1. Why we need a theory of the Principled Politician

Buchanan contributed to two interrelated but distinct kinds of work: (1) the analysis of in-period political actors given a set of rules ^{Footnote 3} and (2) evaluation of which rules are preferable. Neither romanticizes government or political actors as principled, efficient and common good oriented, choosing instead to assume Homo economicus (Kirchgässner Reference Kirchgässner2014; Kogelmann Reference Kogelmann2015). Hence, ‘Politics without Romance’ (Buchanan Reference Buchanan1979 a). ^{Footnote 4} Neither enterprise claims to need an ethical theory of the politician.

In the empirical analysis, it is easy to see why. The positive branch unromantically analyses the in-period behaviour of political actors given an already established set of rules (Buchanan Reference Buchanan1979 a: 52–56). Here, politicians are assumed to be the non-tuistic, maximizing, self-interested Homo economicus. As Kirchgässner (Reference Kirchgässner2014) argues, Buchanan’s Homo economicus ranged from agents merely not assigning others independent weight in exchange scenarios (Buchanan and Tullock Reference Buchanan and Tullock1962) to the view that both others’ interests and ethical considerations are excluded from consideration (Brennan and Buchanan Reference Brennan and Buchanan1981). In either case, rules and persons only matter if they are related to the politician’s goals. While politicians need not be modelled as exclusively concerned with monetary gains, money always plays some role (Buchanan Reference Buchanan1987).

Politicians, then, are assumed to be credit-claiming, ambitious, interested in reelection, budget maximizing and differentially interested in terms of their preferred policy outcomes. In part, these assumptions prove useful across contemporary empirical economics and political science because politicians often act as if they are true (e.g. Mayhew Reference Mayhew1974; Rohde Reference Rohde1991; Cox and McCubbins Reference Cox and McCubbins2005; Aldrich Reference Aldrich2011). As I discuss in section 2, unromantically designed institutions emphasize the self-seeking side of politicians, creating the conditions for opportunistic decay.

Critics have argued the unromantic understanding of politics is immoral and degrades public spirit (Kelman Reference Kelman1987; Frey Reference Frey1997).Footnote ⁵ In response, Buchanan mentions a preference for ethical politicians, but no theory of the Principled Politician appears (Buchanan Reference Buchanan1979 a: 59, 1979b, 1983: 24, 2005; Brennan and Buchanan Reference Brennan and Buchanan1988).Footnote ⁶ Buchanan’s later philosophical work (Reference Buchanan2005) recognizes a set of citizen character traits, preferences and abilities as a precondition of the liberal society, implying that good games do depend on good players. Through all this, a theory of the politician is hinted at, but not spelled out. Instead, Buchanan responded to this ‘immorality objection’ by shifting perspective away from agent characteristics and toward constitutional choice. Buchanan argues immorality may be avoided without relying on good politicians: good rules, not good players (Brennan and Buchanan Reference Brennan and Buchanan1985: 53–75; Kirchgässner Reference Kirchgässner2014).

To that end, Constitutional Political Economy (CPE) seeks institutional arrangements which economize personal restraint, selecting rules which minimize the maximum amount of harm public actors can do were they to seek their self-interest (Buchanan and Tullock Reference Buchanan and Tullock1962: 287; Buchanan Reference Buchanan and Hanusch1983). CPE seeks to limit the discretion of politicians, arguing they will probably use power to their own, rather than others’ advantage (Brennan and Buchanan Reference Brennan and Buchanan1985: 72–74). Of course, this means if there are “well-intentioned and far-seeing” politicians, some CPE-preferred rules will prevent agents from doing the most they could for the public (Brennan and Buchanan Reference Brennan and Buchanan1985: 60–62). In The Reason of Rules, Geoffrey Brennan and Buchanan summarize their use of Homo economicus by quoting David Hume:

Whether by directing private interest to public good or by constraining discretion among politicians, the aim is to design rules which limit the “harm that governments can do, while preserving the range of beneficial governmental-collective activities” (Brennan and Buchanan Reference Brennan and Buchanan1985: 167). The Homo economicus assumption is preferable to the extent it leads to institutions which prevent more harm than good which they foreclose (Brennan and Buchanan Reference Brennan and Buchanan1985: 67); we ought to design constitutions to channel politicians’ narrow self-interest toward the general interest.

