The Transparency and Open Government memo states that “Executive departments and agencies should offer Americans increased opportunities to participate in policy making and to provide their Government with the benefits of their collective expertise and information.” While this is an important goal for the Executive Branch, it is just as critical that we do the same for the Legislative Branch. Currently, most would agree that lobbyists have significantly more influence than citizens in crafting legislation. An essential goal for the Open Government community should be to find ways to increase citizen influence on the legislative process to be on par with lobbyists.
While lobbyists certainly influence policy through campaign contributions, they have other methods that are often far more persuasive - they build up credibility as a trusted and useful subject matter experts with their counterparts on the hill. Slate’s John Dickerson talks about this in his 2006 article, Lobbying and Laziness:
…the dance of influence is subtler than people think. If it works right, a member never has to say, even to himself, “I have to vote for this subsidy because lobbyist Jack (Abermoff) has just put a check in my pocket.” That happens on occasion, but usually only when a piece of legislation comes up suddenly, or if a lobbyist goes off script. The more effective scenario, for everyone concerned, involves the lobbyist becoming friendly with members of the Congress member’s staff, who research issues and advise him or her what to do and how to vote.
When the member of Congress goes to staff for information, he wants it fast. A staffer can read all available material on the issue, think through the policy, and balance what’s right against the member’s political interests—or he can call his friend Smitty the lobbyist. Smitty knows all about this complicated stuff in the telecommunications bill…Smitty has a solid, intellectually defensible answer to every question. He also knows how an issue is likely to play out politically for the member back in his home district. In a hectic day, Smitty makes a staffer’s day easier…It’s easy to rationalize relying on lobbyists for this kind of help. In asking lobbyists to help them understand technical issues, staffers are doing the same thing journalists do every day—and in fact, journalists often call the same lobbyists for the same reason. They find someone who understands the issue, figuring that they’re smart enough to use the information that rings true and discard the spin.
While there are already armies of citizen interest groups combating the corruption problem, far less scrutiny has been devoted to addressing the lobbyist access and trust issue. In truth, the world of crafting legislation has become so complicated that lobbyists often play a valuable role in providing context and subject matter expertise on a given issue. Staffers, who are often working under tight deadlines, can use the old “Crossfire” method of gaining information, where they ask opposing lobbyists for their opinions in order to become informed on an issue. White papers and research are provided by lobbyists, which help the staffer construct an early draft of the proposed language. While competing lobbyists might be a useful way of gathering detailed information in a pinch, it leaves the American citizen out of the process. Far too often, issues critical to the public at large are never included in the initial crafting of the legislation.
The Five Day Review and Comment Period is Not Enough: The press has been awash with President Obama’s pledge (and whether he has already broken it) to give the public the opportunity to review and comment on non-emergency bills via a five day waiting period. Even if we institute and follow this pledge, at best we are only providing the public the opportunity to galvanize enough outrage for really horrid breaches of trust. At the point the waiting period is enacted the legislation is all but finalized. If we truly want to include citizens policy making, the low hanging fruit starts at the beginning of the process. Once the legislation has been crafted, the best the public can do is do slight modifications the general trajectory that is already largely set.
Staffers Aren’t Lazy - They Need More Help: While Dickerson’s article describes the general problem, I don’t agree with the assessment that lobbyist influence is largely due to laziness. I think staffers are often posed with an overwhelmingly complex environment which they must boil down to actual language in obscenely short time frames. The rule of thumb is when you are worried that everyone involved in a process is corrupt and unethical, chances are there’s something systemic going on. Here’s my sense of what’s occurring:
In describing the situation, the problem goes something like this:
- Representative A tells her Staffer X a problem she wants to solve, and provides the broad outlines of what she is looking for. She then gives the staffer a set time frame to get the first draft done for her to review (often at the end of a congressional recess period, for instance).
