Notes

36
230 C H A P T E R N I N E
How to Play? The Strategies of Discretion
We saw that justification in the theory of civil disobedience turns in
part on the strategies or means used to influence the actions of others.
Similarly, a complete account of official discretion will match the strat-
egies of dissent to the conditions of democratic legitimacy. Consider
three classes of discretionary strategy that a public official might em-
ploy: persuasive strategies, incentive strategies, and deceptive strate-
gies.
Persuasive Strategies: Reasons and Publicity
Persuasive strategies seek to change, in good faith, the beliefs, values,
and interests of other political players through deliberation or sym-
bolic action. Persuasive strategies are necessarily public, in the sense
that they act openly on the rational faculties of some relevant audi-
ence. Secretary of State George Shultz attempted, in a limited way, to
offer President Reagan reasons not to seek third-party funding for the
Contras. One of David Goldman’s intentions in publicizing the plight
of the migrant farm workers through lawsuits widely covered in the
press was to win the hearts and minds of Californians. But not every
public strategy is a persuasive one: a political entrepreneur can pub-
licly seek influence over mandates through honest political bargain-
ing and coalition building.
Incentive Strategies: Offers and Threats
Incentive strategies shift the location of the zone of possible agree-
ment in the political bargain, either by improving one’s alternative to
agreement or by worsening the alternatives of those with formal man-
dates, and by making offers, trades or threats to reach a favorable
point in the zone. 41 The strategy works by altering the costs and bene-
fits to political authorities of thwarting discretionary action. Had Sec-
retary of State Shultz threatened to resign if the Contra affair pro-
ceeded (a threat he employed successfully before to halt the use of
polygraph tests on State Department officials) he would have been
pursuing an incentive strategy. The success of David Goldman’s legal
aid campaign in rural California rested in part on an incentive strat-
egy, making opposition to the farm workers’ union increasingly more
costly to growers. But Califano refused President Carter’s instruction
41 See Raiffa, Art and Science of Negotiation, and Lax and Sebenius, Manager as Negotia-
tor.
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L E G I T I M A C Y A N D D I S C R E T I O N 231
to employ an open, stop-me-if-you-can strategy in writing regulations
for funding abortions.
Deceptive Strategies: Lies, Secrets, and Manipulation
Deceptive strategies work by inducing beliefs about facts or values in
the sources of political authority that the discretionary agent believes
to be false. Lies and secrets are assaults on the autonomy of their
intended public, and so are presumptively problematic in democratic
politics. Oliver North and company clearly embarked on a deceptive
strategy, seeking to hide from Congress the administration’s contin-
ued military support of the Contras. David Goldman’s covert direct
aid to Cesar Chavez was also an example of a deceptive strategy of
dissent (in contrast with his mandate-defying lawsuits, which were
open to public scrutiny).
Matching Strategies to Conditions of Democracy
We are now prepared to offer some guidance to the entrepreneurial
public official. Let us match, in a rough way, the three strategies of
discretionary action to the four conditions of democratic legitimacy
outlined earlier, and illustrate by returning to the three examples with
which we began. These suggestions have the virtues of specificity and
provocativeness, but the vice of probable error. I offer my reasons, but
if you find them wanting, you are welcome to propose improvements.
Obviously, there can be no knockdown proof for these tests. A sound
suggestion will appropriately match discretionary strategies with the
conditions the strategies seek to remedy (in the way that, on Dwor-
kin’s view of civil disobedience, persuasive strategies perfect democ-
racy when dissent is common-good-based), or exploit the weaknesses
in a mandate’s legitimacy (in the way that nonpersuasive strategies of
civil disobedience are justified when majorities lack jurisdiction), and
otherwise be fittingly proportional (so that the slightest defect in dem-
ocratic legitimacy does not permit the gravest political fraud).
When Should a Dissenter Forsake All Entrepreneurial Action, and
Confine Her Dissent to Formal Channels?
If the democratic process has done everything one can expect of it,
short of producing a substantive outcome that matches one’s view of
good policy, to then deny the moral authority of such a mandate is to
deny authority simply. Unless the most extreme catch-me-if-you-can
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232 C H A P T E R N I N E
political realism is true, there must be some conditions under which
the substantive judgment of public officials gives way to authority.