Further, Buchanan argued Homo economicus (or a politician) would arrive at fair arrangements. If the rules under discussion are genuinely general and unlikely to change again in the near future (creating a veil of ignorance), then even self-interested actors will choose fair rules because they cannot adequately determine whether an unfair rule will benefit them in the long run (Brennan and Buchanan Reference Brennan and Buchanan1985: 165). This argument may even apply to politicians outside the veil-of-ignorance constitutional context. Buchanan and Congleton (Reference Buchanan and Congleton1998: 58) argue in a later work, that non-myopic self-interested actors may choose to move rules toward generality, somewhat ameliorating the need for rare constitutional moments. If elections are competitive, coalitions cycle into (and out of) the majority position. Such cycling may make the practice of majoritarian, counter-generality politics a bad option for self-interested actors. Under those conditions, there is no guarantee politicians will enjoy the majority position. ^{Footnote 7} Over a number of works, Buchanan, Gordon Tullock, Geoffrey Brennan and Roger Congleton argue even Homo economicus may agree to generally applied laws, separation of powers, a supermajoritarian decision procedure, bicameral legislature, presidential veto and a balanced budget amendment (Buchanan and Tullock Reference Buchanan and Tullock1962; Brennan and Buchanan Reference Brennan and Buchanan1985; Buchanan and Congleton Reference Buchanan and Congleton1998). But self-interest is unreliable.

When discussing how agents interact with rules, Buchanan’s defence relies on a distinction made in Vanberg and Buchanan (Reference Brennan and Buchanan1988) between action interests and constitutional interests. The distinction matches the difference between in-period play given a particular set of rules and the constitutional choosing of rules: action interests are the preferences of agents within a certain set of rules, while constitutional interests are the preferences of agents over alternative sets of rules. Vanberg and Buchanan argue these interests are separable:

The challenge is to align the contingent empirical facts so the citizen’s action interests align with their constitutional interests, thereby solving the issue of establishing order out of self-interest. This mirrors later arguments made by Weingast (Reference Weingast2005) and de Lara et al. (Reference de Lara, Greif and Jha2008) analysing self-enforcing constitutions. In both Vanberg and Buchanan’s argument and the self-enforcing approach, institutional arrangements persist because they comport with the self-interest of agents within the rules. Again, ‘good games depend on good rules more than they depend on good players’ (Brennan and Buchanan Reference Brennan and Buchanan1985: 167). If we want publicly minded politicians, we ought to change our constitution to eliminate particularity: get rid of laws which offer special treatment in any way and replace them with laws of generality (Buchanan Reference Buchanan1993). A preference for fair politicians is mentioned, but the emphasis is on rules.

Unfortunately, there are several reasons this response is unsatisfactory. First, the relevance and robustness of CPE is severely limited because few genuine veil-of-ignorance opportunities to improve the rules occur. Buchanan was pessimistic about our actual institutions, believing them to be shot-through with particularity (Buchanan Reference Buchanan, Phelps and New York1975: 340–345; Brennan and Buchanan Reference Brennan and Buchanan1985). CPE relies heavily on such constitutional moments to explain how even self-interested actors may arrive at improved rules. Such opportunities are rare.

Perhaps Buchanan’s approach can eliminate the need for good politicians by bringing about perfectly designed institutions? Even if we grant this possibility, it severely narrows the theory’s relevance and robustness. Buchanan’s approach would avoid the need for principled politicians only in perfect institutions. We are already stuck with imperfect institutions and the politicians they house and attract; claiming that better institutions would be preferable side-steps the objection that there is an important place for the Principled Politician in Buchanan’s theory. While Buchanan discusses the potential for courageous actors to improve institutional arrangements in ‘The Samaritan’s dilemma’ (Reference Buchanan, Phelps and New York1975), this does not address the problem of decay. True, Buchanan and Congleton (Reference Buchanan and Congleton1998) demonstrate how self-interested politicians might choose to improve rules under specific conditions. But such improvements depend on non-myopic politicians who stand to gain more from fair than unfair rules. If very specific (and perhaps rare) conditions must be met to produce good results among otherwise self-interested actors, then Buchanan’s approach to the project of real-world constitutional improvement is rather frail. ^{Footnote 8}

Second, and most pressing for this paper, the effectiveness of Buchanan’s approach is undercut by real-world constitutional decay. Self-interest cuts both ways: if self-interested actors occasionally see reason to improve rules, there are also cases where self-interested actors choose to serve themselves instead of maintaining or improving the rules. While there is a theoretical difference between constitutional and action interests, it is naive to assume that politicians keep these two sets of interests separate. The difference between Vanberg and Buchanan’s approach and the self-enforcing literature is telling. As both Weingast (Reference Weingast2005) and de Lara et al. (Reference de Lara, Greif and Jha2008) point out, institutional arrangements are established and maintained because powerful actors can see that such arrangements serve their action interests. The infamous 3/5ths compromise in the US Constitution was not reached because members of the convention bracketed their action interests. It was reached because it comported with their self-interest. Changes which make election results easier to overturn or which restrict voting rights for targeted populations are not made by politicians who have laid their action interests to the side.

Similarly, constitutions will be weak if they depend on rule enforcement to be continuously compatible with the enforcers’ self-interest. Presidential impeachment is a salient example. Since impeachment is carried out by political actors, often many (even half) of whom are of the same party as the politician ‘on trial’, we have little reason to expect justice drives their decision if they are merely self-interested actors. If politicians are like Homo economicus, then opportunities to weaken a constitutional order will be difficult to avoid. It is the height of romance to believe institutions may be designed beyond the need for individual ethical commitment; no institution is perfect.