- Staffer X has a short window to complete the initial draft. The clock is ticking. She immediately goes to her trusted sources. This includes both knowledgeable colleagues (other staffers, for instance) and online sources. It just so happens that her trusted sources also include lobbyists, who not so coincidentally, often have already thought about Representative A’s issue, and are eager to provide ready white papers to help the staffer understand the larger context.
- Staffer X does her level best to meet their Representative’s direction, but her performance is limited by what she can find in the required time frame.
- With the help of her trust sources, including lobbyists, initial draft language is written for deliberation and review, and quickly shows up in a more formalized review process.
When Do We Participate? In looking at the public’s input, early on it’s pretty much non-existent. Funded interest groups have a seat at the table, but Joe Citizen does not. While it is very likely that Representative A’s original goals came from perceived public problems, the public was not involved in crafting process. What if as an additional resource, groups in the public self-organized to create a “public-policy-development.org” site (hopefully they pick a better name), which allowed citizens and interest groups from across the nation to participate in wiki-like fashion (along with discussion areas, prioritization and polling areas similar to WhiteHouse2.org) in crafting sample language and white papers to address clearly laid out problems? This site could have a mashups from OpenCongress.org that automatically shows the existing statute for each content area so that citizens can quickly determine what needs to change.
Congressional Staffer’s New Resource - Us! If such a site were created and gained critical mass, when the staffer’s time constraints kicked in to develop draft language, they would notice that the public has already commented extensively on that issue, and might already have their version of research and white papers written to aid the staffer similar to the lobbyists. Over time, as with lobbyists, the staffer might learn to trust this input and engage in informal discussions with the public to gather additional information. In modifying the last diagram, it might now look something like this:
In the above example, the public has banded together through one or more sites (perhaps many sites) to engage in sensemaking around the issues and their impact on congressional legislation. Similar to lobbyists, they are producing resources for congressional staffer consumption. Ideally, they are engaging in informal communications with the staffers as they work through the set of complex issues in order to construct draft language. So how would a system like this actually look? Here’s an initial cut:
Performance Support System for Citizen Participation: When entering such a site, Citizens could begin either by looking at the current laws of the land, broken into logical chunks, or they could start discussing the issues and problems that they think Congress needs to address.
- Current Legislation: When citizens attempt to look at current legislation, citizens should have the option of learning the basics of Congressional Language, and perhaps, have (wiki-based) plain English descriptions of what each part of the legislation actually means.
- Issues/Problems: In examining and commenting on the issues with current legislation, citizens should have the option to propose new language or propose modifications to existing language. Research and white papers should be created and linked to support each proposed change.
- Discussions with Congressional Staffers: When congressional staffers are in the process of crafting legislation, they should have the option to ask questions of citizen subject matter experts similar to how they do now with lobbyists.
If such a system were created, congressional staffers would have access to a new resource - Us! Citizens engaging in mass collaboration could participate on par with lobbyists in providing a trusted resource for staffers. The best part of all this is this system would sit completely outside normal government interactions. The government would neither need to fund it, nor would it be constricted with current rule sets. The ONLY issue to address would be to ensure that both staffers, representatives could come to this site and participate in a fact finding method. As long as the staffer could ask fact finding questions along the line of, “Representative A asked us to look into crafting policy in to address the following problem. I have some questions about the nature of the problem and want to solicit ideas about possible solutions…”, a system similar to the above approach could begin to reduce lobbyist influence.
Can This Approach Also Work for the Executive Branch? This same idea could be used for program implementation evaluations. So for instance, when we revisit S-CHIP in a few years, perhaps there already could be a thriving online discussion involving state and local healthcare policy makers - HHS wouldn’t have to pay to set this up, but could participate. Doing it this way also gets around the problem of citizens not being allowed to provide free work to the agency - in this case the citizens self-organize and the govt also gets the benefits.
Download & Modify my Graphics File: If you’re interested in improving on this idea, feel free to use my Visio file as a starting point.