DIFFICULT MORAL QUESTIONS

Question 195: May legislators follow public opinion against their own judgment?

I am thinking of running for the state legislature. But I am hesitant to do so because I foresee various moral problems, including one in particular. Officeholders generally are better qualified than the public—by training, experience, and access to relevant information—to judge what should be done. If I am elected, there will be times when my better judgment tells me to take one position on an issue while opinion polls show that the majority, even the overwhelming majority, of my constituents hold the opposite position. No one who hopes to be reelected can ignore public opinion. Under what conditions, if any, should a legislator make it the decisive factor in determining his or her position?

Analysis:

This question calls for the derivation of norms for the work of legislators. In making decisions, Catholic legislators should not set aside faith and Church teaching. If one knows one’s vote will not affect the body’s action, one can vote with the prevailing group without intending what it does. Without intending wrongly, one can support adoption of the lesser or least evil of available morally evil options, intending thereby to prevent a more serious moral evil. Except in such a case, legislators may never support a proposal morally evil in itself or plainly unjust. If a proposal is neither evil in itself nor plainly unjust, legislators may take constituent opinion into account in judging what will better serve the common good, all things considered. In a parliamentary system, legislators are expected to follow their party’s decision and generally may do so. But they never should support a proposal they judge to be immoral in itself or plainly unjust.

The reply could be along the following lines:

As a basis for responding, I shall recall a number of points, though you no doubt are well aware of most of them.

In forming their consciences about the moral acceptability of proposed legislation, Catholic members of a legislative body should look to their faith and the Church’s teaching, not set them aside. Since these are sources of truth about human good, a legislator who neglected them would fail to fulfill his or her duty as a public servant. The relevant truth taught by the Church also pertains to natural law and so will be accessible to people of good will who are not Catholics (see CCC, 1959).

Every freely chosen human act is either morally good or morally evil, and every political issue is a moral issue to the extent that society’s common good and justice toward individuals and groups are at stake. And though many of the kinds of acts that are always wrong involve sexual activity outside marriage or violate innocent human life, these are not the only issues about which moral compromise is impossible.

Some legislators, confronted with what they recognize as a moral issue, think that clearly stating their principled position early in the proceedings discharges their moral responsibility and frees them to follow the party line or vote as seems expedient. But legislators are morally responsible for everything they knowingly and willingly do, not least for participating in the legislative body’s specific acts. Thus, nothing else a legislator does can free him or her from moral responsibility for the votes cast—or not cast—on proposed legislation.

Because of the complexities of legislative procedure, affirmative or negative votes sometimes have a significance different from the one they might seem to have. For instance, a measure’s opponent might have to vote for it in order to be eligible to move its reconsideration at a later session, when changed circumstances might make it possible to defeat it. In what follows, however, I set aside this procedural complexity, and, for simplicity’s sake, assume that a vote for a measure always expresses support for its adoption and implementation, while a vote against always expresses opposition.

In voting, one generally contributes to a social choice, a joint decision of the group that is voting, and so either chooses what one votes for and intends that it be done or rejects what one votes against and intends that it not be done. However, if one knows on a particular occasion that one’s vote will in no way affect the group’s decision, voting for the proposal need not mean one intends it to be carried out and voting against need not mean one intends it not to be carried out. (Of course, like any other action, voting, to be morally good, requires more than an upright intention.)

In some cases, members of legislatures confront a limited set of alternatives, none of them morally acceptable, that they are powerless to improve. Then a legislator may rightly vote for the less (or least) immoral alternative. In doing so, he or she need not intend its adoption and implementation; rather, the upright legislator’s intention will be to prevent greater immorality.

Having made these clarifications, I turn to your question.

Except in a case that falls under the last point above, if a proposal under consideration is immoral in itself or plainly unjust, legislators should never let their constituents’ support for it persuade them to vote for it.

Suppose there were a proposal to solve the problem of homeless street people by gathering them up and killing them. That proposal would be immoral in itself. No matter how many of your constituents favored it, you would be obliged to vote against it. If you thought your vote might make a difference, it would be wrong to vote yes since you would be intending the killing. (In making a choice reluctantly, it is quite possible to intend an evil toward which one feels great repugnance.)

Suppose the proposal were to authorize local governments in your state to replace the real estate tax with a tax of a specified amount, say three dollars per day, on each individual occupying any residential unit in their jurisdictions. Surely you would judge that unjust, since it would tend further to impoverish the already poor by shifting to them the tax burden now borne by those more able to bear it; yet perhaps the majority of voters in your district would strongly support it. In such a case, it would be wrong to allow your constituents’ opinion and the prospect of losing their support in a future election to motivate you to vote for the proposal, for that would betray the injustice’s victims and undermine your witness to the truth and good at stake.

Even if you were sure your vote would not affect the body’s decision, moreover, voting for a measure you considered immoral in itself or plainly unjust would be politically pointless unless you capitalized on it—for example, by claiming to share your constituents’ prevailing view, which would be lying in grave matter. Since you will not be able to avoid explaining and defending how you voted on a controversial matter, if you consider a proposal immoral in itself or plainly unjust, you should do your best to persuade constituents who favor it to accept your position, vote according to your conscience, and try to retain or win the support of those who disagree with you by serving them well in legitimate ways.

