November Fifth Coalition Policy Proposals

III. Rationale

Since the last major revision of administrative statutes, we have learned more about what it takes to make public participation effective and useful. Moreover, the nature of public problems has changed; they now require collaboration across agencies and with stakeholders in the public in order to produce sustainable solutions. Our federal government needs to update its rules and processes for working with the public and stakeholders in order to reflect these new realities.

Collaborative governance is the involvement of citizens and stakeholders in forming, implementing, and enforcing policy through the use of dialog and deliberation embedded in the processes of government over time. Broadly framed, it also includes collaboration with stakeholders in the form of networks of public, private, and nonprofit actors and civil society.

The existing legal framework is inadequate and poses barriers to collaborative governance. Public policy problems cross sectors (public, private, nonprofit) and jurisdictions (transnational, federal, state, local). Increasingly, citizens want to play more of a role. They reject the adversarial discourse that has come to characterize the legislative process. They want an opportunity to participate in a civil and thoughtful discussion of the substantive issues, and they want government to listen.

The existing legal framework is framed from the perspective of unitary agency action. Title 5 of the US Code does not use terms like ‘collaboration’ or ‘network.’ Moreover, it requires but does not define public participation. The Administrative Procedure Act provides for public participation through public hearings, transparency, and notice and comment in rulemaking. The words ‘dialogue’ and ‘deliberative democracy’ do not appear in Title 5. The US Code uses the word ‘deliberate’ only in connection with deliberation by members of a multi-member board or commission, not regarding deliberation among citizens.

This legal infrastructure has created obstacles to better civic engagement. For example, one agency was dissuaded from using a large-scale model because it could not capture all the comments of all the participants engaged in simultaneous conversation in many small group deliberations and incorporate them into the rulemaking record under the APA.

Another obstacle is insufficient agency training and expertise in civic engagement. Agency officials often lack the knowledge or skills they need to structure and organize more innovative forms of participation such as deliberative democracy. Absent legal authority to use the processes, there are problems with contracting to obtain the training or the assistance of expert practitioners.

Increasingly, government is operating through collaborative networks to implement policy and deliver services. However, these networks do not necessarily incorporate the public voice. There is no over-arching legal framework to provide for transparency or accountability in network governance.

A Collaborative Governance Act would directly address these problems and serve as an impetus for broader and better civic engagement. This is not the first time in recent memory that innovation has demanded that Congress revisit administrative law. In the early 1990s, Congress enacted new authority to permit the public to participate in the work of government through administrative dispute resolution and negotiated rulemaking.

The Administrative Dispute Resolution Act had a simple structure and no immediate budgetary impact. It provided agencies with broad authority and discretion to use any form of dispute resolution (mediation, facilitation, arbitration, and others). It required each agency appoint a dispute resolution specialist and develop a policy on how it planned to use dispute resolution. It did not mandate use. This simple framework resulted in a broad expansion of mediation and dispute resolution in the federal government, which in turn greatly enhanced opportunities for voice and participation in decision-making by citizens, stakeholders, and federal employees.

There are other precedents for using a legal framework to change practice. The United States Institute for Environmental Conflict Resolution provides convening, facilitation, and mediation services for environmental disputes. The Federal Mediation and Conciliation Service provides similar services for employment disputes. Agencies have specific authorizations to use forms of dispute resolution. Each new form of infrastructure influences and improves practice.

IV. Proposed Structure of Collaborative Governance Act

The Act would provide broad authority for agencies to use a variety of models for civic engagement, including innovations in public deliberation, online public involvement, and dialog.

The Act would require that agencies appoint a collaborative governance specialist to build expertise and capacity and provide training.

The Act would authorize networks of public, private, and nonprofit stakeholders to collaborate and provide for their accountability and transparency.

The Act would provide for civic engagement by networks of public, private, and nonprofit actors.

The Act would help institutionalize collaboration in governance.