be something

more than mere politicians—“legislators in robes” (Shepsle and Bonchek 1997)soto

speak—they surely are politicians with agendas of their own.

Suspension of the rules. In the US House of Representatives there is a body of standing

rules, adopted by a new Congress as one of its ﬁrst orders of business but then rarely

followed! Legislation almost always passes in two ways that deviate from “normal

procedure.” First and most typical, the Committee on Rules proposes a “special rule,”

crafted especially for the legislation at hand. This rule, if adopted by a simple majority,

speciﬁes the special circumstances that are to prevail in the consideration of the

bill—limiting legislative debate, naming amendments that are in order, and making

points of order against the bill out of order. A second device to expedite proceedings

literally suspends the rules. In considering a bill, it is in order to move to “suspend

the rules and pass” the bill in question. Debate is compressed, the ordinary rules are

suspended, no amendments are in order, and the legislation is approved if the motion

is supported by two-thirds of those present and voting. The standing rules, in other

words, constitute reversion procedures that obtain only if special circumstances like

suspension and special rules haven’t been arranged for.

The US Senate also has a body of standing rules. Like the House, its “normal”

procedures are so convoluted and burdensome to follow as eﬀectively to prevent

action in many instances. To escape this perplexing problem without having to craft

an entire new body of rules with their own ﬂaws, the Senate typically observes

unanimous consent on matters of procedure. Unanimous consent agreements, like

suspension and special-rule procedures in the House, are mechanisms for cutting the

Gordian knot and getting on with business in a manner short of formal amendment

of the rules. Such agreements, in both chambers, empower veto players and position

them to extract concessions in exchange for lifting their veto.

Escape clauses and nulliﬁcation. The Articles of Confederation required a form of

unanimity for many formal actions by the Articles Congress. (A modern example

is the Council of Ministers of the European Union.) This arrangement provided

each state delegation with veto power, and proved to be a disaster in the face of

growing threats. (Shays’s Rebellion and the inability of the Confederation to respond

militarily to it was the straw that broke the camel’s back for many who assembled in

Philadelphia in July 1787 to explore alternatives.)

Nulliﬁcation limits the scope of an action (whereas veto power prevents action

altogether). It is an ex post restrictiononthereachofapolicyandineﬀect locates

kenneth a. shepsle 1045

ultimate sovereignty in the constituent units empowered to nullify rather than in

the collectivity. It allows a constituent unit to escape the consequences of policies

adversely aﬀecting it. For example, it would have permitted nineteenth-century South

Carolina to nullify a high tariﬀ on manufactured goods by permitting it to import

thosegoodsthroughtheportofCharlestonatlowerrates.

Via backward induction, a nulliﬁcation power would induce policy-makers to

take into account prospective ex post actions by constituent units. The prospective

nulliﬁcation of a tariﬀ by a constituent unit, for example, to the extent that it would

have national repercussions in eﬀectively undercutting the rate structure on imports,

might induce legislators to lower the oﬀending rates. That is, nulliﬁcation power

enhances the ex ante bargaining leverage of constituent units.

Nulliﬁcation, as Chen and Ordeshook (1994) remind us, is an alternative to se-

cession (see below), and looks very much like escape clauses in international trade

agreements (Rosendorﬀ and Milner 2001). At the point of negotiating an agreement,

the opportunity to escape its strictures may enhance its prospects of being entered

into in the ﬁrst place, especially in high-variance environments where uncertain-

ties loom large and some of their realizations have the potential to wreak havoc.

Having witnessed the Tariﬀ of Abominations, for example, South Carolina’s John

Calhoun promoted nulliﬁcation as a protection for the South against the possibility

of an out-of-control national legislature—one dominated by Northern economic and

anti-slavery interests (Herzberg 1992). Rosendorﬀ and Milner (2001, 831) claim that

these constitute eﬃcient responses in international trade negotiations to conditions

of domestic uncertainty, reducing domestic pressure on governments to withdraw

altogether from agreements during periods of protectionist sentiment.

Nulliﬁcation and escape, especially if they are exercised at a cost to their initiator,

may be superior to the failure to reach any agreement at all. Moreover, in multilateral

settings an agreement that prompts a “local” evasion may nevertheless generate ben-

eﬁts to those remaining in the fold. So, the presence of an escape clause, or the oppor-

tunity to nullify, may have three distinct eﬀects. They may reassure ex ante,thereby

improving the prospects for an agreement. In order to discourage nulliﬁcation or

escape, they may dissuade a temporarily decisive coalition from extracting maximal

advantage. And third, they may provide for agreement even if ex post uses of escape

and nulliﬁcation can be expected from time to time in equilibrium (Downs and Rocke

1995). Nulliﬁcation opportunities, of course, may entirely unravel an agreement; but

then an agreement without the nulliﬁcation option may not have been on the cards

in the ﬁrst place. To avoid the use of nulliﬁcation in every circumstance that makes a

constituent unit worse oﬀ,itcannotbecostorriskfree.

