Legislature 2.0: CrowdLaw and the Future of Lawmaking

By Beth Noveck, Gabriella Capone and Victoria Alsina

Re-Imagining Lawmaking

With rates of trust in government at all-time lows, the legitimacy and effectiveness of traditional representative models of lawmaking, typically dominated by political party agendas and conducted by professional staff and politicians working behind largely closed doors, are called into question. But technology offers the promise of opening how lawmaking bodies work to new sources of expertise and opinion and of making lawmakers accountable to the public more than just on Election Day. Around the world, there are already over two dozen examples of local legislatures and national parliaments turning to the Internet to involve the public. We call such open and participatory lawmaking: “CrowdLaw.”

The Crowd.Law Website

Although legislatures fund the research done in universities, they invest next to nothing in researching and reinventing how they themselves work. Thus, the Governance Lab at New York University is launching the CrowdLaw Research Initiative and website (“CrowdLaw”) to understand the future impact of technology on the lawmaking process, in particular those technologies that enable participation by individuals and groups. We focus on these collective intelligence tools – as distinct from the technology that enables greater legislative transparency – because they offer the potential for a two-way conversation that could channel more and more diverse opinions and expertise into the lawmaking process and may thereby improve the quality of legislation and its efficacy.

The focus is on creating not only more direct, but also more informed democracy. Our work starts from the hypothesis that expertise of all kinds is widely distributed in society and that we can use technology to introduce better information into the legislative process, making it an ongoing conversation and collaborative process.

The Crowd.Law website includes:

    1. An in-depth analysis and explanation of CrowdLaw
    2. Short case studies of 25 global examples of CrowdLaw initiatives;
    3. A Twitter list of leading thinkers and practitioners of CrowdLaw;
    4. A bibliography of Selected Readings on CrowdLaw;
    5. In-depth design recommendations for designing crowdlaw processes and platforms; and
    6. Model language for legislating public engagement in lawmaking.

This work is informed by three online convenings among crowdlaw practitioners from more than a dozen countries1 and a semester-long graduate research project undertaken at Yale University in the Yale Law School’s Clinic on Governance Innovation.

Future CrowdLaw Activities in 2018

The launch of Crowd.Law is only the beginning of a series of activities for the coming year designed to deepen our understanding of CrowdLaw practices, convene the community interested in legislative innovation, pilot additional CrowdLaw experiments in practice and study what works.

To that end, on November 17th, the Madrid Regional Assembly and the Madrid City Council will convene a workshop on CrowdLaw together with the GovLab at NYU and the Harvard Study Group “The challenge to design a technological Agora” designed to investigate potential pilot projects on CrowdLaw for lawmaking at the local and regional level in Spain.

This Spring, the GovLab and multi-disciplinary students from New York University’s Tandon School of Engineering in Governing the City will undertake research for the city council of a large metropolis to map how a bill becomes a law and, in turn, how that law gets implemented into regulations, in an effort to identify the benefits and risks of greater public engagement.

With support from the Rockefeller Foundation, the Governance Lab will convene political and legal theorists, parliamentarians, platform designs and legislative staff from six continents at the Rockefeller Bellagio Conference Center in Italy in March to explore the theory and practice of public engagement in lawmaking and to set standards for data collection and sharing by parliaments practicing crowdlaw to enable evidence-based research.

Why CrowdLaw?

Today the public, with the exception of interest group lobbyists, has very little impact on governing. There’s a vast literature on the infirmities of the legislative process, which explain the causes that have given rise to poor quality. As Jacob Hacker and Paul Pierson conclude in Winner Takes All Politics, the multi-billion dollar lobbying machine of organized business that emerged in the 1970s to combat Great Society social programs has captured the political process and continuously pushed through a legislative agenda designed to favor the very rich over the middle class. Their book-length work chronicles the exclusion of the “every man” from politics and the resulting inequality in American society. In David Schoenbrod’s DC Confidential, he lays out the “five tricks” politicians use to take credit while passing the blame and the buck to future generations for their bad legislation. As another study concluded: “the preferences of the average American appear to have only a minuscule, near-zero, statistically non-significant impact upon public policy.”2

The unknown question is whether new forms participation beyond the Ballot Box can, in practice, enhance the legitimacy3 and quality4 of the lawmaking process and remedy what ails it. It is worth noting that these two goals are in often in tension because one focuses on ensuring that all voices are heard and the other on enhancing expertise in the process. There is no right answer as to which is more important. But most experiments with public engagement in law- and policymaking to date have focused on the former to the exclusion of the latter. They have not resulted in any measurable improvements in legislative outcomes. It will be crucial when designing new pilots to experiment with trying to design platforms and processes to achieve both goals at different stages of the lawmaking process.

