Module 11 Sections
Public policy is the sum total of laws, orders, regulations, decisions, and anything else government does in pursuance of solving a problem, or a perceived problem. It can emanate from any of the three branches of government or from the bureaucracy, but regardless of its origin, it is compulsory.
In short, public policy is what the government tells the people they must do, or must not do.
Most people naturally assume that politicians act in the public interest as they construct and conduct public policy. They subscribe to a romantic view of politics that holds, ultimately, that human behavior in the political realm is somehow different, indeed better, than human behavior in almost every other realm. Politics, is, after all, the way we address common problems, and those who hold office, or who work in the bureaucracy, are public servants. In order to understand public policy as it is, though, these beliefs will have to be questioned. We will have to get the romance out of politics. To begin this process, watch this video by Professor Randy Simmons, who provides an overview of politics, human nature, and what we should probably expect in the various processes by which public policy is put in place.
The Policymaking Process: An Overview
The policymaking process in the United States is incredibly complex, so complex that the Founders would find it unrecognizable given what they designed. And they thought their design was complicated. Be that as it may, the original design they provided still defines the policymaking process in meaningful ways, even if the size and scope of the federal government has expanded well past what they foresaw.
The Constitution is the first consideration that policy makers must make every time they attempt to accomplish anything in the policy arena. The Constitution provides any number of impediments, including the structural design of the branches of government and federalism. Additionally, any number of constitutional amendments come into play, as does the authority of judicial review.
Beyond the Constitution, the people themselves matter, both as voters and concerned citizens who sometimes apply pressure on their elected representatives. Interest groups are also key players, and they bring both money and pressure to the table.
All of these things, along with the personal desires of elected officials and career bureaucrats combine to result in a very messy, sometimes convoluted, and always difficult policymaking process. A multi-step process which comes to involve all of the relevant parties results. First, problems need to be identified and brought to the attention of those in positions of power sufficient to keep the process moving. Interest groups, think tanks, lobbyists, public intellectuals, and the media all play a role in this. Once this has been achieved, the agendas of policymakers need to be set. This includes, among others, Congress, the President, the executive branch more generally, and the bureaucracy. Time and resources are finite, so policymakers need to rank their goals before proceeding to the next phase, which is policy formulation.
The previous steps of the process are overtly political, but here the nuts and bolts of policy are addressed. Politics is an element of every step of the policymaking process, of course, but at this point questions of how goals can be accomplished emerge. This necessarily involves budgeting concerns, as every policy, no matter how small, requires expenditures be made. Next, policy must be adopted. This in and of itself is a complex process, typically involving multiple congressional committees and subcommittees, Congress as a whole, and the President. Bureaucratic agencies and actors are also involved. If all of these hurdles are met, policy is next implemented, which includes the adoption of the requisite rules and regulations to bring policy into being. This implicates the executive branch, whose charge it is to execute the laws, and the bureaucracy, which is how that has come to occur in the United States. Finally, no policy is ever complete with adoption; each carries with it an evaluation component by which any number of actors determine whether the policy in question accomplishes the goals it was put into place to accomplish. Congress is the key actor here in its oversight capacity. This final step often results in a new round of the entire process to address unintended consequences, failures, and shortcomings of the newly implemented policy.
Policy, of course, is a reaction. It is a reaction to an actual or perceived problem in society, which captures the interest of any number of actors. These can and often do include lawmakers themselves, but more often than not early attention is brought to bear by interest groups, think tanks, public intellectuals, and the media. Minimum wage policy, for example, is largely driven by public intellectuals, who write and speak about the difficulty of living on a minimum wage. Think tanks are involved too, often doing research and providing analysis on the effects of minimum wage law itself. Rather than looking at the issue from the perspective of the individual worker, these people tend to approach the problem academically, asking difficult questions about whether a proposed increase in the minimum wage might actually lead to unemployment, thus harming the very people those suggesting an increase are seeking to help. The media covers both sides of the issue to one degree or another, but the slant what they choose to put on their reporting, without question, influences what happens in the steps that follow.
Drug policy, specifically marijuana policy in the United States, is another example of how difficult problem identification can be, because reasonable people often disagree on the nature of the problem in the first place. What should marijuana policy be in the United States? It depends on whom is being asked. Marijuana is still a Schedule I drug according to federal law. Schedule I drugs are defined by the Drug Enforcement Agency (DEA) as “drugs, substances, or chemicals… defined as drugs with no currently accepted medical use and a high potential for abuse. Schedule I drugs are the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence.”