Usually, of course, proposals under consideration are neither immoral in themselves nor plainly unjust. Instead they have real advantages and real disadvantages, so that legislators have good reasons for both supporting and opposing them. Both possibilities are morally acceptable in such cases, and legislators must discern how to vote. If your initial discernment pointed to a judgment at odds with the opinion of the majority of your constituents, would you be justified in yielding to their opinion? Perhaps. Their genuine collective discernment of what is best for their community as a whole would more likely be sound than yours as an individual. So, you would be justified if you thought your constituents were sufficiently informed to be able to discern and believed their opinion was a product, not merely of passions, but of genuine discernment—that is, discernment in view of the common good.

Someone will object that legislators should not be mere messengers, serving as their constituents’ agents and bound by their instructions, but guardians of the common good, chosen by the people to deliberate and make decisions in accord with their well-informed consciences; legislators who substitute constituents’ discernment for their own abdicate their proper responsibility. While granting the stated view of the legislator’s responsibility, I deny that yielding to informed constituents’ discernment need betray it. When discernment is appropriate and constituents are in a position to discern, legislators have good reason for considering their constituents’ prevailing opinion sound and forming their own consciences accordingly. In such a case, refusing to act in accord with that opinion would mean rejecting the best available index of the common good.

But what if you think your constituents’ opinion is less a product of genuine discernment than of passions? If your position on the matter certainly will not affect the outcome, you need not resist your constituents’ opinion. If your position may or even certainly will affect the outcome, however, then, it seems to me, two kinds of cases should be distinguished.

Sometimes you will confidently judge that, though one or more other options are morally acceptable, a particular option definitely would be more conducive to the common good. In such cases, you should not yield to a different opinion held by your constituents unless, taking into account the political consequences of resisting, you judge that doing so will serve the common good at least as well. Suppose it seems clear to you that a proposal to increase and extend unemployment benefits would better serve the common good than alternative approaches to helping the unemployed, and suppose a pivotal bloc of voters opposed both that proposal and euthanasia. If resisting their opinion on the unemployment measure seemed likely to lead to your defeat at the next election by a proponent of euthanasia, you might conclude that an alternative—say, a program to retrain and relocate unemployed workers—together with remaining in office so as to oppose euthanasia would be at least as conducive to the common good.

In other cases, though, your own judgment will not be so confident. You will think a particular option more likely to serve the common good than others, but you also will recognize that your judgment could be mistaken. In such cases, it seems to me, you could rightly yield to your constituents’ opinion. To some indeterminable extent, it, too, will be the product of genuine discernment. And even though it also is a product of passions, that is no less true of the opinions of every other legislator’s constituents. The democratic system has been constructed to balance out such nonrational interests as much as possible, and, balanced out, public opinion is likely to be in line with the common good. For since many people are somewhat reasonable and civic-minded, and a few almost entirely so, the prospective benefits of alternative proposals are likely to shape informed public opinion as a whole toward the common good, while the system generally will operate to cancel out competing, nonrational interests.

In a parliamentary system, your responsibilities as a legislator would be somewhat different. In such a system, one’s party matters more than it does in the United States. The party’s campaign for election is more tightly organized, and during legislative sessions the leaders of each party can and sometimes do require their followers to vote as a bloc. In such a system, nobody should seek office as a member of a party that has a prospect of governing unless convinced that the common good will be better served with that party in power than with any alternative.

Of course, conscientious citizens with the gifts needed for service in parliament are likely to foresee that they will not be able to support every position of any party with a chance of governing. A member’s differences with his or her party sometimes are consistent with conscientious service. Still, even those who think they could function within a major party without moral compromise sometimes should run as independents or join a party with no chance of governing. Though precluded from governing, such members of a parliament may be able to serve their constituents and the common good well by their committee work and their sometimes decisive votes on closely contested issues.

A parliamentary system is so constituted that members are elected and authorized to contribute to their leaders’ deliberation and decisions, but have no right to resist when called on to support their party’s common position. In most cases, this presents no moral problem. Reasonable parliamentary party leaders do not impose party discipline on members with conscientious objections. When a member’s vote will not be decisive, the leadership hardly will discipline him or her for being absent. On some especially contentious issues, leaders openly allow members to vote as they believe right; on some others, the leadership often tolerates members’ voting for reasons of conscience with the opposition.

If threatened with punishment by the party leadership, however, a member of parliament must vote according to conscience if the alternative is to cast a vote that could be decisive for something he or she considers immoral in itself or plainly unjust. In such a case, moreover, party discipline should be resisted, if possible, not only for the sake of justice in the matter at issue but for the party’s good as well, since its true interest cannot lie in morally unacceptable legislation.

Your question and my reply focus on direct conflicts between a legislator’s better judgment and constituents’ opinion. Frequently, however, the conflict is indirect. A legislator’s conscience and his or her constituents’ wishes agree entirely in favoring some legislative proposal, but its passage requires votes that can be obtained only by voting for some other proposal about which the legislator has reservations. Confronted with such indirect conflicts, legislators’ responsibilities are exactly the same as when the conflict is direct, and the norms already stated apply. If what is proposed is neither immoral in itself nor plainly unjust, legislators can rightly trade votes, provided they conscientiously judge that doing so serves the common good. But the temptation to rationalize may be great, not least because many legislators in such a situation wrongly violate their better judgment. That temptation must be resisted. Giving in not only betrays the common good but corrupts even legislators who, nevertheless, may remain ready to resist pressures to support a proposal they recognize as immoral in itself or plainly unjust.