For example, when parliaments decide what issues to take up (agenda-setting), this may be an opportunity to raise the concerns and problems of the community and for the public to propose, prioritize and critique problems to tackle, as is the case of Finland’s Citizen’s Initiative Act, in which a member of the public can propose new legislation. At this stage, participation has the potential to enhance information and bring empiricism into the legislative process through public contribution of expertise.

When legislative and regulatory bodies arrive at the substance of a solution to a problem (proposal-crafting), this could present the opportunity to identify innovative approaches by leveraging distributed expertise beyond that available from legislators and their staffs and occasional hearings5 and, at the same time, to create a process for gauging public preferences and public opinion in response to proposed solutions. Parlement & Citoyens in France enables citizens to submit proposals on the causes and solutions to a problem posed by a representative. Citizens’ proposals are then synthesized, debated, and incorporated into the resulting draft legislation.

Many of the newer political parties from Podemos in Spain to the Alternative in Denmark have used new technology to invite their constituents to draft the party platform in an effort to assess the opinions of their base and be more responsive to them.

If parliaments distribute the work of monitoring implementation to citizens with camera-phones, for example, this could dramatically increase the ability to evaluate the downstream cost and benefits of legislation on people’s lives and introduce into lawmaking greater empirical rigor, which is typically lacking. 6 7 8 9 10

Yet it is not self-evident that more public participation per se produces wiser or more just laws. There are countless instances to the contrary, including notable recent plebiscites. Rather than improve the informational quality of legislation, opening up decision-making may end up empowering some more than others and enable undue influence by special interests. More direct participation could lead to populist rule with negative outcomes for civil liberties. Legislatures are rightly slow to implement public engagement, fearing that participation will be burdensome, at worst, and useless at best.

To counter these risks and realize the benefits, there is an urgent need for systematic experimentation and assessment to inform and guide how legislatures engage with the public to collect, analyze and use information as part of the lawmaking process. But if we want to get beyond conventional democratic models of representation or referendum, and evolve how we legislate, this requires knowledge of how more participation might help to improve the legitimacy and the effectiveness of lawmaking.


Endnotes:

[1] “Toward More Inclusive Lawmaking: What We Know & Still Most Need to Know About Crowdlaw,” The Governance Lab, June 4, 2014, http://thegovlab.org/toward-more-inclusive-lawmaking-what-we-know-still-most-need-to-know-about-crowdlaw/. “Expanding Insights – #Crowdlaw Session 2 Highlights Need for Experimentation & Collaboration,” The Governance Lab, June 24, 2014, http://thegovlab.org/expanding-insights-crowdlaw-session-2-highlights-need-for-experimentation-collaboration/. “#CrowdLaw – On the Verge of Disruptive Change… Designing to Scale Impact,” The Governance Lab, December 4, 2015, http://thegovlab.org/expanding-insights-crowdlaw-session-2-highlights-need-for-experimentation-collaboration/

[2] Gilens, M., & Page, B. (2014). Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens. Perspectives on Politics, 12(3), 564-581. doi:10.1017/S1537592714001595.

[3] Sidney Verba, Kay Lehman Schlozman and Henry Brady, Voice and Equality: Civic Voluntarism in American Politics (Cambridge, MA: Harvard University Press, 1995).

[4] Nam, “Suggesting frameworks of citizen-sourcing via Government 2.0,” 18.

[5] John Wilkerson, David Smith and Nicholas Stramp, “Tracing the Flow of Policy Ideas in Legislatures: A Text Reuse Approach,” American Journal of Political Science 59:4 (January 2015): 943-956.

[6] “Initial Findings from Pará,” MIT Center for Civic Media, last modified May 2017, http://promisetracker.org/2017/05/23/initial-findings-from-para/.

[7] Janet Tappin Coelho, “Rio de Janeiro Citizens to Receive New App to Record Police Violence in City’s Favelas,” Independent, March 5 2016, http://www.independent.co.uk/news/world/americas/rio-de-janeiro-citizens-to-receive-new-app-to-record-police-violence-in-citys-favelas-a6914716.html

[8] Martina Björkman Nyqvist, Damien de Walque and Jakob Svensson, “The Power of Information in Community Monitoring,” J-PAL Policy Briefcase (2015). Available at: https://www.povertyactionlab.org/sites/default/files/publications/Community%20Monitoring_2.pdf

[9] Dennis Linders, “From e-Government to We-Government: Defining a Typology for Citizen Coproduction in the Age of Social Media,” Government Information Quarterly 29:4 (October 2012): 446-454. Available at: http://www.academia.edu/27417288/From_e-government_to_we-government_Defining_a_typology_for_citizen_coproduction_in_the_age_of_social_media

[10] Tiago Piexoto and Jonathan Fox, “When Does ICT-Enabled Citizen Voice Lead to Government Responsiveness?” Institute of Development Studies Bulletin 41:1 (January 2016): 28. Available at: http://pubdocs.worldbank.org/en/835741452530215528/WDR16-BP-When-Does-ICT-Enabled-Citizen-Voice-Peixoto-Fox.pdf