A number of states, however, have legalized the use of marijuana for medicinal, or even recreational use. The groups involved with problem identification on this issue are numerous. Various state politicians, national office holders, doctors, police unions, individual police chiefs, marijuana growers, bureaucrats, scientists, and voters all seem to have something to say on this matter, or they by no means speak in a unified voice. Many want marijuana to be legal everywhere and always, and many would prefer it were illegal across the country. In the middle are many who think it should be legal for medicinal purposes only, many who think it should be left up to the states, and countless others with any number of differing opinions.
Many of these people have a vested, personal interest in the outcome of the policy debate, which complicates matters significantly. On the most basic level, any number of actors’ livelihoods are attached to the continuation, adoption, or discontinuation of specific policies, and these actors will seek to use the power of government to get what they want, irrespective of whether what they want happens to be in the public interest. These groups often band together and hire lobbyists, people whose sole job it is to apply pressure to politicians to get what they want legislatively. Have a look at Professor Randy Simmons talking about the phenomenon of rent seeking in this video. Rent seeking, simply put, is the attempt to increase one’s share of wealth without actually creating new wealth. It is the capturing of a market using the force of government rather than competition, and it happens often.
In addition to government granted monopolies, government subsidies provide a clear example of this sort of behavior. Subsidies are money granted to some in the form of payments that were taken from others in the form of taxes. They provide a concentrated benefit to those who receive them, but a dispersed cost to those who pay. What results are significant payments made to some as a result of small costs incurred by many. The costs are so small, as a matter of fact, that those who pay are generally unaware of them, and even if they were aware, they would likely not protest all that much, as the costs they are forces to bear are much lower than fighting those same costs, even in terms of their time alone.
Scores of industries and individual companies are subsidized in the United States every year, and virtually all of these subsidies emerge from lobbyists working hard to identify problems that they claim only government can solve. Agricultural subsidies illustrate the complex process that results in public policy, as these subsidies emerge in no small part in reaction to the unintended consequences of previous policy decisions.
Any number of crops grown in the United States are subject to price controls and supports, meaning that government, rather than markets, determine what certain producers can charge for their products. Wheat, cotton, feed grain, tobacco, peanuts, and dairy products, among many others, fit this description. Price supports, which are designed to increase and stabilize the incomes of farmers, come largely at the expense of consumers. The government mandates that a product must be sold at or above a certain price, regardless of what that product would cost in a free market, and everyone must simply pay that price.
When prices increase, and especially when prices increase over equilibrium levels, which are simply processes that would emerge absent government intervention, demand goes down. People buy less when prices are high, after all. What results when this happens in agricultural products are surpluses of products that will ultimately spoil and go to waste. As a result, the government placed restrictions on output, meaning that the government told farmers how much of a given crop they could produce. As farm income declined, farmers put pressure on policymakers to make up the difference, and farm subsidies were the result.
While it might be relatively straightforward to identify problems that some think should be addressed by government action, getting those problems onto a policymaker’s agenda is another matter entirely. And here too, public interest and self-interest matter.
At the most basic level, policymakers need to care, for one reason or another, about potential policy objectives before those objectives can move forward in the policymaking process. Given the number of interests involved in every aspect of policy, it is not surprising that the competition for the attention of policymakers is fierce. In any given year, they have to consider national defense policy, foreign policy, education policy, environmental policy, energy policy, and many, many more. Almost all of these can lay a legitimate claim on a legislator’s attention, and, making matters worse, the annual budget presents a fixed amount of money to address all of them.
So why do legislators come to care about some issues more than others? In many cases, they simply have no choice. A number of policy issues are simply baked into the American political process at this point. Foreign and defense policy are among these, as are things like Social Security and Medicare. In fact, roughly 40% of the US budget is comprised of what is known as “mandatory spending.” Social Security and Medicare fall into this category, as do portions of the budgets of the Departments of Defense, Agriculture, Education, and Veterans Affairs. Legislators are legally required to care about these things. Even if they weren’t, though, they probably still would, at least in some cases. Have a look at Professor Simmons discussing the “third rail of American politics” to get an idea of why this is the case:
So the first answer to the question of how legislators come to care about certain issues is relatively clear: They come to care about issues that their constituents care about. In the case of Social Security, American citizens very clearly care. They plan their retirement years around the promises that have been made to them through this program, and they are unwilling to let policymakers alter the terms of those promises, no matter how difficult that may end up making the lives of policymakers as Social Security runs an ever greater risk of becoming insolvent. In the end, public opinion matters, and as public opinion on an issue becomes more intense, it matters more to legislators. Not surprisingly, issues that impact citizens’ bank accounts often fit this description, but many others do as well.
