PP650 Unit 6 Agenda Setting & Legitimating Policy Choices 1.

PP650 Unit 6 Agenda Setting & Legitimating Policy Choices

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Kaplan UniversitySchool of Legal StudiesSummer 2012


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Unit 6Agenda Setting and

Legitimating Policy Choices


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Agenda Setting (review of Unit 3 material)

• Agenda setting and policy formulation are important—both establish parameters within which additional considerations of policies occur.

• Agenda setting and policy formulation are linked:– It is often necessary to have a solution before a problem can be

put on the agenda.– The manner in which a policy is put on the agenda affects the

policy formulation process.

• Definition: before government can make a policy choice, a particular problem must be deemed amenable to public action and worthy of policymakers’ attention. Once accepted, the problem will become part of the systematic agenda.


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Problems may be moved on and off of the active policy agenda. Examples include:

– Poverty• Early in America’s history, poverty was perceived as part of a

natural free market system.• Later, Michael Harrington’s The Other America (1963) and

the mobilization of the poor facilitated the conceptualization of poverty as a problem worthy of attention.

• Johnson’s War on Poverty programs– Education

• Science and technology brought attention to educational quality as a problem worthy of placement on the agenda.

• Concerns in the 1990s about economic competitiveness gave education renewed importance.

– Defense• The attacks of September 11, 2001, and Hurricane Katrina

brought attention to America’s preparedness for disasters


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Removal from the Policy Agenda

• Issues can also be removed from the agenda.

• The repeal of Prohibition, by which the federal government said that preventing the production and distribution of alcoholic beverages was no longer its concern.– change in focus to regulation and taxation

authority– movement to privatize some public services


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Policy Formulation

• After the political system has accepted a problem as part of the agenda for policymaking, what should be done about it?

• Policy formulation involves developing problem-solving mechanisms.

• Two common analytic techniques for attempting to justify one policy choice as superior to others:– economics– decision theory

• Generally, there is little theory to guide policymakers trying to decide what tools to use and when to use them.


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Who Formulates Policy?• Sources of policy formulation

– The public bureaucracy:• most involved in taking the lofty ambitions of political leaders

and translating them into more concrete proposals• strength and weakness: the public bureaucracy is a master

of routine and procedure, tends to professionalize, and relies on particular kinds of expertise

• bureaucratic familiarity with particular instruments restricts choices; use of formulas to solve problems results in narrow vision and agency self-protection results in incrementalism

– Think tanks and shadow cabinets• organizations of professional analysts who work on contract

to a client in the government—often a bureaucratic agency• expect greater creativity from these organizations• may be difficult to distinguish where think tanks end and

interest groups begin


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How to Formulate Policy

• Two major barriers that may block the government’s ability to understand problems:– lack of basic factual information– inadequate theory of causation

• Four basic kinds of policy formulation:– routine: policymakers have a high-level of information and

known causation– creative: policymakers have inadequate information and an

inadequate theory of causation– conditional: policymakers have sufficient information but an

inadequate understanding of causation– craftsman: policymakers have an adequate model of causation

but insufficient information• Clever policy formulators will attempt to define problems

in ways to work to their advantage

Question

• What is an example of each form of routine, creative, conditional, and craftsman policy?

• First: Routine

• Second: Creative

• Third: Conditional

• Fourth: Craftsman


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Aids for Policy Formulation• Cost-benefit analysis:

– the most frequently applied tool for policy analysis– reduces costs and benefits to a quantitative, economic

dimension– compares alternatives—economic considerations are paramount– follows a general rule to choose the project with the greatest net

benefit to society– raises ethical concerns, because not all legitimate values can be

reduced to monetary measures• Decision Analysis:

– considers probabilities of events and does not assume that events will occur as does cost-benefit analysis

– considers the expected losses and gains that result from a decision

– expected loss equals the cost of the event multiplied by the probability of the event


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Policy Design• No technical means of addressing public

problems; relates the characteristics of the problem to the instruments that might be used to solve the problem

• In the United States comprehensive approaches to policy design may be resisted:– Antistatist tendencies mitigate against rationalistic

approaches.– Inadequate agreement and incrementalism inhibits

policy design.