This brings Vanberg and Buchanan’s argument to a head. While agents may prefer rules which establish promise-keeping and then later choose to violate the rule, this is quite different from the position of politicians. The politician does not merely prefer a rule, violate it and endure punishment. Instead, she may prefer a rule in general and then refuse to enforce it in a particular case, effectively nullifying it in that instance. Further, she may prefer a rule in general but act to change it when it suits her narrow interests, abrogating the rule. This is something wholly different from violation, it is decay: the drift of rules away from fairness and generality toward discretionary power and partiality. ^{Footnote 9}

The decay of good rules highlights a gap. Buchanan does not adequately address the following situation for the politician: a choice between (a) an action which will further their self-interest and (b) an action which will protect some already accepted, good rule, but which does not further their self-interest. If politicians resolve such choices in favour of their self-interest, constitutions will crumble and fail.

Bracketing the problem of veil-of-ignorance constitutional moments and reform, I propose a theory suited to and, in part, derived from Buchanan’s corpus which shows the ethical role of politicians to preserve the health of constitutions: a theory which helps prevent the decay of constitutions in the first place. Unfortunately, as I show in sections 2 and 3, we should expect unromantic institutions to exacerbate this problem through character formation. While I will develop the theory further in section 4, a preliminary view of the Principled Politician is appropriate.

The Principled Politician is characterized by fair play constitutional commitment, a lexically prior commitment to the extant constitutional arrangement which orders how they think, feel and act. Fair play combines elements of Vanberg and Buchanan’s (Reference Vanberg and Buchanan1988) theoretical distinction between action interests and constitutional interests with aspects of Buchanan’s view of citizen characteristics in a free society (Reference Buchanan2005). Namely, members of a free society must operate more upon principled observation of ethical norms than upon opportunism. The challenge of fair play comes into focus when ethical behaviour is not conducive to the politician’s institutionally defined self-interest. The Politician fulfils their constitutional commitment by exhibiting restraint, acting on what is constitutionally right rather than what merely comports with self-interest. This may mean voting against the anti-democratic demands of constituents or refusing to undercut an independent judiciary. Importantly, knowing what to do is insufficient: one must have the ability to resist self-interest in crucial cases. ^{Footnote 10}

Buchanan expressed a preference for non-Homo economicus public actors, even going so far as to claim that a free society is not possible without principled members. But Buchanan’s unromantic theory counsels us to rely upon improved institutional arrangements, not upon better politicians. The heart of Buchanan’s work is admirable: dispel Romanticism, analyse and design institutions which actually work. But making institutions work is interwoven with questions of who human beings become. I turn now to how, by Buchanan’s own lights, we should expect politicians to become more like Homo economicus the longer they occupy our political institutions. In the absence of constitutional commitment, the Problem of Low Expectations takes shape.

2. Becoming Homo economicus

If human beings do not change over time, then politicians will not become more like Homo economicus under any institutional arrangement. However, if human beings do change over time, then unromantic institutions may make politicians more like Homo economicus. In Buchanan’s theory of becoming, we find human beings possessed of something like Rousseauian perfectibility (Buchanan Reference Buchanan1979 b: 252). ^{Footnote 11}

‘Man wants liberty to become the man he wants to become’ (Buchanan Reference Buchanan1979 b: 259). This slogan points directly to the connection between who we are able to become and the rules which bind us. ^{Footnote 12} For Buchanan, humans know we can, ‘within limits, shape the form of being that we shall be between now and the time of death, even when we fully reckon on the stochastic pattern of life expectancy’ (Buchanan Reference Buchanan1979 b: 247). Human beings are more than merely natural, they are artefactual: a product of their own imagination, effort and institutions.

To the extent rules of conduct, culture and institutions are the result of choice and continual adherence on the part of the individual, then those rules are artefactual – and so play an intentional role in the process of becoming (Buchanan Reference Buchanan1979 b: 247). Just as an individual’s choices matter to who she becomes, how we choose to live, govern, worship and work together is essential to becoming (e.g. Ostrom Reference Ostrom2000). An individual may unilaterally choose to invest in some forms of becoming, but these will always be subject to natural, non-artefactual and artefactual constraints. Further, there is a connection between the moral character of individuals, and the public constitution of human beings, the character of society (Buchanan Reference Buchanan1979 b: 252). This connection has led some to emphasize Buchanan’s constructivism and its connection to becoming as an alternative conception of the human being: Homo Constitutionalus (Aligica Reference Aligica and Wagner2018; Congleton Reference Congleton and Wagner2018). For Buchanan, human beings are rule bound, not rule determined (Congleton Reference Congleton and Wagner2018): we may become morally better or worse within an institutional context. This means that while there is no room for angels, there may be room for fair play. To flip Machiavelli, politicians may learn ‘how not to be bad’.

