I recently took part in a day-long meeting that wanted to discuss ideal model legislation absent political considerations – what would the participants like to see as law if politics weren’t a concern?
On its surface this is an appealing notion and logical first step, like a career planning session in which you start with “if you could be anything what would it be?” You start where you want to end up and then figure out how to get there. There are several problems with this approach.
Organizers made political assumptions going into the meeting. The issue was framed as one of good public policy, a way for states to save money and as being non-partisan. These are political considerations.
Organizers asked what participants would want in a law. Laws, of course, do not do anything by themselves (if they did there would be no crime). Laws give people something to enforce through fines, incarceration or public pressure. This question put the outcome in a political context. A better question would have been “what policy outcomes do you want?” This leaves open the opportunity for local regulations or administrative rules, organizational best practices, or court rulings.
Participants contributed to the failure of the approach as well. Rather than focus on painting the ideal picture, many made two political moves. First, many worked within the assumptions above (though some did talk about looking at non-state legislative bodies and one made a strong case to avoid laws and instead work to change agency rules). Second, and more tellingly, many participants talked about what they thought needed to be in the law to get it to pass.
Most importantly, however, organizers assumed that public policy could be made non-political. It cannot. In a democratic society, public policy is inherently political. This is not a cynical assertion with a hidden lament for the good old days when good people did the right thing because it was the right thing to do. Those days never were, and as long as we have to argue about how to solve our shared social problems, policy will be political. Some in the discussion suggested that the best way to achieve the ends would be to quietly act, burying provisions in long bills, sneaking new procedures in to administrative rules. But hiding from politics doesn’t work. Someone would notice and make it political, and advocates would lose their gains. Positive change needs a favorable political environment in which success is likely. The policy outcome – the social change – being sought by organizers depends on public support to succeed.
The ultimate problem is that organizers got their approach backwards. Rather than start with the bill and then figure out how to manage the politics to get to there, they should have asked what political environment participants wanted to achieve and then what role, if any, laws could play in getting there.
