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Legitimating Policy Choices

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Title: Legitimating Policy Choices


1

2
  • Kaplan UniversitySchool of Legal StudiesSummer
    2012

3
Unit 6
  • Agenda Setting and Legitimating Policy
    Choices

4
Agenda Setting (review of Unit 3 material)
  • Agenda setting and policy formulation are
    importantboth 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.

5
Problems may be moved on and off of the active
policy agenda. Examples include
  • Poverty
  • Early in Americas history, poverty was perceived
    as part of a natural free market system.
  • Later, Michael Harringtons The Other America
    (1963) and the mobilization of the poor
    facilitated the conceptualization of poverty as a
    problem worthy of attention.
  • Johnsons 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 Americas
    preparedness for disasters

6
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

7
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.

8
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 governmentoften a
    bureaucratic agency
  • expect greater creativity from these
    organizations
  • may be difficult to distinguish where think tanks
    end and interest groups begin

9
How to Formulate Policy
  • Two major barriers that may block the
    governments 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

10
Question
  • What is an example of each form of routine,
    creative, conditional, and craftsman policy?
  • First Routine
  • Second Creative
  • Third Conditional
  • Fourth Craftsman

11
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 alternativeseconomic 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

12
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.

13
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

14
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 constitutionalthe Constitution
    serves as a boundary on the kinds of policies
    that may be chosen.

15
Introduction
  • Legitimacy
  • is largely psychologicalthe acceptance of the
    majority is essential
  • has substantive as well as procedural
    elementsthe 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.

16
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.

17
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

18
Legislative Legitimation
  • 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

19
Legislative Legitimation
  • 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 Arrows Impossibility Theorem proves that
    it is impossible to devise a social-choice
    mechanism that satisfies the logical conditions
    for rationality.

20
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.

21
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
    regulations 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.

22
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.

23
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

24
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
    regulationsbut unlike Europe, they have
    unofficial status.

25
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.

26
Calhouns Theory of Legitimation
  • John C. Calhouns 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

27
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 solutionsexample prison
    overcrowding and school desegregation

28
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

29
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).

30
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

31
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

32
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

33
  • Good Night
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