Consider some hypothetical agent, Jones, who wants to quit smoking (Buchanan Reference Buchanan1979 b). Jones may simply attempt, through willpower, to resist temptation. He may also leave his cigarettes at home or contract a third-party enforcer. While Jones chooses to maximize his utility at any given moment, his utility calculus is subject to constraints: if he is punished, smoking may not be ‘worth it’. Eventually, smoking is no longer preferred, even without the constraints. Jones becomes the sort of person who does not want to smoke. Importantly, Buchanan notes the development of morals and motivation also follow this pattern (Buchanan Reference Buchanan1979 b: 253). Buchanan’s theory explains how personal commitment and institutions allow us to improve.

But if human beings change, they may change for the worse. Are unromantic institutions desirable for becoming? Buchanan and Tullock (Reference Buchanan and Tullock1962) respond in the The Calculus of Consent:

And again in Buchanan’s appendix to Calculus:

But, the theory of becoming argues institutions help shape who we become, our abilities, our preferences, our morals. It is unhelpful to state that the evaluative standards of institutions and individuals differ and maintain their outcomes are interrelated. Individuals within institutions are shaped in part by their own will, but are always being shaped by their institutional context as well. It is possible to accept Buchanan’s institutional approach as desirable, but we must count the cost of success in terms of becoming. In later works, Buchanan seems aware of this:

So, there is a tension: we must design political institutions to economize personal restraint, acknowledging this approach may emphasize self-interest relative to other motivational elements such as constitutional commitment.

Buchanan’s preferred institutional arrangements and approach, which economize personal restraint, will lead to agents lacking in the ability to preserve a rule if it conflicts with their self-interest. In fact, Buchanan and Tullock almost make this point in Calculus:

Where an enforced rule constrains behaviour, the need for personal, moral restraint is lessened. This fact is nearly the core of why CPE exists: design rules so when a politician acts in their self-interest they often also do what is right.

Bringing together Buchanan’s theory of becoming and institutions, we see how a decreased need for personal restraint can lead to individual weakness of personal restraint. Relatedly, politicians must often keenly discern what is in their narrow, electoral interest. From the preceding discussion: (1) All becoming beyond what is merely natural is subject to short-term and long-term opportunity costs. (2) Even if costs in (1) are difficult to calculate, evaluating the relative value of becoming-related decisions is structured by one’s institutional environment; institutional environments incentivize some skills over others. (3) In the context of unromantic institutions where institutional constraint is prevalent, personal restraint is a costly-to-attain personal capacity. If (1), (2) and (3) are true, then (4) where personal restraint is not often needed, agents will have pro tanto reason to invest in some other capacity. This means politicians will often lack the ability to take actions which they believe to be right but which do not comport with their self-interest. To such a person, a rule is not valuable in itself or for fairness’s sake – or at least the value of fairness will often be overridden by one’s self-interest. On this perspective, a rule is only valuable to the extent it facilitates the pursuit of the politician’s goals. As I discuss in section 3, this is an important ingredient in democratic backsliding.

But what is this like for the politician? Jones may see how becoming a non-smoker is cheaper and better for him once he must pay an extra fee for smoking. Buchanan makes much the same argument in ‘The Samaritan’s dilemma’: where welfare benefits are too high, the recipient has little incentive to find work and develop an ethic of responsibility (Buchanan Reference Buchanan, Phelps and New York1975). Similarly, the politician’s institutional environment increases the costs of personal restraint, highlighting the advantages of becoming more like Homo economicus.

Consider how competitive elections swell the presence of politicians who increasingly resemble the narrowly motivated Homo economicus. Competitive elections have the effect of both (1) crowding out personal restraint and (2) incentivizing politicians to become narrowly self-interested. The arrangements I describe in competitive elections, including parties, are hardly ideal, perhaps even by Buchanan’s standards. Indeed, Buchanan argued that in the absence of non-electoral constraints, elections were insufficient to prevent abuses of power (Buchanan Reference Buchanan1979 a; Brennan and Buchanan Reference Brennan and Buchanan1980).

Two notes of clarification before addressing (1) and (2). First, the argument below proceeds even if non-electoral constraints are in place (e.g. politicians may not use campaign donations to pay for vacation homes). Second, Brennan and Hamlin (Reference Brennan and Hamlin1995) argue that if personal restraint is needed in the public sphere and we assume agents are stable over time, then an imperfect screening mechanism may improve the allocation of such people in government. ^{Footnote 13} Perhaps Brennan and Hamlin are right, granting even an imperfect screening mechanism for personal restraint and granting agents do not change over time. Unfortunately, as Buchanan argues, agents do change over time, and as I argue below, the screening mechanism we have in place for politicians does not select for personal restraint. But the charge is not that ideally implemented institutions are subject to the Problem of Low Expectations. Instead actual, imperfect political arrangements will move away from ideal constitutional principles if politicians resemble Homo economicus. Unromantic institutions may facilitate rather than ameliorate decay by making it more likely for politicians to resemble Homo economicus. In what follows, I describe what occurs if politicians attempt to operate without a commitment to fair play. ^{Footnote 14}

