Mukelani Dimba: The beauty of the northern Italian town of Bellagio on Lake Como transcends all natural elements. It is beautiful when the temperature drops and white snow caps the early Alps and fog is suspended between the quiet lake and the mountains. It is also beautiful when warm sun rays that blanket the entire Larian triangle bringing out the mallard ducks to come out and frolic on the lake. Bellagio provided the backdrop last week (sometimes literally, see picture) for a global meeting of data scientists, political theorists, academics and open governance practitioners to consider risks, benefits and opportunities for CrowdLaw, a cutting-edge idea for using technology to enhance public participation in urban law making. CrowdLaw is about informing, consulting involving, collaborating with, and empowering the public in the work of lawmaking bodies at local government levels. It is a technology-enabled participatory lawmaking mechanism.

Democracy is whole lot like Bellagio. Throughout the vicissitudes of democratic practice, the highs and lows, democracy remains the best form of governance (of all the ones that have hitherto been tried, to paraphrase Churchill). But democracy is a lot more than voting for public representatives every four or five years. Real democracy is about people’s participation in decision making about matters that affect their daily lives. Participation is the currency we use to enjoy the benefits of democracy. Without participation, we lose democracy.

However, that which does not transform with the changes in the environment is bound to become extinct. This is true for living organisms and ideas alike. Technological advancement is influencing every aspect of our lives, from how we interact with those around us to how we work, how we play, how we perceive the world and events around us. Likewise, technological advancement is transforming entire industries, professions and areas of knowledge. However the one area that seems still unsure about how to respond to change brought about by technological innovation, is the governance field.

I use the term “governance field” as the broad rubric that encompasses fields such as democratic practice, policy formulation and law making. While mobile banking, artificial intelligence (AI)-supported infrastructure design and usage of virtual reality in medical procedures have become standard features of modern life, there is still only minimal uptake of electronic or online voting during national elections, to give one example. While there are hundreds of examples and recorded best practice on how governments are using online and offline mechanisms to promote participation in policy formulation, the incorporation of new technologies into the entire law-making circle (problem identification, options identification, drafting, decision, implementation and review) at local levels of government are few and far in between but there are good examples (that will be elaborated on in subsequent blogs in this series). In some instances, existing legal frameworks have often been slow to respond to swift and sudden technological changes, rendering them — at least in part — unable to fully accommodate the areas they are meant to regulate.

There are strong arguments that technology is not the only (or even preferred) medium for enhancing public participation in law making. However, it is also true that traditional, mostly offline, mechanisms for public participation tend to favour those “in the know” and those that have access to information and resources to enable them to send their positions to legislative authorities or travel to seats of government to engage with lawmakers. The rapid growth of the rates of penetration of mobile phones globally,¹ means there are now greater opportunities to enable broad-based participation in law-making processes using technology. In instances of inequality technology can be a great leveler and can have a democratising effect and thus enabling more inclusive lawmaking.

If the governance area of knowledge and practice fails to adopt technological change, might it also fray, wither and become extinct? The concept itself cannot be said to be vulnerable to extinction but different approaches to governance could become irrelevant over time if they are not modernised. I believe that this is the case with the practice of democracy.

Fortunately there are many individuals, organisations and governments that are working together to experiment with how technology can be used to enhance the practice of democracy. These experiments are coming at the right time as the world experiences a sharp decline in public trust of governments. Multi-stakeholder initiatives such the the Open Government Partnership (OGP) working with governments, civil society groups and civic tech proponents are creating exciting new platforms that seek to enable deeper and more impactful engagement between the public and their governments on the conduct of public affairs and management of shrinking public resources. Governments across the globe are piloting new forms of engagement and feedback mechanisms to better understand and meet the needs of citizens, be it through online consultations, community score cards or e-services, to name a few.

The group convened at Bellagio by Professor Beth Noveck, head of The Governance Lab considered ways of nurturing a movement that will drive this important work through global project mapping, research into the effectiveness of these initiatives and development of norms and standards for implementing CrowdLaw. According to Prof. Noveck,²

“Technology offers the promise of opening how lawmaking bodies work and making lawmakers accountable to the public more than just on Election Day. CrowdLaw offers an alternative to the traditional method of lawmaking, which is typically done by professional staff and politicians working behind closed doors and with little direct input from the people legislation affects. Instead, we start from the hypothesis that, designed right, with the aim of improving the quality of outputs, there are opportunities at each stage of the lawmaking process, including problem definition, solution identification, research and drafting, subsequent crafting of implementing regulations, and monitoring of outcomes, to introduce greater expertise into the legislative process efficiently. At the same time, we acknowledge that, designed wrong, without regard for outcomes, engagement may only hamstring decision-making and deepen distrust of government.”

Prof. Noveck’s warning about some of the potential pitfalls of CrowdLaw is important. Implementing CrowdLaw comes at a cost in time, resources and, most importantly, ordinary people’s wishes and expectations. The value proposition for implementing and participating in CrowdLaw initiatives for both governments and the public has to be well articulated and based on evidence from pioneering initiatives.

