the person left to choose freely may choose poorly, in the sense that his choice will not get him what he wants in the long run, and is chosen solely because of errors in instrumental reasoning.
Because of her focus on the means to the ends people want, Conly’s preferred form of paternalism is far more modest than imaginable alternatives.
At the same time, Conly insists that mandates and bans can be much more effective than mere nudges. If the benefits justify the costs, she is willing to eliminate freedom of choice, not to prevent people from obtaining their own goals but to ensure that they do so. Following a long line of liberal thinking, and in a way that responds directly to potential objections, Conly emphatically rejects “perfectionism,” understood as the view that people should be required to live lives that the government believes to be best or most worthwhile.
Because hers is a paternalism of means rather than ends, she would not authorize government to stamp out sin (as, for example, by forbidding certain forms of sexual behavior) or otherwise direct people to follow official views about what a good life entails. She wants government to act to overcome cognitive errors while respecting people’s judgments about their own needs, goals, and values.
For coercive paternalism to be justified, Conly contends that four criteria must be met. First, the activity that paternalists seek to prevent must genuinely be opposed to people’s long-term ends as judged by people themselves. If people really love collecting comic books, stamps, or license plates, there is no occasion to intervene.
Second, coercive measures must be effective rather than futile. Prohibition didn’t work, and officials shouldn’t adopt strategies that fail. Third, the benefits must exceed the costs. To know whether they do, would-be paternalists must assess both material and psychological benefits and costs (including not only the frustration experienced by those who lose the power to choose but also the losses experienced by those who are coerced into something bad for them). Fourth, the measure in question must be more effective than the reasonable alternatives. If an educational campaign would have the benefits of a prohibition without the costs, then Conly favors the educational campaign.
Applying these criteria, Conly thinks that New York’s ban on trans fats is an excellent example of justifiable coercion. On the basis of the evidence as she understands it, the ban has been effective in conferring significant public health benefits, and those benefits greatly exceed its costs. Focused on the problem of obesity, Conly invokes similar points in support of regulations designed to reduce portion sizes.
She is far more ambivalent about Mayor Bloomberg’s effort to convince the US Department of Agriculture to authorize a ban on the use of food stamps to buy soda. She is not convinced that the health benefits would be significant, and she emphasizes that people really do enjoy drinking soda.
Conly’s most controversial claim is that because the health risks of smoking are so serious, the government should ban it. She is aware that many people like to smoke, that a ban could create black markets, and that both of these points count against a ban. But she concludes that education, warnings, and other nudges are insufficiently effective, and that a flat prohibition is likely to be justified by careful consideration of both benefits and costs, including the costs to the public of treating lung cancer and other consequences of smoking.
Conly’s argument is careful, provocative, and novel, and it is a fundamental challenge to Mill and the many people who follow him. But it is in less severe tension with current practices than it might seem. A degree of paternalism is built into the workings of the modern regulatory state. Under long-standing law, you have to obtain a prescription to get a wide range of medicines. The Occupational Safety and Health Administration forbids people from working in unsafe conditions even if they would willingly do so. Both the Food and Drug Administration and the Department of Agriculture regulate food safety, and you are not allowed to buy foods that they ban, even if you are convinced that they are perfectly safe. One of Conly’s points is that the government already makes many decisions for us, and she believes that is just fine.
A natural objection is that autonomy is an end in itself and not merely a means. On this view, people should be entitled to choose as they like, even if they end up choosing poorly. In a free society, people must be allowed to make their own mistakes, and to the extent possible learn from them, rather than facing correction and punishment from bureaucratic meddlers. Conly responds that when government makes (some) decisions for us, we gain not only in personal welfare but also in autonomy, if only because our time is freed up to deal with what most concerns us:
It is very important to my continued existence that my car be safe, but I do not want to have to come up with a reasonable set of auto safety standards…. If the government were to do the research and ascertain that trans-fats are bad for my health and then remove trans-fats from my diet options, I’d be grateful.
She adds that if we are genuinely promoting people’s ends, and allowing paternalism only with respect to means, the claims of autonomy are sufficiently respected. As we shall shortly see, however, this suggestion raises questions of its own.