Consider one reasonable set of such conditions: when an official
dissents on common-good grounds, not justice grounds, from a man-
date decided on legitimate reasons, through a process rich in intrinsic
democratic values, by authorities who have jurisdiction over the issue
in question.
For example, suppose the residents of a town overwhelmingly dis-
like a prominently displayed public sculpture purchased with public
funds, and the reasons that they articulate appeal legitimately, though
perhaps mistakenly, to aesthetics.42 The issue is widely debated in
town meetings and city council hearings, where experts and citizens
of all stripes come forward, and a nonbinding referendum is held, in
which the art is roundly rejected. But the town’s arts director favors
the sculpture, arguing that the public has not yet developed an appre-
ciation for postmodern works. If, after carefully considering the views
of the public and the opposing view of the town’s arts director, the
town council instructs the arts director to return the sculpture to its
sculptor, on what grounds can the arts director exercise discretion to
postpone, obstruct, or reverse the decision? If democratic authority is
ever a dispositive second-order reason, it is so here. 43
In contrast, by Joseph Califano’s lights, he may, and perhaps must,
exercise more entrepreneurial discretion than he does in drafting guide-
lines for funding abortion. On his view, abortion, even in the case of
rape, is a grave liberal injustice to the fetus that the government
ought not to permit, let alone fund. The strongest case Califano can
make for congressional authority is that Congress has, within its juris-
diction, legitimately but mistakenly interpreted the demands of lib-
eral justice. At the least, Califano can help the democratic majority
realize its own political principle of respect for persons by persua-
sively confronting it with what he believes is the right conception of
justice—perhaps through further public hearings, perhaps through
public protest, perhaps by noisy resignation. 44
42 There are many legitimate reasons for making decisions about art, but surely rea-
sons of aesthetics are among them. Note, however, that some reasons for making com-
mon-good-based decisions are illegitimate reasons. A city council that rejects a pro-
posal because of ethnic prejudice against the artist, or that directs a commission to a
campaign supporter, is deciding for illegitimate reasons.
43 This account is loosely based on events in Tacoma, Washington. Cf. “Tacoma Neon
Wars,” Kennedy School of Government Case C15–87–764, -765, -766.
44 And Califano need not be so charitable about congressional authority. True, the
Supreme Court, which shares jurisdiction over the question of legitimacy, ruled, for
legitimate reasons, that Congress has substantive jurisdiction over funding questions.
But Califano believes that such reasoning by the Court is mistaken: permitting and
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L E G I T I M A C Y A N D D I S C R E T I O N 233
Which Conditions of Democratic Legitimacy
Call for a Persuasive Strategy?
Entrepreneurship that influences political mandates through delibera-
tion and openness, that appeals to public reason, is always less prob-
lematic than nonpersuasive, coercive, secretive, or deceptive strate-
gies. Honest persuasion seems particularly fitting in opposing mandates
that rest on legitimate but mistaken reasons. Honest persuasion ap-
pears to be the only justifiable strategy for a common-good-based dis-
senter when there are only minor defects in the conditions of legit-
imacy. Such justification appeals to the notion that public and persuasive
entrepreneurship challenges democratic authority on behalf of de-
mocracy itself, to perfect democracy by improving the quality of de-
liberation and realizing democratic values.
On this logic of perfecting democracy, an official entrepreneur may
exercise public, persuasive discretion even when matters of justice are
not at stake. The legislator may vote her best judgment on trade bills
and highway bills, as well as on the death penalty, so long as her
dissenting performance is public and accountable in a way that con-
tributes to the deliberation and political education of her constituents.
More controversial: on this view, even if justice is not implicated,
the secretary of state may continue to protest a foreign-policy initia-
tive after a presidential decision has been reached, and may do so
publicly, so long as the path of influence is largely persuasive, rather
than coercive or threatening.