First, take crowding out. Brennan and Buchanan (Reference Brennan and Buchanan1985) argue the self-interested behaviour of only a few actors will induce all actors to respond in kind. ^{Footnote 15} As Kogelmann (Reference Kogelmann2015) rightly argues, Brennan and Buchanan over-apply the crowding out argument in favour of the Homo economicus assumption: it depends on the incentives in place. The presence of Homo economicus anywhere will not result in all other actors behaving self-interestedly. Unfortunately, competitive elections are one such arena where Homo economicus will induce similar behaviour in other actors.

Because there are a limited number of highly valued positions which are not structured by marginal gains and losses but by winner-take-all arrangements, electoral politics will often result in politicians behaving like Homo economicus. ^{Footnote 16} The presence of Homo economicus in such an environment ‘raises the cost’ of non-self-interested behaviour differently than the market. While a business may receive fewer customers than its competitor and still stay open, the politician with fewer votes is eliminated in electoral defeat. Hence, the cost of non-self-interested behaviour for the politician is much higher. If one’s competitor behaves like Homo economicus, it will produce similarly self-interested behaviour in all candidates, or they will be crowded out.

Consider the institutional life of some hypothetical elected politician, Jordan. Jordan holds office in a competitive electoral district and must run for reelection every two years. Given the dynamic described above, Jordan must effectively seek their self-interest to retain a seat. Jordan must assess opportunities for fundraising, committee appointments, policy positions and roll-call votes. Jordan’s ability to claim credit, raise money for campaigns and network with more powerful members of the party will impact their electoral chances.

There are few, if any, enforceable rules which lead Jordan to directly consider what is best for the country or institutional health. Instead, Jordan’s feedback mechanisms are linked to reelection. Of course, Jordan may have other goals (e.g. policy) but those become subordinated to the goal of reelection. Rather than bracketing their constitutional interests from their action interests, Jordan will think primarily in terms of how rule changes and particular actions relate to the goal of reelection. Indeed, if Buchanan’s example of the smoker is indicative, Jordan will become someone who values reelection first and foremost.

Granted, perfect institutions which obey Buchanan’s desired generality principle would train Jordan to seek the general interest even in the absence of institutional constraints. But, as Buchanan (Reference Buchanan1993) points out, we are not in such a situation. There are many particularities which train Jordan away from general interest and toward special interests. Constituents, lobbyists, special interest groups, political action committees and political parties are, almost by definition, not concerned with the general interest or constitutional health. Jordan is not becoming someone especially attendant to their institution’s health, but someone who thinks, feels and acts in their own self-interest.

Thankfully, Jordan is not determined by their context to become more like Homo economicus. However, without a commitment to fair play, politicians are merely shaped by unromantic institutions which make personal restraint costly. If Jordan lacks an independent commitment to the rules, they will likely be swept up in political competition. This is only the first part of the Problem of Low Expectations: politicians under unromantic institutions will become more like Homo economicus. But all this amounts to very little if such politicians do not actually present a problem for the maintenance of good rules. Jordan may become more and more like Homo economicus, but if no real threat to our institutions results, Buchanan’s approach is a success. Unfortunately, politicians like Jordan eventually face decisions where self-interest leads to constitutional decay.

3. Democratic backsliding, action interests and constitutional interests

If politicians lack the necessary restraint to act in favour of the rules rather than their self-interest, there will be real costs. In this section I draw on the democratic backsliding literature to generate a clear hypothetical demonstrating the failure to which Buchanan’s approach is vulnerable: choices between self-interest and rule maintenance (Bermeo Reference Bermeo2016). As Bermeo (Reference Bermeo2016: 15) points out, backsliding is often in the politician’s self-interest. While there is a theoretical distinction between action and constitutional interests, the distinction lacks a difference when politicians make opportunistic rule changes. While Bermeo’s examples come from Turkey and Ecuador, countries such as the USA are not exempt: self-interested politicians often act against constitutional health and for themselves.

One of Buchanan’s goals in Constitutional Political Economy is limiting the discretion of politicians. By reducing discretion, we reduce the risks associated with the misuse of state power. Federalism, checks-and-balances and the separation of powers are integral to this task, often through limitations on the use of funds and the power to tax. While there are instances where granting power is legitimate, Brennan and Buchanan (Reference Brennan and Buchanan1985: 72–73) argue those who most desire greater discretionary power are those who wish to wield it, not for the benefit of others, but for themselves. Only someone who believes despots are benevolent would eliminate restraints on executive power (Brennan and Buchanan Reference Brennan and Buchanan1980: 211). Therefore, an institutional change allowing greater discretionary power has sustained a significant failure. Buchanan’s dislike for discretionary power sits in uncomfortable alignment with a trend in democratic backsliding toward executive aggrandizement (Bermeo Reference Bermeo2016).