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Overview: Legitimating Policy Choices

• Definition, introduction, and types• Legislative legitimation• Oversight• Regulations and the administrative process

– public access to the regulatory process– rulemaking processes– threats to regulatory decision making– the courts– popular legitimation


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Legitimacy Defined

• Policy decisions must be defended as legitimate ones for the government to make.

• Legitimacy: a belief on the part of citizens that the current government represents a proper form of government and a willingness on the part of those citizens to accept the decrees of the government as legal and authoritative.

• Policies must be constitutional—the Constitution serves as a boundary on the kinds of policies that may be chosen.


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Introduction

• Legitimacy:– is largely psychological—the acceptance of the

majority is essential– has substantive as well as procedural elements—the

content of the policy must be viewed as acceptable, otherwise the policy will fail

– is both a variable and a constant

• Governments must legitimate each individual policy choice. Given this, there is a dependence on the political process and the feasible alternatives within the confines of that process.


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Types of Legitimation

• Range of actors = mass versus elites• Characteristics of decisions = majoritarian

versus nonmajoritarian– Legislative legitimation can come in the form of

legislation and oversight and reflects elite actors using majoritarian processes.

– Legitimation by the courts and through regulation reflects an elite and nonmajoritarian process.

– Popular forms of democracy, such as referenda, involved mass legitimation through majoritarian decision making.

– Occasionally, revolutionary groups may act as masses in a nonmajoritarian fashion.


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Legislative Legitimation

• Congress remains the crucial source for primary legislation:– It supplies a basic legislative framework.– Congress authorizes relatively diffuse statements of

goals and structures.• Congress emphasizes procedural legitimation

and has set up elaborate procedures for processing legislation:– many levels of consideration in the legislative process– proposals are easily blocked and progress frustrated

• Civil Rights legislation in the 1950s and 1960s• national health insurance in the 1990s


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• Legitimation through the legislative process is majoritarian.

• The task of policy analyst is to form simple or special majorities.

• Methods of forming majorities:– partisan analysis– logrolling: forming coalitions across a set of initiatives– pork-barrel legislation: producing tangible benefits for

constituents via capital projects and other domestic endeavors

• Logrolling and pork-barrel legislation:– make it difficult to reduce benefits– are associated with an expanding government and create

difficulty in reducing the size of unneeded programs


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• Intensity of preferences: the majoritarian system does not permit the accurate reflection of legislators’ preferences:– Logrolling is an attempt to deal with the intensity

problem, but can only be successful under certain conditions with preference definition.

– Kenneth Arrow’s Impossibility Theorem proves that it is impossible to devise a social-choice mechanism that satisfies the logical conditions for rationality.


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Oversight

• Oversight is the second round of legitimation by Congress, which ensures that individuals charged with policy implementation follow the intent of the legislation

• The effectiveness of oversight is limited by the scarcity of resources– police patrol oversight: centralized, active, and direct.

Congress through its own initiative examines select executive-agency activities with the aim of detecting activity that is inconsistent with legislative intent.

– fire alarm oversight: decentralized and involves less active and direct intervention than police patrol.

– there is more fire alarm oversight than police patrol.


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Regulations and the Administrative Process

• Content of regulation is kept in check by using regulatory analysis– Carter required economic justification for regulations.– Reagan required all new regulations to be reviewed

by the Office of Management and Budget (OMB).– The Republican Congress elected in 1994 required

OMB to assess and report to Congress each new regulation’s economic impact.

– George H.W. Bush and Clinton took a more positive view of regulation.

– George W. Bush placed a moratorium on new regulation and suspended many of the regulations issued toward the end of the Clinton administration.


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Public Access to the Regulatory Process

• The Administrative Procedures Act and several other laws affecting the issuing of regulations require:– that agencies accept advice and ideas from interested citizens,

and – that time be given at each stage of the regulatory process for

affected interests to respond to agency initiatives

• The regulatory process permits affected interests to have direct access to decision makers.