More controversial still: on this view Reagan and his national secu-
rity apparatus may take public, persuasive dissenting action to con-
vince the congressional majority that it erred in Boland, even if such
action strains a good-faith interpretation of the amendment. For ex-
ample, if the Contras required funds to document Sandinista support
for other Latin American insurgencies, or some other evidence that
might reasonably be expected to change congressional views, then the
White House would be justified in engaging in an open, third-party
fund raiser to finance such documentation.
When Is Political Bargaining a Justified Strategy for a Dissenter?
The case for a nonpersuasive (but still nondeceptive) strategy of dis-
cretion, with its offers and threats, its coalitions and exchanges, is
funding abortion ought not to be within the jurisdiction of the legislature. Turning Raz
around, in Califano’s judgment, Congress has been granted legitimate jurisdiction,
though it does not have the right to such jurisdiction.
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234 C H A P T E R N I N E
strongest when the source of the political mandate lacks legitimate
jurisdiction, or when the mandate has been decided for illegitimate
reasons, or when the democratic value of the mandating process is
low. Each of these conditions signals some serious weakness in the
democratic legitimacy of the political mandate. The less legitimacy
and value one finds in a particular episode of policy making, the
more one is justified in acting like a political realist. Here, propor-
tionality is called for: the slightest defect in participation does not
justify the most heavy-handed coercive threat, but one can treat such
mandates as in play.
Now we can see why David Goldman’s political entrepreneurship
(although not necessarily his deception) is justified. The issue in ques-
tion is one of democratic, political justice—the most egregious viola-
tions of which even deep democrats acknowledge no majority may
legitimately inflict. Goldman need not go so far as to claim that legal
aid for migrant farm workers is such a precondition of democracy,
whose denial falls outside the jurisdiction of majorities. Though that
is doubtful, the restricted political mandate of California legal aid was
brokered for illegitimate reasons, which do not appeal to some con-
ception, right or wrong, of democratic justice. And clearly, the politi-
cal process that produced Goldman’s mandate scores low in the dem-
ocratic values of deliberation and participation. Valuable, and not
merely formal, democracy is particularly important to establish the
legitimate authority of mandates about justice that fall within the ju-
risdiction of majority rule, because minorities and individuals must
rely solely on their own political voices, not on the institutional
protection of the courts. So, a valuable democracy both directly
strengthens the authority of political mandates and improves the
chances that majorities will decide on legitimate reasons.
In the face of a mandate democratic only in a formal sense, about
an issue of democratic justice, decided on illegitimate reasons, Gold-
man justifiably took the role of a principal player, not a fiduciary
agent, in the pull and tug of politics, and showed merely formal def-
erence to a merely formal authority. If he used his entrepreneurial
skills to raise the political costs of stopping him, he did not offend
against any second-order reason of authority that comes from plural-
ist, interest group politics. Here, another truth in realism: realist poli-
tics in fact cannot generate mandates that have more legitimate au-
thority than conceded by the ethic of political realism.
This should not be interpreted either as a tit-for-tat reciprocity ar-
gument (do unto others as others do unto you) or as a contingent
obligation (do only if others do). Rather, the justification for a nonper-
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L E G I T I M A C Y A N D D I S C R E T I O N 235
suasive strategy of discretion appeals to the nature of the political
mandate’s legitimate authority: if such a mandate has moral author-
ity, it has it only by virtue of the satisfaction of some formal pro-
cedure, not because it is a substantive expression of reasoned princi-
ple or of some “general will,” however that is understood. Therefore,
second-order reasons of authority that arise out of some modus vi-
vendi bargain are different reasons, with different force, than are sec-
ond-order reasons of authority that arise out of a valuable, delibera-
tive democratic process.
When Are Manipulative or Deceptive Strategies Justified?
Since manipulation, lies, and many sorts of secrets corrode the prin-
ciple of publicity on which deliberative democracy depends, these
strategies can be justified only when there is precious little, demo-
cratically speaking, to lose (when formal political mandates lack legit-
imate jurisdiction and legitimate reasoning and democratic value) or,
perhaps, when there is much democratically to gain (when very im-
portant matters of democratic justice hang in the balance).
