2. CROWDLAW | INTRODUCTION
This section introduces crowdlaw as a form of public engagement in lawmaking and provides a glimpse into how engagement efforts across the world are bringing the public into various stages of the legislative process. We also outline the goals of the report and provide a roadmap.
This is a draft version of the report (dated October 12, 2017) and will be updated in November.
Over the past five years 75 countries have become participating members of the Open Government Partnership (OGP), which aims to “promote transparency, empower citizens, fight corruption, and harness new technologies to improve governance.”¹ The global spread of Open Government — more transparent and participatory governing practices — accelerated by the advent of technology to facilitate online collaboration, has spawned interest in the overhaul of traditionally closed-door governing processes. There has been an increase in the number of public engagement platforms that repurpose existing social networking sites or use bespoke web platforms or mobile phone apps to enable electronic petitioning, open innovation, participatory budgeting and other forms of participation by executive and administrative agencies. Technology is making it possible to move beyond traditional town halls and other forms of face-to-face dialogue² to create more, and more equitable, opportunities for engagement that have the potential to improve the quality policymaking.
In parallel to the explosion of open government in the executive branch, legislative bodies have started exploring — and the public is demanding — new methods for tapping the intelligence and expertise of the public beyond the ballot box, including ways to improve legislative processes. Such participatory lawmaking is known as “crowdlaw.”³
CrowdLaw offers an alternative to the traditional method of lawmaking, which is typically done by professional staff and politicians working behind closed doors. Around the world, it is common for political parties to hammer out legislation and legislative compromises in secret. To paraphrase recent newspaper commentary that could apply to all legislative bodies: in parliament, secrecy happens.⁴
Limited forms of offline public consultation in the form of public hearings is nothing new. However, new technology is dramatically expanding the use of participation in new venues and the roles people are asked to play. Now the public can, in many cases, go beyond contributing opinions and logging petitions online⁵ to playing a more substantive role, including proposing legislation, drafting bills, critiquing legislation, and supplying missing data (Figure 1).⁶
Mi Senado — a mobile phone application which strives to “bring Colombian citizens closer to the legislature” via increased access to information, direct communication channels to senators, and real-time voting opportunities. Colombian citizens can react to and vote on parliamentary plenary sessions in real-time and receive push notifications to know when live plenary sessions are scheduled so that they can participate. Via the app, users also have access to attendance and voting records for elected representatives (Figure 2).
Parlement et Citoyens — a platform that enables the French public to provide input for legislative drafting through a multi-step, online consultation process. On the platform, representatives can host a consultation consisting of three to five different participation opportunities (Figure 3). For instance, a representative poses a problem that citizens help define, and for which they then help generate solution and evaluate the proposed solutions. Citizens may also engage in video discussions with the representative. At the end of the process, a conclusory report explains whether, when, and how citizen input was incorporated into the resulting legislative proposal. (Consultation processes, while sponsored by representatives who are present throughout the process, are actually managed by volunteers.)
E-Democracia — a participation platform run by The Hacker Lab that provides the Brazilian public with three participation opportunities: (1) collaborative legislative drafting via WikiLegis, (2) engagement with deputies on a discussion board Expressão, and (3) public audiences via online conferences with representatives. Through the various tools, E-Democracia enables citizens to propose and edit legislative text (Figure 4) with multiple opportunities for government response. Final reports ensure that citizens understand if, when, and how their involvement on the platform informed draft legislation.
Crowdlaw has the potential to improve the quality of lawmaking by creating opportunities for the public to supply expertise, information, and opinions in the pursuit of producing laws, regulations, and constitutions that are better informed and, at the same time, more legitimate because they have been crafted in the open. Through such processes, the public becomes collaborators and co-creators in the legislative process to the end of improving the quality of legislative outcomes and the effectiveness of governing.⁷
Yet despite the promise and these exciting examples, however, crowdlaw is not well institutionalized in parliamentary practice. Parliamentarians and members of the public unfamiliar with the process may be skeptical. In fact, parliaments, like other public institutions, often resist public engagement, fearing that participation will be burdensome, at worst, and useless at best. Even where institutions offer an opportunity to participate, the public is not always informed or eager to do so, suspecting that participation will not be relevant or incorporated into the result. The fears are not unfounded as many online participatory democracy projects whether legislative or executive side have ended up failing to yield the desired outcomes for institutions or individuals. For example:
● Decide Madrid, an initiative from the Madrid City Council that garnered 18,000 policy proposals favored by public participants, has resulted in only two of those proposals moving forward to be considered by the City Council.
