April 25, 2013


Getting Policy to Implementation: A Cautionary Tale

It’s not only about getting research to inform policy, it’s also about  how these policies are implemented.

In discussing how we turn good research into policy, we often resort to the “supply-demand model“, in which researchers supply policy fixes, responding to the demand of policy-makers. This model helps to remind researchers and donors that demand for research can be as important for impact as the quality of supply.

Yet the supply-demand model also risks making the process seem like a sale in a marketplace, in which policy solutions change hands, from producers to users. This transactional metaphor may not do full justice to the complexity of the process, as Enrique discussed when he argued for a density model, according to which we look at how much quality information is available around an issue.

recent feature by Haley Sweetland Edwards in the Washington Monthly now illustrates just how adversarial some aspects of policy implementation can become. According to Edwards, a significant part of policy implementation in the United States happens “largely behind closed doors, supervised by people we don’t elect, whose names we don’t know, while neither the media nor great swaths of the otherwise informed public are paying any attention at all.”

In telling how complex policies are implemented, Edwards focuses on one recent landmark law, the Dodd-Frank Act. This Act was intended, in the words of President Barack Obama, as a “sweeping overhaul of the United States financial regulatory system, a transformation on a scale not seen since the reforms that followed the Great Depression.” Yet, as the article highlights, more than two years after Dodd-Frank was passed, many key provisions are not implemented, and others have been modified or halted altogether.

How does this happen? Put simply, it is because of rules. Edwards says that:

“big hunks of legislation, despite being technically the law of the land, filed away in the federal code, don’t mean anything yet. They are, in the words of one […] official, ‘nothing but words on paper’ until they’re broken down into effective rules, implemented, and enforced by an agency. Rules are where the rubber of our legislation hits the road of real life. To put that another way, if a rule emerges from a regulatory agency weak or riddled with loopholes, or if it’s killed entirely […] it is, in effect, almost as if that part of the law had not passed to begin with.”

Dodd-Frank, named after the lawmakers overseeing its adoption, may be a particularly salient case in the United States, and big money is at stake, but the problem is familiar in many contexts. As one former colleague put it to me, there is a widely accepted saying that “India has an excellent tradition of success in planning, and an even more excellent tradition of utter failure in the implementation of these plans”.

So how does a landmark piece of legislation that has the support of the US President get weakened, riddled with loopholes or killed altogether? The article suggests there are three ways to foil unwanted legislation:

  1. Lobby the agencies, intensively, and keep affairs so complicated that the agencies struggle to keep up.
  2. Go to court, and try to kill specific rules, for example by arguing that the words “as appropriate” in an Act could well mean that no regulation is appropriate; the article details how this has been done successfully by industry groups.
  3. Work with Congress, to introduce retroactive changes or loopholes, or to take funding from implementing agencies.

Given that delaying regulation may be highly profitable, its opponents have a strong incentive to work on all three levels, and to engage on every detail. The practice of rule-making gives them ample opportunity to slow down the process. Specifically, there is a public consultation period set out by the Administrative Procedures Act, APA. This so-called Notice of Proposed Rulemaking, or NPRM, is the step in which agencies set out proposed rules, and invite comments. Other agencies may get involved, add their comments to MS Word documents through Track Changes, and as one official says, at the end of the process a complex rule is “lit up like a Christmas tree”. Yet it’s a lot less peaceful than Christmas is supposed to be. One former regulator describes it as “this constant, never-ending onslaught,” and a former Senator likens it to guerrilla warfare in which the state agencies are “totally outgunned”.

The article thus highlights that the real finish line for policymaking is in the detailed implementation of rules, which often are developed by executive rather than the legislative institutions. This may be familiar to people who have worked on the inside of policymaking processes, but it isn’t always at the forefront of the evidence-to-policy literature. As mentioned above, it also is a potential weakness in a simplified supply-demand model of policy research. The supply-demand model rightly emphasizes that in providing good research, institutions have to add value, that they need to market their ideas, and it encourages innovative approaches to stimulating demand. It thus moves us beyond just generating research, without thinking about its uptake.

Yet models, like the best metaphors, have limits, and one risk in the supply-demand model is that it implies that policies, like goods, are handed over from the thinkers to the doers. This can work where interests are well aligned, and in which issues are not complex. At other times, however, getting policies actually implemented requires “sustained advocacy”, as a think tank researcher in Ghana once put it to me.