Secession. Secession by a constituent unit is a mode of institutional change in extremis.

It alters the nature of strategic interaction. In transforming the original game, the

remaining players ﬁnd themselves in an altogether diﬀerent strategic setting. Their

domestic aﬀairs now have a diﬀerent proﬁle of interests and a revised set of decisive

coalitions. The secessionist now has a domestic politics wholly diﬀerent from what

it had been originally. And now there are strategic relations between sovereigns that

1046 the riker objection revisited

hadn’t previously existed. Chen and Ordeshook (1994) show that secession may be

“constitutionally permitted,” i.e. others will not seek to prevent it, or “constitutionally

prohibited,” yet attempted. Both of these are equilibria of the Secession Game they

analyze.

Admission of new members. The addition of players, like the subtraction, alters the

strategic complexion of a game. The nominal practice in the United States was to

have a geographic region ﬁrst apply for territorial status, then write a territorial

constitution that met with congressional approval, and ﬁnally apply for statehood

when its population reached that of the average congressional district. Yet, as Stewart

and Weingast (1992) show, the timing and sequencing of admission decisions by

Congress were fraught with strategic calculation. As North and South moved in

diﬀerent directions on slavery and other economic issues in antebellum America, the

admission of new states produced some of the most spectacular congressional roll

calls in the history of that institution. The admission of Maine and Missouri as part of

the Compromise of 1820 began a pattern of “balance” in admissions between slave and

free territories. The acquisition of new territory (e.g. the Mexican War) posed further

strategic issues. Each new player in national politics meant a potential redeﬁnition of

winning coalitions and possibly dramatic swings in policy. Even after the Civil War,

the late nineteenth-century admission of western states had implications for national

politics and presidential elections, depending on their partisan coloration. This did

not go unnoticed by Congress.

In short, as a game form an institution is sensitive to

the number of players and their strategic opportunities. Changes, whether by addition

or subtraction, change institutions.

Emergency powers. “Regimes of exception,” as Loveman (1993)callsthem,arecon-

stitutional orders with processes for partial self-suspension. The Romans, for exam-

ple, conferred emergency powers upon dictators for limited periods. “The dictator

could not initiate the state of emergency but rather was charged by the legitimate

government with emergency powers and could not legally alter the existing constitu-

tional order—only defend it” (Loveman 1993, 19). Loveman suggests the “historical

landmark” of modern emergency powers is the British Riot Act of 1714,empowering

the forces of order to disperse a riotous crowd ﬁrst by “reading them the Riot Act”

and then resorting to force if necessary, their actions fully indemniﬁed against civil

prosecution for any harm done. His book is a broad survey of emergency powers

in Latin American constitutions. Hayek (1979, 124–6) warns against conﬂating the

declaration of a state of emergency with the actual exercise of emergency powers,

arguing that the two should be held separate to minimize their use for self-serving

purposes. (This was true of the Roman practice, but the separation did not hold over

time and emergency powers lapsed into dictatorship—see Loveman 1993, 19.)

Emergency powers exercised during states of emergency, siege, public disorder,

public disturbance, or internal commotion are normally interpreted as instances of

¹¹ A contemporary illustration of these same observations is the ongoing expansion of the European

Union.

kenneth a. shepsle 1047

a constitutional equilibrium upset by events. The powers are, in principle, defen-

sive of the constitutional order and are deployed in order to remove the disruptive

conditions that took aﬀairs oﬀ the equilibrium path. However, the causality may

be reversed—it is an out-of-equilibrium constitution that triggers public disorder

which, in turn, precipitates the exercise of emergency powers. This latter interpreta-

tion brings emergency powers closer to endogenous amendment procedures in that

both seek to restore equilibrium by adapting the constitution to the new circum-

stances.

6 Conclusion

.............................................................................

The endogenous forms of institutional change reviewed in the previous section

highlight the importance of the Riker Objection in contexts even richer than he

considered. There are a variety of ways for a decisive procedural coalition to adjust

the institutional machinery. The decisive procedural coalition, however, need not

be the same as one of the decisive policy coalitions that ultimately makes policy

choices. The tools of institutional engineering are not always available to a “mere”

policy coalition. So institutions may still structure equilibrium (Shepsle 1979), be-

cause the means for a policy coalition to alter the machinery to secure their pre-

ferred results either are not at hand or are too costly to employ (Calvert 1995). In

eﬀect, institutions have a life of their own and are decisive as long as they stay

within the transaction-cost boundary that changing to a new institution would

require.