Money matters to legislators in another way as well, and this is where lobbyists are able to influence politics in a meaningful way. The average cost of a successful congressional campaign is in excess of $1.5 million, whereas the cost to win a Senate seat is over $10 million. There is an old saying, “Money is the mother’s milk of politics,” which means that money is the primary nourishment of the politician. Given the high cost of winning an election, legislators need to raise money almost from the moment they win their first election. Enter lobbyists, and PACs, or political action committees. These people and organizations often “bundle” donations made by their constituents and members together in order to present candidates with large sums of money that they did not have to solicit themselves. In return, some influence is expected when these people and groups have issues they would like to get on legislators’ agendas.
Most representatives also have pet issues, things that they care about for idiosyncratic reasons. This could be because a policymaker’s family once worked in a specific industry that he has retained a concern for, or because a loved one died of a disease that is being considered as a target for research funds. Any number of things can, and do fall into this category.
Finally, legislators do, in fact, care about the national interest and act to pursue it as they are able. While it is the case that every policymaker is self-interested, as all people are, it is equally true that they are also motivated to pursue the public good as well.
Policy Formulation and Adoption
Once the policymaker agenda has been set, and numbers are sufficient to carry an issue forward in the process, policy formulation is next. This typically involves multiple congressional committees and subcommittees, congressional staff, executive branch personnel, sometimes including cabinet members and their staff, and even the President himself. Listen to the following podcast from 60-Second Civics to understand the President’s role in domestic policy formulation:
At the congressional level, any member can introduce legislation, and other members can add their names as cosponsors after the day of introduction. Bills can originate in either the House or Senate, except spending bills, which must originate in the House. Once introduced, bills are referred out to the relevant committees and subcommittees for further work. Hearings are then held, and bills are “marked up,” or amended by committee members. After amendments are voted on, the bill is reported out of committee. Once a single version of the bill has been put together, it proceeds to a vote in the full body, and if it passes there, it is referred to the other legislative chamber. When House and Senate versions of a bill differ, they must be reconciled by a conference committee. Both the House and Senate must then approve the report that comes out of conference for the bill to be sent to the President for approval.
This is a complex system in which a number of actors can get involved according to their level of interest and for whatever reasons they choose. These reasons range from true concerns over the public interest to satisfying constituents to engaging in what is known as “policy symbolism,” which means voting on issues in order to be seen as caring appropriately about the “right” issues, regardless of the policy’s chance of success.
While most of our attention has been directed at the national level, the policy making process at the state-level can take a few different forms. Listen to the following podcasts from 60-Second Civics to learn about some of these processes:
While budgeting is always a concern, it becomes a requirement once a policy has been enacted. This means that once a policy has been adopted it must be funded. This remains the case throughout the lifespan of the policy. Each year, Congress conducts an appropriations process in which it decides how much money will be spent on every policy that it has enacted. This is a long, arduous process, that is not specified in the Constitution.
The Constitution does, in Article I, Section 8, grant a number of powers to Congress that are typically referred to as “the power of the purse.” But nowhere does the Constitution lay out how the budgetary process is to work. That has been the product of a long evolution, an evolution which has resulted in a five step process. First, the President submits a budget request to Congress. Next, both houses of Congress pass their own budget resolutions. After this, the House and Senate Appropriations subcommittees markup their respective appropriations bills.
The House and Senate then vote on appropriations bills, and reconcile the differences between the two versions. Finally, the President signs the bill and the budget becomes law.
There are any number of potential pitfalls along the way, and these are especially noteworthy given the high-stakes involved with the budgetary process. In addition to being complicated and difficult, the entire process is also time-bound. The fiscal year begins on October 1, but the process of formulating a budget begins in February. That period in between is a time often marked by great struggles, not infrequent impasses, and downright mean-spiritedness. To get an idea of how mean-spirited things often become, watch Profess Simmons talk about the “Washington Monument Strategy,” which is sometimes employed as budgets are negotiated:
Another strategy that is used when the financial elements of policies are being considered is “pork barrel spending,” which is a way Representatives and Senators attach local projects to legislation in order to bring taxpayer money back home to their districts and states, respectively. These projects often have little to no relevance to the bills to which they are attached, but they are allowed into those bills to secure the necessary votes for them to pass. It is an unfortunate game in many ways, but it is a game that is often played. Here again is Professor Simmons to explain:
Finally, who pays and how much is always an issue when financing new policy is at issue. Here, things become trickier than they might first appear, because it is often the case that the group who benefits from a given policy is not the same as the group who pays for it. This is known as the “free rider problem,” which Professor Simmons will explain here:
Once all of this has come to pass, policy still must be implemented. Because the role of the bureaucracy is presupposed throughout the policymaking process, and because of the United States’ bureaucratic history, most policy fits into a pre-existing bureaucratic structure, at least to some degree. And it is the bureaucracy itself which largely answers the question of how the goals of policymakers will be realized. This they do as a result of what is called “enabling legislation,” whereby Congress grants authority to governmental agencies to write the necessary rules to bring the policy objectives of lawmakers into being.