Edwards says five things can lead to a better policy outcome for Frank-Dodd, and her advice may be of interest to those thinking about getting complex policies implemented in other settings:

  1. Executive involvement, in that the White House itself needs to watch that its intentions are implemented, using its best lawyers, giving attention and support to its own agencies.
  2. Ensuring objective information, and correcting the imbalance in which those that are to be regulated have more information than those who are supposed to regulate them.
  3. Engaging the agencies. As one senior representative of an agency says, “[f]or every one hundred meetings I have, only one of them is with a consumer group or citizens’ organization”, and this skews the debate in favor of industry interests, to the detriment of the average citizen. Consequently, Edwards suggests that if you want reform to succeed, you need to continuously talk to the agencies that implement the details.
  4. Public vigilance: as 75% of Americans seem to favor tougher rules for Wall Street, Edwards suggests that at least in theory, some of the enthusiasm for arcane detail shown by the multitudes contributing to Wikipedia could be applied to watch the agencies’ rule-making with more vigilance. Citizens should also ask their political representatives to pay attention, since research suggests that continued interest by legislators is one of the most effective ways of curbing industry influence as details get negotiated.
  5. Continued press coverage: while the passage of a bill may be particularly exciting, the actual implementation of the regulatory process requires extensive attention, difficult as that may be at a time in which there are few thriving business models for quality journalism.

Think tanks could have a constructive role to play in such aspects of policy implementation, especially if they are entrepreneurial in pursuing opportunities. In principle, they are well placed to follow complex issues, offering objective information and, as Enrique recently pointed out, in contributing to public vigilance.

Nevertheless, think tanks do not feature much in Edwards’ piece. Soberingly, when think tanks are mentioned, they appear primarily aligned with industry interests. One researcher, Kimberly Krawiec, a professor at Duke Law School found that during the public comment period, “the vast majority of substantive public comment letters were from the financial industry, trade groups, and their various proxies – lawyers, lobbyists, and under-written think tanks – all of whom have the time and money to present extensive, if wildly biased, legal and economic arguments.” It’s not a flattering image: think tanks as auxiliaries, ranked behind lawyers and lobbyists, presenting wildly biased positions. Are think tanks merely theologians of apology?

To be fair, a quick scan of think tank websites shows that several of them have been active in commenting on Dodd-Frank’s progress towards implementation. The Center for American Progress, for instance, pointed out in July 2012 that passing Dodd-Frank “was only the first step”, and at Brookings Nonresident Senior Fellow Michael Barr at the end of 2012 said that it is “time to finish the job of financial reform.”  Barr, previously assistant secretary of the treasury, is described on his biography as “a key architect of the Dodd-Frank Wall Street Reform and Consumer Protection Act”, and thus has good reason to follow its implementation. Yet even his coverage of Dodd-Frank through Brookings is limited to a handful of posts per year, with little uptake by the public through comments or social media. By contrast, Heritage has persistently attacked Dodd-Frank, in strident tone, suggesting it hurts consumers, and saying that the “regulatory backlog highlights how unworkable the law is for both bureaucrats and businesses”.

More broadly, this brings us back to the question of what business model we have for creating better policy outcomes. Behind the Washington Monthly, we find some of the same donors who have been contributing generously to think tanks: the Carnegie Corporation of New York, Ford Foundation, William and Flora Hewlett Foundation, the Rockefeller Brothers Fund, and others more. And part of the Washington Monthly’s self-description would sound familiar to think tanks, too. “We care about how the government can be improved”, and “Instead of cynically tearing down institutions and programs, we offer innovative solutions: how to get the best people to work for the government and how to get the best government for the people”. A look at the Washington Monthly’s IRS filings show that it does this work on a shoestring. There are think tank directors whose salary is higher than the entire budget of the Washington Monthly. Subscriptions covered less than a quarter of its 2011 budget.

It has been en vogue to argue in favor of open source, and against pay-walls. I’m all in favor of making materials widely available, as I have benefited extensively from this access when abroad or working freelance. At the same time philanthropy is not a sustainable model for providing essential public goods, and if we want better policies, we need to think about how we can develop a contribution culture in which more citizens fund the media that do thorough longform journalism, and the think tanks that follow these issues systematically. It shouldn’t be a point of implicit pride that one does not pay for content. Rather we need clairvoyance that if we want quality in information, and in the pursuit of policies, we need to pay for that as well.

Edwards’ Washington Monthly article is here, for free.

About the author:

Hans Gutbrod:  Executive Director at Transparify

Read more from: Hans Gutbrod