• Access to the regulation-writing process does not mean that the advice of affected interests will be accepted or incorporated into the regulation.


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Rulemaking Processes

• Two major forms of rulemaking:– formal rulemaking is similar to a court proceeding. It

includes:• a formal hearing• oral testimony from witnesses• the use of counsel

– informal rulemaking involves the following steps:• notice of intent is published in the Federal Register• advice is offered by affected individuals and groups• a draft regulation is issued• additional comments on the draft are accepted• final regulation is issued. The regulation has the force of law;

a derivative of the original primary legislation


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Other Forms of Rulemaking

• Hybrid rulemaking– a compromise between the thoroughness of the

formal process and ease of the informal process

• Negotiated rulemaking– authorized by the Negotiated Rulemaking Act of 1990

• Specifies alternative procedures (pre-clearance) to open the process and negotiate a rule before finalizing it in the formal process.

• The role of interest groups under negotiated rulemaking is similar to the development of neocorporatism in Western Europe. Interest groups make substantive improvements to regulations—but unlike Europe, they have unofficial status.


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Threats to Regulatory Decision Making

• The classic problem of “capture” threatens the regulatory decision making process:– Agencies that regulate a single industry have tended to become

advocates for their industries rather than impartial protectors of the public interest.

– The problem of capture results from the agencies’ need to maintain political support when the only logical source of such support is the regulated industry itself

– The problem is less problematic for new regulatory agencies.• Making agencies independent to remove political

pressure has succeeded only in making them independent of one source of political pressure but dependent on another source.


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Calhoun’s Theory of Legitimation

• John C. Calhoun’s theory of legitimation and “concurrent majorities” argues that proper democracy takes into account not only a majority of individuals but also a majority of interests in society– greater emphasis placed on pressure groups

than other forms of American political thought – makes the opinions of groups more important

in the policymaking process


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The Courts

• Courts provide a nonmajoritarian means of policy legitimation.

• The constitutional basis of legitimation is found in the Supremacy Clause.

• Marbury v. Madison established the power of judicial review.– It is the role of the courts to decide whether laws conform to the

Constitution and to declare void laws that do not conform.

• The role of courts in legitimation is twofold:– considering legitimacy of actions with respect to the Constitution– considering the nature of societal conditions and then offering

solutions—example: prison overcrowding and school desegregation


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Courts

• Decisions of courts differ from those of other administrative or legislative bodies.

• Reasons for this difference include:– courts’ proximity to constitutional authority and the

absence of a ready avenue of appeal following the final appeal

– lack of vote trading and the lack of a constituency– narrow court decisions that apply only to specific

issues or cases– court decisions legitimate certain actions but leave

future decisions somewhat ambiguous; legislative decisions are attempts to develop more general principles to guide subsequent actions


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Popular Legitimation

• Popular legitimation takes place through direct democracy in the states.

• Use of referendum: the people vote on an issue put to them by the legislature or other government body. Approval by popular vote is required for the policy to become law.

• Use of initiative: citizens can place issues on the ballot themselves and then vote on the initiative(s).


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Problems with Popular Legitimation

• Problems with popular legitimation include:– complex issues turn into yes-no questions– the voting population may be uninformed– popular legitimation works better with small

populations than on a national basis


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Review

• Legitimation is the most difficult yet simplest component of the policy process:– It involves the least complex and technical forms of policy

analysis; often fewer actors.– Actors are powerful and well-defined.– Formal evidence used by policy analysts and advocates is

secondary to political factors.

• Barriers to successful policy legitimation include:– individual and political barriers: gaining support from members of

Congress through partisan analysis, logrolling, or other means– organizational constraints– legal challenges presented by the courts– broad-based political concerns become evident through the

involvement of voters

Next Week

• Unit 7

• If you need anything from me or need to talk about this course or something else at Kaplan, drop me a note

• Remember to Read, Discuss and come to the Live seminar 10 /04/12


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Good Night


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PP650 Unit 6 Agenda Setting & Legitimating Policy Choices 1.

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