Agencies typically begin by interpreting the laws that have been passed, and they decide, preliminarily, what they will do to facilitate the requirements of the new law. They then solicit input from the public, experts, and interested parties, including Congress and the executive branch. After considering all of this, the agencies in question then issue final rules, but that is not the end of the story.
At this point, litigation commences, and courts weigh in, sometimes upholding, sometimes invalidating the rules in question for any number of reasons, not the least of which involve the constitutionality of the rules in question, or the agencies’ ability to justify the rules in light of the goals of the original legislation. Once the rules in question pass muster, they are included in the Federal Register, which is a compendium of all of the rules and regulations that have been made by all of the agencies in the federal government. Once an entry has been made into the Federal Register, it has the force of law. As agencies work through this process, they in effect make policy themselves.
While governmental agencies are empowered by Congress, and run under the auspices of the executive branch, they are in many respects entities unto themselves. They end up influencing the elected branches every bit as much as the elected branches influence them. They are not in any way the handmaidens of the elected branches. They are seemingly coequal political actors, and they play the political game in much the same way elected officials do, especially at the highest levels. They seek favorable media coverage, court popular opinion, and work to maintain the support of politicians. In short, they behave in much the same way that overtly political actors behave, which means that they also pursue their own self-interest, on both personal and institutional levels.
After all of the foregoing has been accomplished, policy still needs to be evaluated, and in many cases revised. Congress is responsible for oversight, which it accomplishes by analyzing data from the General Accounting Office. Agencies also report to Congress, evaluating their own performance and, in many cases, making the case for expanded budgets to accomplish more goals over time. Rarely, if ever, do agencies claim they receive enough funding to accomplish their goals. Further, the same group of interested parties from the beginning of the process weigh in at this point: think tanks, public intellectuals, and interest groups. Congress will often call experts to testify. In a best case scenario, policy evaluation finds problems in what is happening on the ground, and sets in place new processes and rules to address those problems.
Policies often come with unintended consequences, and these are often severe enough to warrant revisiting the original policy to some extent. Often they are simply overlooked as a cost of doing business. For example, when mandatory seatbelt, anti-lock brake, and airbag laws took effect, many drivers started driving more recklessly. And when they did, the rate of traffic accidents actually increased. Driver death rates went down, but pedestrian and bicyclist death rates actually went up, which yielded a result in which roughly the same number of people died every year after these safety enhancements than did before them.
Another example of unintended consequences came with California’s famous 1994 “Three Strikes” law, which required that someone convicted of a third felony be sentenced to 25 years to life. When California voters approved of this ballot proposition, they likely did not realize just how many things most would consider petty crimes are, in fact, felonies, and stories began to emerge almost immediately of people being sent to prison for the rest of their lives for relatively minor offenses. One horrible unintended consequence of this sort of law is that someone about to be caught for a third strike has a very high level of motivation to elude capture. And studies of the data from Los Angeles suggest that this has led to the deaths of police officers who were killed by someone who knew life in prison was his only other option.
Here is Professor Simmons talking about another unintended consequence, this one stemming from the Endangered Species Act:
The public policymaking process is long, complex, and unwieldy, and yet, policy gets made with remarkable regularity. Every year the Federal Register grows. In 1936, its first year of publication, the Federal Register was 2,620 pages long. Today, it is 80,000 pages long. As difficult as the policymaking process is, it is apparently not that difficult. Virtually every aspect of American life is now touched by some form of regulation, from the cars Americans drive to the safety of the workplaces, even to their private homes and families.
To get a sense of what is regulated in the name of consumer safety, have a look at Randy Simmons discussing automobiles, airlines, and safety here:
In the earliest days of the Republic, it was commonly asserted that we were to be a nation of laws, not men. We have gotten our wish, and then some.
- Policy making process
- rent seeking
- policy agenda
- policy symbolism
- unintended consequences
- perverse incentives
- Federal Register