Consider the politics of the hypothetical country Jedesland. ^{Footnote 17} After an economic downturn, increased polarization and concerns over national security, Sarah Strong is elected President of Jedesland. Pres. Strong aims to position her party (the SP) for success in future elections by increasing her own power and electoral prospects. Representative Jordan, from section 2, holds elected office in Jedesland’s national legislature and is a member of the SP.

Rather than conducting a coup, Strong decides to push for incremental changes to policy and the constitution. Strong aims to enlarge her power through greater executive discretionary spending, emergency powers, court-packing and lower protections for an independent press. These changes are conducted through legitimate channels which depend on the cooperation of politicians like Rep. Jordan, but strike against previously adopted rules. Following the backsliding literature, Pres. Strong and members of the SP enjoy democratic support for their actions and are set to increase their control in the next election.

Rep. Jordan and other members of the legislature should slow or even reverse executive aggrandizement. Of course, members of the opposition challenge Strong because it is in their interest to do so: their party, constituents and donors disagree with Strong and her agenda. But the opposition is in the minority. Protecting the constitution depends on action from within Strong’s party. However, Strong’s popularity and political prowess mean that she can punish defection with poorer reelection prospects. For members of the SP, opposing Strong means choosing between protecting one’s job and protecting the constitution.

Each time members of the SP are asked to go along with President Strong’s goals, they face a choice: act in their own self-interest (and with Strong) or act to maintain rules and face electoral backlash and party retribution? If, like Jordan, politicians have become more like Homo economicus because of their institutional environment, then they will be more likely to side with Strong over the rules. The events in Jedesland are a clear failure by Buchanan’s own lights. Dilemmas between self-interest and the constitution have resulted in repeated, incremental increases in discretionary power for the executive. Complexly, executive aggrandizement enjoys democratic support. To protect the constitution, members of the SP will have to act against their self-interest and, at least in the short-term perspective, against democratic wishes. The need for constitutional commitment is evident: politicians like Jordan need to exhibit personal restraint to slow or stop executive aggrandizement.

As events in Turkey, Ecuador and Poland show, the hypothetical is not far-fetched (Eisen Reference Eisen2019). Consider a case from the USA. On 25 February 2019, US Republican Senator Thom Tillis wrote an op-ed in the Washington Post (Tillis Reference Tillis2019). In the op-ed, Sen. Tillis explained that while he agreed with Republican President Donald Trump’s goal of securing the border with Mexico, declaring an emergency to achieve that end would be inappropriate. Sen. Tillis objected to the use of emergency powers by the President because of his goal to preserve the separation of powers embodied in the US Constitution:

Sen. Tillis had a principled commitment to fair play and would not grant an exception in his own case: ‘acceptable for my party but not thy party’ was something he could not stomach. Sen. Tillis even hints at the difference between his action interests (to please President Trump) and fair constitutional interests (to maintain the established rule). This is exactly the sort of principle Jordan needed to check the expansion of discretionary power to protect the extant rules. Unfortunately, when it became clear his constituents did not support his stance against the President, Sen. Tillis sought a compromise, then completely flipped his position, and voted in support of President Trump on 14 March 2019 (Blake Reference Blake2019). Fortunately, several other actors moved against the President’s attempt to increase discretionary power (Clark Reference Clark2019).

First, since executive overreach was prevented, doesn’t the example demonstrate a success? Not exactly. Sen. Tillis demonstrates the Problem of Low Expectations: when presented with the perfect opportunity to exhibit personal restraint and defend the constitution, Sen. Tillis acted in his self-interest instead. Buchanan lacks a theory of the ethical politician and so is virtually silent with respect to what politicians should do in the hypothetical or real-world cases above.

Second, isn’t Sen. Tillis’s choice a function of his commitment to represent his constituents rather than self-interest? As the backsliding literature argues, actions which undercut the constitution often enjoy democratic support (Bermeo Reference Bermeo2016). It was in Sen. Tillis’s self-interest to support the President because that action would translate into better electoral outcomes. Backsliding and democratically supported action are not mutually exclusive.

As Buchanan observed, human beings face complex moral questions and are themselves a mix of good and bad, self-interested and altruistic (Buchanan Reference Buchanan1986 b). The Problem of Low Expectations is that politicians will, ceteris paribus, become more likely to choose their self-interest rather than exercising restraint the longer they operate within unromantic institutions. This an internal, constructive criticism of Buchanan because the (lack of) personal restraint of politicians is shaped by the institutions which they inhabit. In turn, politicians are faced with choices which, if resolved through self-interest, undermine Buchanan’s normative goals. Good rules sometimes depend on good players, so we need a theory of good players.