The most charitable tale we can tell about the deceptive discretion
practiced by Oliver North in the Contra affair is that, far more than a
common-good-based dispute over the wisdom of military involve-
ment in Latin America, it was a legitimacy-based dispute, a struggle
between branches of government for moral authority over the making
of foreign policy. On this view, the Reagan White House had made a
judgment of legitimate jurisdiction and found Congress wanting. On
the scheme developed so far, such a judgment (if made in good faith)
would justify a public but nonpersuasive incentive strategy. One sce-
nario: flout Boland’s meaning through public appeals to foreign allies
and domestic supporters to arm the Contras.
Under this charitable interpretation, can the case also be made for a
secret and deceptive strategy? I think not. There was much, demo-
cratically, to lose. Congress, even if mistaken about its assertion of
jurisdiction, was making a claim based on legitimate reasons, and the
process of congressional decision making—both about the substance
of the Nicaraguan issue and, more generally, about authority over
war powers—was moderately rich in the democratic values. And
nothing, democratically, would be gained by the covert defiance of
congressional authority, in contrast with public defiance. In any case,
this charity is undeserved: the Contra affair, at bottom, was not a
sincere claim of legitimate authority by the president, but a slinky
evasion of the legitimate authority of Congress.
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236 C H A P T E R N I N E
Objections and Refinements
In conclusion, consider three sorts of objection to this account of offi-
cial discretion and democratic legitimacy. The answers to these objec-
tions will help to place and clarify the view put forth here, and point
to further work.
Gresham’s Law and the Externality Condition
The conditions of ideal democracy almost never hold in practice. The
criteria for justified discretion would allow persuasive dissent in vir-
tually all circumstances, and would allow nonpersuasive, open dis-
sent in the normal circumstance of actual democratic decision mak-
ing, where presidents, cabinet secretaries, and legislators act on a mix
of reasons, some legitimate and some not, in response to a mix of
influences, some principled, some not, sometimes deliberating, some-
times trading and maneuvering, sometimes under public scrutiny,
sometimes not. Political mandates will almost always suffer from
some defect in democratic legitimacy or value, so the moral authority
of those mandates will almost always be attenuated, commanding
only a formal deference, thereby approving official entrepreneurship
within merely formal constraints. The criteria of official discretion al-
low too much.
Furthermore, this permissiveness sets in motion a spiral of demo-
cratic degradation. The more that some dissenters exercise nonper-
suasive discretion, the more other actors will respond in kind: sources
of the dissenters’ mandates, to control discretion; subordinates of dis-
senters, because the legitimacy of their received mandates is devalued
by their superiors’ nonpersuasive strategies. Like Gresham’s Law of
bad money driving out good, nonpersuasive political practices drive
out persuasive political practices, and, in equilibrium, all political
mandates result from hard bargaining over interests, not democratic
deliberation about public principles. 45
Here we return to theories of civil disobedience for instruction, this
time from Rawls. 46 Rawls is concerned that excessive civil disobe-
dience might undermine respect for the rule of law and a just con-
stitution, so he adds to his account what amounts to an externality
condition: those who would be civilly disobedient ought to consider
whether their actions, justified on all other grounds, will damage the
45 Cf. Bernard Williams, Morality: An Introduction to Ethics (1972; Cambridge: Cam-
bridge University Press, 1993), p. 96, on a Gresham’s Law in utilitarianism.
46 Rawls, A Theory of Justice, pp. 373–75.
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L E G I T I M A C Y A N D D I S C R E T I O N 237
future capacity of democratic institutions to seek justice. Surprisingly,
Rawls does not mean this to be a Kantian generalization of the form,
“Disobey only if you will that others in similar circumstances dis-
obey,” but rather a hard-nosed, pragmatic judgment about the actual
consequences of one’s actions in a particular case.
In this form, the externality condition can be readily endorsed as a
criterion for official discretion as well: if the democratic consequences
of your entrepreneurship are sufficiently bad, refrain. Whether the
competitive dynamics of the collective action problem are such that
no nonpersuasive discretion is ever justified requires further investi-
gation. But note that the externality condition, for Rawls and for us,
asks for a first-order, substantive judgment about consequences, and
not deference to a second-order reason of legitimate authority.
