THE IMPORTANCE OF ACCOUNTING FOR TACTICAL RESPONSES TO RULES: A Principle That Applies To Basketball And Campaign Finance Alike

By MICHAEL C. DORF

Wednesday, Apr. 18, 2001

Last week, the National Basketball Association adopted sweeping rules changes to go into effect beginning next season. Faced in recent years with lower-scoring games, and, more ominously, declining attendance and television ratings, the team owners who overwhelmingly approved the changes apparently believe that radical measures are necessary to bring fan interest back to the level it attained prior to Michael Jordan's retirement in 1998.

[basketball]

Yet many of the league's best players and coaches believe that the new rules will reduce rather than increase scoring, and slow down rather than speed up the game. These critics have a point. Three of the four new rules favor defense over offense, and the one that favors offense only slightly compensates for a much larger shift in power accomplished by the most substantial change — legalization of the zone defense.

If you are not a basketball fan, you may be asking why you should care. Even if you are a basketball fan, you may be wondering what this column is doing here rather than in your sports page. The answer is that the changes in the "law of basketball" illustrate a general pattern in the law of the real world: a careful lawmaker must consider not only how a proposed rule of law will operate given existing patterns of behavior, but also how the rule will operate once sophisticated actors alter their behavior in response to the new rule. Lawmakers setting tax policy, deciding on campaign finance rules, and addressing virtually every other legal issue, ignore such effects at their peril.

The NBA's Bold Gamble: Allowing the Zone Defense

For many years, the NBA has prohibited zone defenses, in which defensive players guard an area (zone) of the court, rather than a particular offensive player. Under the new rules, however, the zone defense will again be allowed

Why was the zone defense prohibited in the first place? The theory is that forbidding the zone means defensive teams cannot gang up on the best offensive players. Thus these players can show off their talents (for the fans at the game and the all-important television viewers).

But it didn't really work out that way. Offenses started to attack the man-to-man defense — the only kind permissible — in ways that maximized their chance of scoring on any one possession, but that, in the aggregate, slowed down the game, and bored viewers. Worst, for many fans, is the isolation play — in which four offensive players stand on one side of the court, basically doing nothing, while the best offensive player is "isolated" to go one-on-one against his defender on the other side of the court.

The isolation play helps the offense because, under current rules, a defensive player can only leave his man to double-team an opposing player when that opposing player has the ball. Thus, if the isolated player quickly passes to another, open offensive player, then receives the ball back, he typically must only contend with one defender — because the double-teaming defensive player must leave the offensive star once he passes the ball, but usually will not make it back to the star in time to disrupt his shot.

What Will Be the Effect of Allowing the Zone Defense?

Through the new rule, the NBA will address fan complaints by permitting the zone defense. Ironically, then, to stimulate the offense, the NBA will give the defense a potent new weapon: the zone.

Will the rule change work as intended? College basketball already permits zone defenses, but it may not provide a good analogy to pro games. (College rules give the offense 35 seconds to attempt a shot while the NBA permits 24 second; the three-point line is closer to the basket in the college game; college players are on average smaller, slower, and less talented; and so on).

In the NBA, we can expect that on offense, the new rules will probably work to the advantage of outside shooters (who can thwart a zone defense), as opposed to burly centers (who may be double- and triple-teamed to death). Beyond that, though, no one really knows how the game will change.

In part, that is because predictions must take account of both the new rule and, crucially, responses to it. Remember that the zone defense prohibition seemed like an exciting addition to the game, until it provoked an unanticipated response by sophisticated coaches: the isolation play.

There is a general lesson to be gleaned here: to achieve a desired policy outcome, lawmakers must try to anticipate tactical responses to the rules they enact.

Tactical Responses in the Tax Policy Context

Tactical responses make the effect of new laws hard to predict. For example, a naïve municipal lawmaker might think that doubling tolls on bridges and tunnels in his jurisdiction will double gross receipts. But some drivers will respond by making fewer trips, carpooling, or using alternative forms of transportation. Indeed, if the new price is sufficiently high, revenues might actually decline.

How, exactly, will revenues be affected, in this simple example? A really accurate prediction would require one to know what economists call the "elasticity of demand" for bridge and tunnel use of each traveler — which is a function of numerous factors, including disposable income, willingness to use alternative methods of transportation, and the value each traveler places on his or her time. Raising the toll will almost surely decrease bridge and tunnel use, but it is difficult to predict by how much.

Tactical Responses in the Campaign Finance Context

The McCain-Feingold campaign finance reform bill, which recently passed the Senate, illustrates another kind of legislative reaction to the tactics of sophisticated actors.

Federal election law currently limits contributions by individuals, corporations, labor unions, and political action committees to political parties and candidates for federal office. It also limits contributions by parties to individual candidates. However, aided in part by the Supreme Court's First Amendment decisions, sophisticated actors have figured out how to evade these limits through so-called "issue advocacy" and soft money.

In its 1976 decision in Buckley v. Valeo, the Supreme Court upheld regulations that limited how much a person or organization could spend "for communications that in express terms advocate the election or defeat of a clearly identified candidate." After about twenty years of experimentation, parties and others figured out how to evade this limit.

Instead of expressly advocating the election or defeat of a particular candidate, issue advocacy does so implicitly while nominally purporting to state a general opinion. A typical issue ad goes something like this: "Congressman Smith voted to slash funding for Social Security six times last year. He wants to hurt our seniors. Call Congressman Smith and tell him to clean up his act." The real goal of the ad is to persuade people not to vote for Smith, but because it does not make that point expressly, it escapes the statutory limits.

Soft money refers to money raised by what are nominally state party affiliates of the national parties that can be used to pay for all manner of campaign overhead — such as research, campaign headquarters rental expenses, get-out-the-vote drives, and so forth. Federal election law does not govern state elections, and because state and federal elections occur at the same time, substantial unregulated state money can be used to pay for joint state/federal operations. (A 1991 ruling of the Federal Election Commission loosely regulates the allocation of money between state and federal candidates, but the parties have been quite effective at exploiting that ruling, so that the percentage share of soft money in federal elections has continued to increase with each election cycle.)

The bill that recently passed the Senate would close both the issue advocacy and soft money loopholes. It is doubtful whether the Supreme Court will uphold the new issue advocacy rules, but even if it does, some critics of campaign finance reform argue that those who want to buy political influence will simply find new ways to circumvent whatever rules Congress enacts.

 

Two Approaches: The NBA Versus McCain-Feingold

The McCain-Feingold critics' position is roughly parallel to that of the NBA. Rather than simply allowing the zone defense, the NBA could instead have continued to forbid it, and tried to write new rules designed to curb the isolation play and energize the game.

But the NBA took the approach of deregulation, rather than the approach of more regulation — apparently believing that any additional rules to thwart the isolation play would either be too complicated to enforce or would themselves somehow be circumvented.

Like the NBA, the critics of campaign finance reform seek deregulation -- believing that money, hard or soft, will find its natural level, and more laws (including McCain-Feingold) will only breed more circumvention. For now, however, we have taken the path of more regulation, not deregulation, in the campaign finance arena.

We will have to wait until the next election to see what new "plays" contributors and politicians devise. As with all tactical responses, we cannot predict the precise results, because life is maddeningly complex and political tacticians are fiendishly clever. That is worrisome because finding a way to sustain our democracy isn't just a game.


Michael C. Dorf, a FindLaw columnist, is Vice Dean and Professor of Law at Columbia University School of Law, as well as a long-suffering Knicks fan.

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