4. The Principled Politician and fair play

The Problem of Low Expectations (a problem of decay) arises from the well-founded impulse to limit the need for personal restraint among politicians, a theory of becoming in which institutions play a leading role, and instances where preserving rules conflicts with self-interest. A character-driven backstop is needed. But what makes a good player in the political game? What is the ethical baseline? I begin by highlighting a relevant aspect of Buchanan’s thought. While he did not develop an ethical standard specifically for politicians, much of what I advance is drawn from Buchanan’s work. Then, I refine Buchanan’s broad view to one specifically suited to the Problem of Low Expectations.

In his discussion of classical liberalism, Buchanan (Reference Buchanan2005) discusses four dimensions of individual character varying between two poles in each: (1) Self-governance vs. Dependency, (2) Kantian Interdependence vs. Opportunism, (3) Understanding and/or Forbearance vs. Romantic Meddling, and (4) Intolerance vs. ‘Supertolerance’. Buchanan characterizes dimensions 1–3 as perfection at one end of the spectrum, disaster at the other. A free society is possible when most members do not live life dependent on their governments, break rules opportunistically, or throw quixotic wrenches into the workings of policy, government and economy. Buchanan then suggests that Tolerance must mean that many members may live and let live, but enemies of a free society need not be tolerated (so one end is not ‘perfect’ along this dimension). So, to say Buchanan had no view of character in a free society whatsoever is false. Indeed, Buchanan (Reference Buchanan2005: 19) thought rules were insufficient: human beings must hold some ethical commitments or maintain a particular character to enable the free society. At least in the general order of society, Buchanan acknowledges that good rules depend upon good players.Footnote ¹⁸

However, this paper is not concerned with the broad topic of a liberal society to which Buchanan addressed his remarks. Instead, the task is to identify and provide a theoretical solution to the Problem of Low Expectations, a problem of opportunistic rule change and enforcement among politicians, thereby preventing democratic backsliding. Given the nature of the problem discussed in this paper, the crucial dimension is (2) above: Kantian Interdependence vs. Opportunism. Buchanan’s comments on this dimension differ in tone enough from the previous sections that he must be quoted at length:

Buchanan’s contention is that a free society is less likely (perhaps impossible) if most of its members are pure opportunists rather than Kantians. Buchanan goes so far to say: ‘If the law alone constrains the opportunists, what constrains those who enforce the law?’ Here, Buchanan is aware of the need for ethical politicians, but has not acknowledged the tension within his view: politicians exist within institutional arrangements which emphasize opportunistic tendencies leading to decay. An ethical theory for politicians is needed.

The Principled Politician is characterized by fair play constitutional commitment or simply fair play. Fair play is a lexically prior commitment to the rules which orders how the politician thinks, feels and acts. The Principled Politician plays to win but will not opportunistically alter the game through uneven rule enforcement or unfair change. Fair play combines elements of Vanberg and Buchanan’s (Reference Vanberg and Buchanan1988) distinction between action interests and constitutional interests with the general standard of Kantian Interdependence vs. Opportunism (Buchanan Reference Buchanan2005). Crucially, the Principled Politician can act with personal restraint: they are able to do what they see to be right, even in the presence of narrowly self-interested incentives to the contrary.

First, consider the combination of Kantian Interdependence and the distinction between action interests and constitutional interests. As discussed, the distinction between action and constitutional interests (Vanberg and Buchanan Reference Vanberg and Buchanan1988) does not solve the problem of opportunistic rule change and enforcement. Since politicians can discern how rule changes will benefit their narrow goals, opportunism is possible and the distinction between action and constitutional interests collapses as rules are altered to suit action interests. However, the distinction does allow the politician to see the analytical difference between playing the game to win within the given rules and changing the game in order to improve their chances of winning. A pure opportunist will take any advantage, while a Principled Politician will play within the rules.

As section 2 argues, there is reason to expect that politicians who merely seek their interest will become more opportunistic. But if politicians are principled regarding rule change and enforcement, the distinction between action interests and constitutional interests is fruitfully applied. The Principled Politician must, when presented with a potential rule change, discern whether the rule either (a) increases the unfairness or particularity in the system of rules, (b) has no effect or (c) increases fairness or generality in the system of rules. Further, knowing the right thing to do is insufficient: acting on this knowledge is the ethical standard.

Is opportunism ever permissible for the politician? Here, lexical priority demonstrates a stark difference between the Principled Politician and the general member of society. While Buchanan argues that Kantian Interdependence covers several behaviours (promise-keeping, non-violence, etc), the ethical domain for the politician is much more limited, if more demanding. Lexically, the politician must first ask: does this matter concern the rules? If yes, opportunism is impermissible for the politician. The politician must not alter or slacken enforcement for narrowly self-interested reasons. However, if constitutional interests are not at play, the politician may engage in opportunism. They may break promises to constituents (and other politicians), flip-flop, and dissemble so long as it does not undercut the rules of the game. These behaviours are still unethical for politicians qua members of society but are permissible within the narrow ethic of the politician. Of course, the politician may observe the broader, stricter standard. But forgoing opportunism regarding rules is the absolute (if uninspiring) ethical minimum politicians must meet.

