It’s a costly signal that’s perceived as reflecting all branches.

A standard insight of the signaling theory literature in economics is that as a general matter, a statement is credible when it is accompanied by a costly action - in particular, an action that is more costly for a dishonest speaker to engage in. 66 Passing resolutions is costly: it takes time that could be used for other things – passing legislation, engaging in constituent service, meeting supporters, enjoying leisure. These other activities benefit members of Congress either directly or by improving their chances for reelection. If Congress spends resources to enact a resolution disapproving the Iraq war, observers will rationally infer that Congress cares more about this issue than it cares about other issues for which it does not enact resolutions. In turn, people who are taking actions with an eye toward how Congress might, in the future, regulate the Iraq intervention or other military interventions would do well to take note of the resolution.

There is another signaling mechanism that can explain why soft statutes are credible. Suppose that Congress can benefit from resolutions because they let the President know Congress's view on a particular issue - say, budgetary priorities. If the President knows Congress's view, he can take account of it when formulating a budget prior to its submission to Congress. By doing so, the President can avoid a subsequent budgetary impasse that hurts both him and Congress. 67 Moreover, if the President takes the soft statute seriously, then Congress thereby reduces the first-mover advantage (however slight) that otherwise accrues from the President's ability to propose an initial budget.

Congress and the President engage in repeated play extending indefinitely into the future. The President may well adopt the strategy of taking seriously Congress's resolutions as indications of Congress's views only as long as Congress in fact acts consistently with the resolutions when the budget is submitted. If Congress can commit its members to act consistently with resolutions, then it benefits from having a reputation for complying with its resolutions. The resolutions are credible; others, such as the President, the courts, and the public, will believe them.

b. Cheap-talk theories

Communication can be credible even when it is not costly, as long as certain other conditions are satisfied. One such setting exists when parties have sufficiently aligned preferences. 68 Suppose, for example, that a congressional oversight committee seeks to publicly disclose internal executive branch memoranda to which it has been given access on condition that it maintain the memoranda's confidentiality. The committee demands permission from the executive branch. The President prefers to avoid such disclosure but will consent to it if the public is likely to react negatively to nondisclosure. Suppose further that Congress has better information about the public's likely reaction than the President does. If the oversight committee is dominated by the opposite party, the President is not likely to heed its assurances that public disclosure is politically necessary. A partisan committee's argument lacks credibility because it benefits when the President's standing is damaged. But if Congress as a whole passes a resolution advocating disclosure - especially if known moderates and many members of the President's party support the resolution - the claim that disclosure is politically necessary gains credibility, and the President might therefore acquiesce.

The difference between this type of model and the signaling model is that in the signaling model the cost associated with a particular behavior is assumed - it is exogenous - whereas in the cheap-cost model the cost arises in the equilibrium. In the example, the congressional resolution is assumed to be costless; nonetheless, it conveys information to the president, and affects the President's behavior, because some members of Congress have interests that are aligned with those of the President.

In a related cheap-talk model, a political agent must express its view about some issue, where there are two separate audiences with conflicting political preferences. 69 Suppose, for example, that when Congress issues a condemnation of the Armenian Genocide, the relevant audience consists of Armenians and Armenian-Americans, on the one hand, and Turkey and its American supporters, on the other hand. Assume that both groups have political power and can punish members of Congress for adopting a resolution that they disapprove. Here, when Congress condemns the Armenian Genocide, it incurs a cost in the form of political pressure or loss of political opportunities from Turkey and its supporters. Congress's willingness to incur this cost indicates that its support for Armenia is credible. Indeed, analytically this is very similar to the signaling game: the cost is not intrinsic, but related to a consequence of the statement. Nonetheless, so long as the cost is observable, it will have the same effect of producing credibility.

3. Implications

As long as Congress can credibly reveal its intentions with congressional resolutions, it is likely that people's behavior can be affected by these resolutions as well. If resolutions reveal Congress's policy views and hence the path of future legislation, then potentially affected parties will adjust their behavior in light of their updated beliefs about the legal environment in the future. Indeed, occasionally soft statutes anticipate, and appear to cause, the adoption of voluntary codes of conduct. The Recording Industry Association of America adopted advertising guidelines for notice of explicit lyrics 70 after a congressional resolution urged a uniform labeling and disclosure system. 71 Colleges and universities adopted voluntary guidelines on illegal file-sharing on university computer networks after congressional resolutions encouraged such action. 72 The decision of several major food companies to restrict advertising for "junk food" during children's television programs follows this pattern, too. 73 It is possible, of course, that private parties would have taken these actions even without the resolutions, but the coincidence is striking. This way of affecting behavior need not take the form of resolutions. Simple threats or promises from congressional leaders or oversight committees can also do the trick, as others have noted. 74 But soft statutes, because they reflect the views of the entire body (a chamber, or Congress as a whole), should be a particularly useful vehicle for accomplishing this purpose. We will consider additional examples in Part III.