Conly is right to insist that no democratic government can or should live entirely within Mill’s strictures. But in my view, she underestimates the possibility that once all benefits and all costs are considered, we will generally be drawn to approaches that preserve freedom of choice. One reason involves the bluntness of coercive paternalism and the sheer diversity of people’s tastes and situations. Some of us care a great deal about the future, while others focus intensely on today and tomorrow. This difference may make perfect sense in light not of some bias toward the present, but of people’s different economic situations, ages, and valuations. Some people eat a lot more than others, and the reason may not be an absence of willpower or a neglect of long-term goals, but sheer enjoyment of food. Our ends are hardly limited to longevity and health; our short-term goals are a large part of what makes life worth living.
Conly favors a paternalism of means, but the line between means and ends can be fuzzy, and there is a risk that well-motivated efforts to promote people’s ends will end up mischaracterizing them. Sure, some of our decisions fail to promote our ends; if we neglect to rebalance our retirement accounts, we may end up with less money than we want. But some people who often rebalance their accounts end up doing poorly. In some cases, moreover, means-focused paternalists may be badly mistaken about people’s goals. Those who delay dieting may not be failing to promote their ends; they might simply care more about good meals than about losing weight.
Freedom of choice is an important safeguard against the potential mistakes of even the most well-motivated officials. Conly heavily depends on cost-benefit analysis, which is mandated by President Obama’s important executive order on federal regulation.14 It is also a crucial means of disciplining the regulatory process.15 But the same executive order emphasizes that government agencies must identify and consider approaches that “maintain flexibility and freedom of choice for the public.” Officials may well be subject to the same kinds of errors that concern Conly in the first place. If we embrace cost-benefit analysis, we might be inclined to favor freedom of choice as a way of promoting private learning and reflection, avoiding unjustified costs, and (perhaps more important) providing a safety valve in the event of official errors.
Conly is quite aware of the many difficulties that would be associated with efforts to prohibit the manufacture and sale of alcohol and cigarettes, but here the problems seem to me more significant than she allows. True, smoking produces extremely serious public health problems—over 400,000 deaths annually—and it is important to take further steps to reduce those problems.16 But any ban would raise exceedingly serious difficulties, not least because it would be hard to enforce. A full analysis would have to consider such difficulties, as well as the claims of free choice. Black markets in cigarettes are not exactly what the United States most needs now.
Notwithstanding these objections, Conly convincingly argues that behavioral findings raise significant questions about Mill’s harm principle. When people are imposing serious risks on themselves, it is not enough to celebrate freedom of choice and ignore the consequences. What is needed is a better understanding of the causes and magnitude of those risks, and a careful assessment of what kind of response would do more good than harm.
14 Executive Order 13,563, Federal Register, Vol. 76, No. 24 (January 18, 2011), available at www.gpo.gov/fdsys/pkg/FR- 2011-01-21/pdf/2011-1385.pdf. ↩
15 See Sunstein, Simpler; Cass R. Sunstein, “ The Real World of Cost-Benefit Analysis: Thirty-Six Questions (and Almost as Many Answers)” (2013), available at papers.ssrn.com/sol3/papers.cfm ?abstract_id=2199112. ↩
16 The graphic health warnings, required by the Food and Drug Administration, are one example; they are encountering serious challenges on First Amendment grounds. See R.J. Reynolds v. FDA, 696 F.3d 1205 (DC Cir. 2012). ↩
Executive Order 13,563, Federal Register, Vol. 76, No. 24 (January 18, 2011), available at www.gpo.gov/fdsys/pkg/FR- 2011-01-21/pdf/2011-1385.pdf. ↩
See Sunstein, Simpler; Cass R. Sunstein, “ The Real World of Cost-Benefit Analysis: Thirty-Six Questions (and Almost as Many Answers)” (2013), available at papers.ssrn.com/sol3/papers.cfm ?abstract_id=2199112. ↩
The graphic health warnings, required by the Food and Drug Administration, are one example; they are encountering serious challenges on First Amendment grounds. See R.J. Reynolds v. FDA, 696 F.3d 1205 (DC Cir. 2012). ↩