This approach mirrors the actual commitments politicians make. Consider the Oath of Office all US Senators take:

The ethical baseline is to uphold the rules of the game. It is not to make sure the most just cause wins out, nor to keep promises, nor even to abstain from murder. Indeed, a politician can do more damage to the structure of a free society by altering the rules than by committing murder.

While the politician must not engage in opportunistic rule change or enforcement, they may allow rule changes which move toward fairness through generality rather than toward particularity. If a rule change makes the game fairer, more competitive, or the rules applied more generally, the politician can (of course) pursue such a change. Buchanan discusses the concept of strategic courage, noting that when rules are imperfect, an agent may take on personal costs in the interest of the group to create a new rule (Reference Buchanan, Phelps and New York1975). Similarly, the politician may support rule changes which improve fairness and generality even when they undercut their own narrow interests (e.g. reelection). But, this is not required to solve the Problem of Low Expectations. So, pursuing fair rule improvements which run contrary to one’s narrow self-interest is supererogatory. Such changes are to be celebrated, but not expected as the ethical standard. As discussed above, when rules are sufficiently difficult to change and remain in place for long periods, the politician will have an interest in fair rules (Brennan and Buchanan Reference Brennan and Buchanan1985; Buchanan and Congleton Reference Buchanan and Congleton1998).

How demanding is this theory? It must not set the ethical bar so low that constitutional decay continues but must not set the bar so high as to require a Saint. Saints are unlikely to survive the electoral process, for reasons discussed in section 2. Additionally, Saintly politicians will likely relate problematically with the Zealot, or with Hayek’s theory of immoral totalitarian leadership (Reference Hayek and Caldwell1944: 157–170): leaders may be so driven by purity or ideology that they unscrupulously meddle with the rules to achieve some perfectionist end.Footnote ¹⁹ Instead, the ethical standard of the Principled Politician lands somewhere between the pure opportunist Homo economicus and the zeal-driven Saint.

Politicians may engage in opportunism within the rules but may not opportunistically alter the game. In one respect this is less demanding, since it allows politicians to violate what Buchanan described as general standards of ethical behaviour. In another respect, the standard is extraordinarily strict: no opportunism is permissible regarding rules. Several variables further alter the demandingness of this standard. First, rules may be more or less important to the structure of the political game, and so may be more or less tempting to alter. Rule changes which would garner only minimal gains will be easier to resist than rules which shift the outcomes dramatically in one’s favour. Minor changes to Senate procedure are likely to garner fewer advantages than a new rule changing the voting age to 35 in the USA.Footnote ²⁰

Second, extant rules may be better or worse at economizing personal restraint. Naturally, in the case of ideal, perfectly designed institutions, personal restraint is never needed. Again, this is not a response in defence of Buchanan’s approach, since it is extremely limited in scope: all institutions, even if they include elements of unromantic design, are imperfect. Accordingly, fair play is more demanding the worse the institution is designed. If rules are too easy to change or politicians are often vested with discretionary power, then temptation will abound. We still ought to aim for good rules. With bad rules, we need exceptionally good players.

Third, just as rules may be more or less important to the game, politicians themselves may be more or less important. More power means greater chances for opportunistic rule change or enforcement. Additionally, more powerful politicians will be more likely to ‘get away’ with opportunistic rule changes because of their status. This further eliminates institutional constraints on their behaviour, making opportunism more attractive and fair play more strenuous.

Fourth, this standard does not demand pure motivations. Forgoing opportunistic rule changes may bring the ire of one’s partisans. However, principled behaviour may be bolstered by the esteem of one’s family and friends, and the hope to preserve a legacy. These factors may not always be positive. But, when they are, they may ease the demandingness of sustaining fair play.

Finally, if constitutional commitment required politicians to succeed in protecting the constitution, the fulfilment of their duty would often fall out of their hands. Hence, constitutional commitment is a duty to attempt to protect the rules, not a duty to succeed. Because the preservation of good rules often requires collective action, the action of one politician may not bring about the desired outcome if others do not cooperate. Therefore, the ethical standard must be attempt, not success.

Fair play constitutional commitment provides an ethical standard which allows the politician to compete against Homo economicus and respect law more than the Zealot. When the occasion arises, fair play is a costly duty: politicians must resolve choices between self-interest and the rules in favour of the rules. Because of electoral pressures, this is a duty which makes ridicule and defeat at least as likely as admiration and success. As William Galston (Costa and Rucker Reference Costa and Rucker2019) once quipped: ‘there is a reason Profiles in Courage is a very short book. Courage is not the norm. It’s the exception’. Putting the rules above one’s self-interest may be difficult, but it is necessary when good rules depend upon good players. If politicians are unable to live up to this minimal standard, I take it as an indictment of politicians, not an objection to this theory.