“Who Is to Say?” and the Humility Condition
This account asks public officials to make judgments at every turn:
judgments about the good, the just, and the legitimate; judgments
about liberal justice and democratic justice; judgments about the legit-
imacy of jurisdiction and the legitimacy of reasons; judgments about
the intrinsic value of a democratic process and, now, about future
consequences for democratic processes. But reasonable people will
disagree at each step about these judgments. Who is to say whose
judgments are authoritative?
The answer given earlier still holds: if guidance is to be given to a
political actor questioning the legitimate authority of her mandate,
then there is nowhere else for her to stand but in her own shoes. She
cannot, without judgment, defer to the very authority whose legit-
imacy she questions. We have tried to develop a sufficiently rich set
of conditions sufficiently distant from the original substantive conflict,
so that the would-be entrepreneur must look beyond the initial dis-
agreement for justification. But there can be no justification of author-
ity without judgment about authoritative claims.
Note well that nothing in this account challenges deference to the
division of expert labor: others, because of their positions, or knowl-
edge, or wisdom, may be much better judges of all the conditions of
legitimacy discussed so far; and, by serendipity or wise institutional
design, those who are legitimate authorities by virtue of a division of
moral labor may as well be such expert judges—but expertise, by
itself, conveys no moral authority.
A would-be dissenter would be foolish and morally irresponsible
not to seek out the best available help in making judgments about
substance and legitimacy, and may judge that deferring to the judg-
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238 C H A P T E R N I N E
ment of an expert is more accurate than making all judgments herself.
But this sort of deference is to expert, not to moral, authority. The
moral irresponsibility of one who neglects expert opinion is a failure
to judge, not a failure to obey.
One of the more ugly attributes of political entrepreneurs like Ol-
iver North is a confidence, an arrogance, a militant righteousness
about their cause. Humility, a recognition of the fallibility of one’s
judgment, is a rare and noble virtue in public life. Democratic dis-
senters, because they act against the judgments of the many, must
practice a special sort of humility, seek whatever wisdom is available,
and safeguard against overconfidence or special pleading in their
own judgments by taking cooler counsel.
Is This a Partisan View of Democracy?
No political theory can be neutral with respect to everything and still
say something. But is this account of official discretion committed to a
particularly narrow interpretation of democratic principle? What
must one accept about democracy for one to accept the criteria of
discretion presented here?
The scheme depends on commitment to a democracy that is both
deliberative and liberal: deliberative, in that, to at least some degree,
under some circumstances, the preferences and political views of citi-
zens can and ought to change through reasonable discourse; liberal,
in that the liberties of individuals are valuable, and that at least part
of the value of individual liberties does not depend on valuation by
others—and in particular, does not depend on valuation by a major-
ity of citizens. Because this version of democracy is liberal, the de-
mands of justice and the will of democracy can conflict; because it is
deliberative, under some conditions (perhaps difficult to specify and
difficult to attain) the outcomes of democratic deliberation and the
demands of justice could converge. This conception of democracy is
broadly consistent with the views of writers as diverse as Mill, Rawls,
and Habermas.
Much is made here of the contrast between legitimate political
mandates and merely formal political mandates. For this distinction
to do work, it requires an account of meaning and interpretation, which
I have not begun to provide. But I do not believe it requires any par-
ticular account of meaning and interpretation. It certainly does not
require anything like the doctrine of original intent, with which I
have little sympathy. As with the difference between the more liberal
Dworkin and the more democratic Walzer about jurisdiction over lib-
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L E G I T I M A C Y A N D D I S C R E T I O N 239
eral justice, one’s view about meaning and interpretation could lead
to different substantive results. So be it.
Taylor Branch wondered whether we have to take our Otepkas
with our Ellsbergs; we wondered about having to take our marine
colonels with our poverty lawyers. The answer is no: we can find
principled grounds to distinguish one act of official discretion from
another, principled grounds that have gained some distance from our
perhaps partial judgments about the rights and wrongs in the under-
lying political conflict. But we and dissenters may disagree in our
judgments about legitimate authority as well, perhaps for the same
political-philosophical reasons that give rise to the substantive dis-
pute in the first instance. When it comes to legitimacy, it’s judgment
all the way down.
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