● In 2009 the transition team of then-President-Elect Barack Obama asked the American people for policy proposals for the President’s first hundred days in office. Although over 70,000 ideas were submitted to The People’s Briefing Book and voted on by over half a million people, none of that information ever found its way into policy.⁸
Integrating Crowdlaw into the Legislative Process: Beyond the Petition
In these early days of crowdlaw, participation opportunities are not well-enough integrated into legislative practice thereby leading to an explosion in the volume of information (suggestions, comments, petitions) within any concomitant improvement in the quality of legislative outcomes. The public’s extensive knowledge and expertise does not find their way into decision-making at the appropriate time and in usable form. If designed without regard for the needs of both participating members of the public and parliamentary institutions, innovations in online participation will not enhance lawmaking but will lead only to frustration, dissatisfaction and fatigue.
However, designed right, participation could help to improve both the legitimacy and effectiveness of the legislative process at each stage by introducing more data and diverse viewpoints, and by ensuring that legislation is better informed by real world conditions.
Around the world, successful public participation experiments in lawmaking are cropping up during each of the five basic stages of the legislative process. They are providing glimpses of how crowdlaw practices might be integrated into lawmaking in order to elicit public input for improved governance. Although articulated as “ideal types” with significant crossover between stages, the potential benefits at each stage (Figure 5) are:
1) Agenda-setting: when parliaments decide what issues to take up and to legislate on. Many countries already have a well-established petitioning process.⁹ Brought online and redesigning. this is potentially an opportunity to bring empiricism into the legislative process through public contribution of expertise and information by giving the public a chance to propose, prioritize, and critique problems to tackle. For example, Finland’s Citizen’s Initiative Act, allows members of the public to propose new legislation. The European Union has since adopted its own Citizen’s Initiative Act. In Mexico, Ley 3de3 moved 634,000 to demand the release of politicians’ financial information in order to combat corruption. The reforms proposed by Ley 3de3 comprised the first successful citizen initiative to be discussed and approved by Mexican Congress since a law was recently passed to allow citizen-proposed legislation achieving 120,000 signatures.¹⁰ ¹¹ At this stage, participation has the potential to enhance the level of information in the legislative process.
2) Proposal-making: when legislative and regulatory bodies arrive at the substance of a solution to a problem. This presents a chance to identify innovative approaches by leveraging distributed expertise and to suggest, deliberate upon, and critique proposed approaches. Such approaches broaden public input beyond that available to legislators and their staffs through occasional hearings. For example, Parlement & Citoyens in France enables citizens to submit proposals on the causes and solutions to the problem posed by the representative. Citizens’ proposals are then synthesized, debated, and incorporated into the resulting draft legislation. At this stage, participation has the potential to enhance innovation.
3) Drafting: when lawmaking bodies memorialize solutions through legislation, regulation, or constitution drafting. This provides an opportunity to draft collaboratively and to solicit comments on a draft in an effort to improve it. By increasing the accessibility of a core function of governing, collaborative drafting crates a radical impetus for more openness. For example, E-Democracia’s WikiLegis enables Brazilians to edit draft legislative text in a manner analogous to collaboratively working in a Google Doc. At this stage, participation has the potential to enhance transparency.
4) Implementation: when legislatures delegate to administrative bodies or staff to turn law into practice. This often involves an additional step of crafting regulations based on the legislation and coming up with practical strategies for realizing the vision in practice. Such a rulemaking process presents another chance for participation. For example, the United States’ eRulemaking platform provides an electronic mechanism for the public to comment on draft regulations. At this stage, participation has the potential to the enhance effectiveness of legislation.
5) Evaluation: when the public can help to oversee and monitor outcomes of legislation. Evaluating the downstream impact, including cost and benefits, of legislation on people’s lives provides an opportunity for engagement, such as asking the public how to measure impact and what data to use for that purpose. Alas, evaluation processes are lacking both in crowdlaw and traditional legislative contexts, but oversight and correction mechanisms signal a modest move towards harnessing the public eye and insight toward evaluating government institutions. For instance, Evidence and Fact Checks, used by the United Kingdom’s Parliament, invite evidence underlying proposed policies on topics ranging from the gender wage gap to healthcare technology. Although the program sees low participation and has not published impact metrics, it provides a promising strategy to employ post-passage to assess implementation. A Promise Tracker campaign to monitor school lunch quality in Brazil has achieved success by inviting citizens to use mobile phones to verify if lunches met program standards.¹² Randomized trials in which communities monitor healthcare provision indicate that “[c]ommunities who have […] oversight of implementation tend to be more effective at improving service delivery,” when provided with adequate information. Evidence is converging that an informed, watchful community drives better results for government activities.¹³ At this stage, participation has the potential to enhance accountability.