Making this claim limits the impact of Riker’s objection; however, it does not

undermine the political thrust of Riker’s line of reasoning. Endogenous sources of

institutional revision are more than ex ante provisions to cope with a changing

environment or to accommodate the “discovery of gaps.” They provide alternative

routes by which groups try to get what they want; they privilege particular coalitions

of agents with procedural advantages; they may be deployed for reasons limited only

by political imagination.

The Riker Objection was ﬁrst formulated twenty-ﬁve years ago. In retrospect it

may be seen as a static and narrow statement. It did not diﬀerentiate policy coalitions

(s) from procedural coalitions (S). It did not give credit to institution designers for

anticipating dynamic developments or for inserting self-revising features. The last

decade or so has produced research that brings a great number of these elements

into play. There is, however, a second facet of the Riker Objection—one focusing less

on “failure correction” and other shortcomings of incomplete contracts in uncertain

environments. Institutional revision is not merely an adjustment to imperfect design

and unreliable settings. It is, as I have noted several times, a way forward for whatever

¹² The modes of procedural adjustment described here may be extended. Additional modes include

redistricting, expansion of the (s)electorate, and devolution.

1048 the riker objection revisited

purposes a decisive coalition sets for itself. Much less progress has been made on this

political dimension.

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Name Index

...........................................

Note: Includes all referenced authors.

