Designing for Robustness: Overcoming Systemic Risk in the Political Branches,
103 Cal. L. Rev. 433
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol103/iss2/5
In October 2013, the President and Congress failed to agree on an appropriations bill or continuing resolution to fund government services. That inciting incident prompted a sixteen-day government shutdown. The effects of this shutdown created a chain reaction emanating from Independence Avenue to Wall Street to Main Street, crippling government services, and costing the country billions. Historically, the separation of powers has helped the U.S. political system to thrive. However, the 2013 crisis shows that sometimes the checks and balances written into the Constitution exacerbate, and are insufficient to manage, breakdowns that can grind the government to a halt and cast a shadow over the entire country.
This Comment applies the concept of systemic risk, borrowed from the study of financial institutions and the sciences, to analyze these sorts of catastrophic political breakdowns. It models the political branches of the federal government as a system of nodes (the agencies and branches of the federal government) and links (the instruments by which they exert influence over each other). Through modeling, this Comment argues that the federal government shutdown is similar in form and consequence to systemic breakdowns in mechanical and institutional designs. The modeling also makes it possible to identify ways to increase the robustness, or resilience to systemic risk, of the political system. This Comment offers and examines three robust design features in the federal government context that have been gleaned from institutional design research in financial, political, and industrial fields: redundancy, feedback, and quality. These design features serve a dual role. First, they permit a careful scrutiny of the systemic risks inherent in our legislative process. Second, they are a lodestar by which a more robust federal government system can be plotted. Considering the dire consequences of the most recent federal government shutdown of 2013, academics, politicians, and jurists can and should consider the threats posed by systemic risks and the value of designing for robustness to mitigate future breakdowns in the political process.