While the case for the benefits of CrowdLaw for the public is easily made, more work needs to be done to demonstrate how CrowdLaw can strengthen existing public participation processes and how it can help governments graduate up the continuum of public participation by moving from informing, consulting and involving the public to collaboration with, and empowerment of, the public. The position of CrowdLaw within the broader ecosystem of governance-enhancement concepts, for example participatory budgeting and legislative openness, will also require more analysis. CrowdLaw champions will further need to grapple with the question of limitation of access (to information and participation) as a legally recognised provision in public law. While the CrowdLaw ideal is to place the public throughout the vein of legislative process, the contours of the limitations to public participation will need to be articulated and guidelines must be offered to CrowdLaw implementers on the government side.

With 76 Open Government Partnership (OGP) countries and subnational entities (municipal, provincial, state or devolved governments) currently drafting their action plans, OGP is an ideal incubator for CrowdLaw — especially with a view to curating knowledge and early lessons on “how technology can facilitate more participatory lawmaking in cities, and the benefits potential, risks and metrics”, as Prof. Noveck puts it.

There are clear synergies between the intentions of CrowdLaw and OGP’s stated agenda of promoting parliamentary/legislative openness. The CrowdLaw concept presents OGP participating countries and subnational entities with a tool to test the possibilities of innovation in making legislative process more open and collaborative.

It could well be that an idea hatched in a quiet little corner of Lake Como will resound around the world and fundamentally transform law-making processes forever. This is a good thing — perhaps a fundamental shake up is what is needed to restore the public’s faith in democracy and government.

*Mukelani Dimba is the civil society co-chair of the Open Government Partnership

Lead image: A breakout session at the three-day CrowdLaw conference hosted at the Rockefeller Foundation Bellagio Center in Italy. Picture by Beth Simone Noveck

FOOTNOTES:

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A session in progress at the CrowdLaw conference at the Rockefeller Foundation conference center in Bellagio, Italy

In this session on ‘Transparency and Participation’ at the Bellagio conference on Crowdlaw: People-Led Innovation in Urban Lawmaking (March 13–17, 2018), we discussed whether participation depended on more transparency and whether transparency could be counter-productive to more engagement. I had the pleasure of speaking and moderating a conversation with:

• Mukhelani Dimba, Open Government Partnership
• Julia Keutgen,Westminster Foundation for Democracy
• Hélène Landemore, Yale University
• Veronica Seguel, Chamber of Deputies Chile

Transparency is instrumental for participation and for accountability. But in order to delve into the linkages between transparency and participation with discernment, it is necessary to clarify the concept of ‘transparency’. Transparency is the immediate visibility for citizens of all policy related aspects. It is the contrary of opacity but is can be compatible with a certain closure. It is more demanding that publicity. It can help citizens to engage in policy, be instrumental to accountability and be educational and transformative for citizens. Transparency helps citizens to know and understand whether their government is protecting their rights and delivering on public services. It can range from total transparency to partial transparency. In some cases, partial transparency has been used by governments and parliaments to justify certain decisions. But when transparency is only partial, it cannot be expected to deliver good outcomes as citizens voice their opinion without having the full picture.

Transparency and participation should be regulated by law, including through Freedom of Information laws and the rules of procedure of parliament. In Brazil, for instance, the rules of procedure of parliament state the obligation for citizens to participate in committee hearings. That being said, there is not a single legal provision of transparency that could grant access to full access to information. Even when regulated by law, the utopian possibilities of transparency as a means to inclusiveness, universality and transformation, are simply not borne out in reality. For instance, today there is no evidence that Freedom of Information laws on their own have dramatically improved government transparency, responsiveness and accountability.

Transparency mostly operates in circumstances of high inequality. In these circumstances, having more transparency does not mean that there are better dialogues between government/parliaments and citizens. In this sense, transparency can lead to more inequality and elite capture because only those who have access to resources and the information are able to participate. Ultimately, participation rests on access to information. Where there are information asymmetries, only voices and interests of the resource rich are audible.

Transparency should be accompanied by civic education and procedural language of government and parliament should be translated meaningfully to citizen to enable meaningful their participation. Participation channels should be linked to citizen’s interest on a single issue rather than party politics. In Chile, for instance, the parliament has developed an online tool “Ley fácil” (easy law) to make the law understandable for ordinary citizens (https://www.bcn.cl/leyfacil).

Transparency is not always the most efficient way to improve a legitimate participatory process and can be very time consuming. Some scholars have even gone further and argued that it has a counterproductive effect on democracy. Even if relative transparency is achieved, there are questions regarding the quality of participation (who participates and how, with what degree of sincerity) and the quantity of participation (how many people participate). This is for instance the case in Chile, where public hearings organized by the parliament are mostly attended by men with a legal background and living in the capital and the voices of other stakeholders are not being heard.

Transparency makes compromises between representatives more difficult. When discussions are transparent and public, it can harden negotiating positions and make it difficult for elected officials to compromise. Citizens are mostly in favour or against a single issue, while legislation requires compromises and trade-offs between single issues. The more trade-offs are involved, the more trade-offs are required the more difficult it is to have full transparency of the negotiation that led to the compromise. Finally, too much transparency coupled with a lack of understanding of parliamentary/governmental processes, for instance disclosure of donations, can have a dampening effect on participation and lead to increased lack of trust in the institutions and its systems.

In the end, participants agreed that transparency is the ideal default principle, with instrumental value, but should be compatible with exceptions. It should not in itself represent a judgement of democracy.

Julia Keutgen is ‎a Technical Advisor at the Westminster Foundation for Democracy (WFD)

Cross-posted from Govlab.org

Photo by sniggitysnags

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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 studyconcluded: “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

Re-posted from the GovLab blog.

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