Report Roadmap
This report contains 10 actionable recommendations (Section 2) for implementing effective crowdlaw strategies and model legislation embodying those recommendations (Section 3). The legislation, in particular, describes what we called the “Open Assembly Lab,” a small administrative unit with the ability and binding authority necessary to design, implement and test public engagement practices. In the subsequent section, we explain the context for the project at greater length, including the global and Spanish conditions of political distrust that are giving rise to the desire for these innovations (Section 4). Then we discuss the rationales behind public engagement in lawmaking (Section 5). The recommendations draw upon our analysis of 25 public engagement case studies laid out in detail (Sections 6 and 7). By assessing these participatory lawmaking methods, we endeavor to distill key lessons learned about crowdlaw and offer design recommendations for those parliamentary bodies interested in incorporating public engagement at one or more stages of the legislative process. The goal is to deepen our collective understanding of what works, what doesn’t, how to assess impact, and accelerate the implementation of more participatory lawmaking practices. Thus, in Section 8, we describe the research agenda for crowdlaw and the role of the Open Assembly Lab and universities in advancing it.
-Gabriella Capone and Beth Noveck
Next posts in the series:
- #3. CrowdLaw | 10 Recommendations for Designing Better CrowdLaw Initiatives
- #4. CrowdLaw | Framework for Institutionalizing Public Engagement in Lawmaking
- #5. CrowdLaw | The political context in Spain and elsewhere
Or go to the first post in the series and table of contents here.
Footnotes
¹ “Open Government Partnership,” Open Government Partnership, accessed May 11, 2017, http://www.opengovpartnership.org/sites/default/files/091116_OGP_Booklet_digital.pdf
² Catherine Andrews, “The Future of Citizen Engagement: Five Trends Transforming Government,” GovLoop Guide, Washington, D.C., 2015, accessed May 11, 2017: https://www.govloop.com/resources/the-future-of-citizen-engagement-five-trends-transforming-government/
³ Crowdlaw is, to the best of our knowledge, our coinage and dates to a series of online convenings of practitioners of participatory lawmaking done by the GovLab in 2014, see http://www.thegovlab.org/project-crowdlaw.html. Crowdlaw is distinct from any and all form of online engagement in that it focuses primarily on legislative bodies. Crowdlaw can refer to the full gamut of lawmaking activity, including legislation, regulation, constitution and even policymaking although we focus in this paper on the work of legislatures.
⁴ Alan Fram, “INSIDE WASHINGTON: Writing a bill in private not unusual,” Associated Press, June 20, 2017, accessed June 21, 2017: http://hosted2.ap.org/APDEFAULT/89ae8247abe8493fae24405546e9a1aa/Article_2017-06-20-US-- Congress-Health%20Overhaul-Secrecy/id-579b09dc3d4f42cfa3e7bb882e978182
⁵ Early experiments with online petitioning of parliament include the Scottish Parliament’s e-petitioning system (http://www.parliament.scot/gettinginvolved/petitions/) and the Bundestag’s platform in Germany (https://epetitionen.bundestag.de/). See Ipsos MORI, and C. Carman. 2009. Engaging the Public in the Scottish Parliament’s Petitions Process. Research Study Conducted for the Scottish Parliament’s Public Petitions Committee. http://archive.scottish.parliament.uk/s3/committees/petitions/inquiries/petitionsProcess/Engagingthepublicinthepetitionsprocess.pdf and Lindner, R., Riehm, U.: Broadening participation through e-petitions? an empirical study of petitions to the German parliament. Policy & Internet 3(1), 1–23 (2011), 9 (http://www.psocommons.org/policyandinternet/vol3/iss1/art4
DOI: 10.2202/1944–2866.1083) (the advent of e-petitioning led to a dramatic increase in the number of petitions and the concomitant difficulty with managing and integrating the process).
⁶ Please note that we frequently exchange “citizen engagement” for “public engagement” simply for stylistic diversity. We do not endorse any efforts to limit democratic engagement to those who hold formal citizenship but, to the contrary, believe that engagement should include the most vulnerable and voiceless, such as immigrants.
⁷ See: Noveck, Beth Simone, Wiki Government: How Technology Can Make Government Better, Democracy Stronger, and Citizens More Powerful, (Washington, DC: Brookings Institution Press, 2010).
⁸ For more about the limitations of the People’s Briefing Book, see James Katz et al., The Social Media President (London, UK: Palgrave, 2013).
⁹ See infra n. 8.
¹⁰ Kerk Semple, “Grass-Roots Anticorruption Drive Puts Heat on Mexican Lawmakers,” The New York Times, May 28, 2016, https://www.nytimes.com/2016/05/29/world/americas/grass-roots-anticorruption-drive-puts-heat-on-mexican-lawmakers.html?_r=0
¹¹ Maria Hermosilla, “A growing community of global #CrowdLaw practitioners,” The Governance Lab, October 1, 2015, http://thegovlab.org/a-growing-community-of-global-crowdlaw-practitioners/
¹² “Initial findings from Pará,” Promise Tracker, http://promisetracker.org/2017/05/23/initial-findings-from-para/
¹³ Martina Björkman Nyqvist, Damien de Walque, and Jakob Svensson, “The power of information in community monitoring,” J-PAL Policy Briefcase, 2015.