Abdelal, R 763 n9

Abdolali, N 840

Aberbach, J D 263

Abraham, H 282

Abrams, S 251

Abreu, D 956

Acemoglu, D 603, 617, 629, 674 n1, 675, 678, 679, 682

n3, 685, 688, 690, 691, 716, 725, 740, 751

Acosta, A M 560

Adams, J 111

Adams, P 542

Ades, A 792

Adolph, C 607

Advisory Council for Interstate Relations

(ACIR) 466

Aghion, P 99 n24, 1036

Aidt, T 455 n38

Alaminos, A 314

Alcalá, F 793

Alchian, A 17

Aldrich, J 37, 146 n7, 157, 209 n4, 450 n21, 606, 997 n

Alesina, A 21, 124 n4, 322, 324 n18, 465, 473, 527, 535,

548, 549, 551, 555, 556, 557, 568 n6, 574, 578 n27, 604,

607, 610–11, 630, 631, 634, 636, 638, 639, 644, 648,

734, 769, 779, 780, 781, 782 n14, 782 n15, 784 n19,

786, 788 n27, 789 n28, 790

n30, 792, 793, 794, 795,

859, 865, 1017, 1036

Alexander, R D 961

Alexander the Great 20

Alford, J 579 n30

Allan, J 606

Allee, T L 873

Alm, J 466

Almond, G A 325, 709

Alston, L 636

Alt, J 152, 548, 550, 552, 559, 560, 729

Alter, K J 770

Alvarez, R M 644, 1017

Amin, Idi 698

Amin, M 893

Amorim Neto, O 145, 153

Amsden, A H 709

Anbarci, N 890

Anderson, B 778 n2, 859, 860

Anderson, C 578 n29

Anderson, J 741

Anderson, L 929

Andreoni, J 446 n11, 952

Andrews, J 146 n7, 1035

Annett, A 465

Ansolabehere, S

32 n5, 35 n7, 36, 45 n11, 46, 50, 95, 172

n24, 190, 191, 926

Aragones, E 926

Aranson, P 77 n10

Aristotle 778

Arrow, K J 103, 373, 405, 409, 413, 417, 419, 480, 526,

601, 900, 903, 904, 974, 975, 985, 986

Arthur, B 808

Asch, S 638

Ashenfelter, O A 770

Ashworth, S 52, 57 n11, 59

Asquith, H 687

Atkinson, A B 314 n4, 442 n1, 527

Aumann, R J 88, 89

–90, 956

Austen-Smith, D 52 n5, 66, 87–8, 165 n8, 167, 170 n17,

172 n27, 193 n20, 450 n21, 453, 611, 732, 904 n5 , 904

n7, 906, 909 n12, 927, 933

Ausubel, L M 385

Autor, D 627

Axelrod, R 163–4, 711 n2, 714, 836, 890, 955

Azam, J-P 716

Azrael, J R 699

Bagwell, Kyle 766, 767

Bailey, M 52, 248

Bailin, A 834

Baldwin, R E 762, 764 n10,

780 n6

Balla, S J 261, 263 n3

Bandyopadhyay, U 452

Banerjee, A 314 n4

Banks, J 66, 74, 75, 81–2, 165 n8, 167, 170 n17, 172 n27,

193 n20, 215 n8, 904 n5, 904 n7, 906, 908, 909 n12,

927

Bannon, A 865 n21

Baqir, R 453, 465, 631, 733, 859, 865

Barbanel, J B 425, 426, 427, 428

Barberà, S 383, 384, 1040, 1041

Bardhan, P 782 n13

Baron, D P 12, 32 n6, 85, 150, 157, 162, 164, 168–70, 172,

173, 187–8, 190, 362, 906, 921, 922

Barro, R J 569, 648, 693

Barry, Brian 290, 293, 296, 297, 306

Bartlett, R 717

Barton, Joe 531

Bates, R 697, 711, 714 n3, 715, 757 n1, 767, 856, 860, 861,

894

Batista, Fulgencio 698, 702

Battigalli, P 1036, 1043 n10

name index 1051

Bauer, R A 759

Baum, M A 693, 873

Baumol, W J 538

Bawn, K 154, 215 n8, 260, 261, 263, 613, 732

Bearce, D 592

Beblawi, H 716

Becht, M 724

Beck, N 554, 835

Becker, G S 455, 951, 985 n4

Beckert, J 937

Bednar, J 359

Beer, C 876

Beer, S H 304

Ben Zion, U 12

Bénabou, R 314 n3, 604, 951

Bendor, J 260, 266, 268

Benhabib, J 314–16, 325

Bennett, D S 836, 871, 872, 873, 876

Benoit, K 138

Beramendi, P 366

Berg, J 959

Berger, H 801

Bergstrom, T C 448

Berl, J 920

Berle, Adolph 304, 305, 1014

Berleson, Bernard

Berliant, M 486 n16, 498

Berlin, I 374, 379

Bernhard, M 659

Bernhard, W 264 n5, 593

Bernheim, B D 450, 912

Bernstein, M H 212

Bertrand, J 88

Besley, T 37, 81, 132, 323, 362, 446 n10, 448 n16, 450,

456, 553, 607, 730, 908, 1019

Bester, H 888

Bewley, T 481 n4

Bhaskar, V 956

Bickel, A M 208

Biddle, S 873

Bienen, H 664

Bikhchandani, S 385, 929

Binder, S 134, 146, 157, 184, 204

Bingham Powell, G 725, 729

Binmore, K 171 n20

Bismarck, Otto von 609

Black, D 103, 182

, 224, 448, 553, 900 n2, 903, 907, 984,

985, 986, 996–7

Blackorby, C 408, 413, 417, 418, 420, 422

Blackstone, W 342 n1, 1043

Blackwell, D 421

Blair, Tony 129

Blais, A 550, 560, 726

Blake, D 550, 560

Blank, R 624, 627

Blau, F 627

Blau, J 419

Blinder, A 571 n13

Bloch, F 892

Bloch, M 711

Blondel, J 126

Blum, L 638

Boadway, R 457

Boehm, C 952, 961

Bohte, J 262, 263

Boix, C 103, 315 n5, 365, 605 n1, 617,

646, 648,

865 n19

Bolton, P 22, 365, 72 4, 779, 790, 791

Bonchek, M 1044

Bonﬁeld, A E 214

Borcherding, T F 448

Bordignon, M 467, 779, 789 n28

Bossert, W 376, 413, 420, 422

Boucher, R L 211

Boudreau, C 277

Boulding, K E 781

Bourdieu, Pierre 938, 941, 942

Bowen, H R 448, 486 n16, 985

Bowen, W G 538

Bowler, S 115, 126 n5

Bowles, S 952, 953, 956 n1, 960, 961, 963

Boyd, R 19 n22, 963

Brady, D W 182, 224, 228, 247, 252 n15

Brady, G L 527

Brady, H 33, 35, 44

Brams, S 107 n8, 396, 397, 404, 425, 426, 427, 428, 429,

431, 432

Brandenburger, A M 978

Brass, P R 864

Bratton, M 657, 660

Braumoeller, B F 872

Brennan, G 290, 330 n1, 331 n2, 332 n4, 336, 340 n6,

360, 363, 455 n41, 505, 613, 984 n2

Brenner, R 688

Breton, A 951

Breuilly, J 856

Brito, D 888

Brock, W A 762

Brooker, P 696

Brooks, C 999

Brooks, R S 865 n19

Brown, D E 961

Browne, E C 165,

172 n22, 173

Broz, J L 589, 593

Brueckner, J 360, 503 n2

Brusco, S 779, 789 n28

Bruszt, L 314, 661

Bryce, J 319

Buchanan, J 8, 149 n13, 154, 321, 330 n1, 343, 360,

363, 454 n34, 454 n35, 455, 505, 527, 534, 613, 711,

780, 789 n28, 951, 981, 984 n2, 986 n5, 990 n7, 991,

997

Bucovetsky, S 511

Budge, I 137

Bueno de Mesquita, B 22, 695

, 699, 831, 832–3, 836,

839, 841, 842, 844, 845, 846, 847, 848, 870, 871, 872,

873

Buetler, M 457

Bunce, V 664 n6

Burbank, S 281

Burgoon, B 825

Burke, Edmund 303

Burke, M 952

Burrow, J 313

Burt, R 940

Bush, George W 295, 302, 304