My Thoughts on Peters Chapter 5

Policy analysts are generally concerned with problem-solving, and finding the "best" solution to a public problem. (Of course, the determination of what is best could be based on quantitative, qualitative, cost-benefit, decision, or ethical analysis.) Often, we believe that once the best solution has been found, the work of the policy analyst is done and now the solution will be handed over to the policymakers to pass and implement. This is the view of the policy analyst as scientist or technocrat, but policy analysts who stop here are often not successful at seeing their policies carried out.

In many ways, the policy analyst must become an advocate and enter the political realm. After all, if you have discovered what you think is the best solution to a problem, you will of course desire that such a solution be put into practice. This is where the policy legitimation stage becomes so important. 

The United States in particular has many branches and levels of government, each with varying degrees and types of legitimacy. A strategic policy analyst will try to find the branch and level of government with the proper legitimacy to carry-out her proposed policy. This is where Peters' modes of legitimation (Figure 5.1) comes into play. Based on her assessment of her policy as majoritarian versus non-majoritarian and appealing to elites versus the masses, she can choose the branch of government through which she will attempt to implement her policy. Further, the degree of relative legitimacy between federal, state and local governments may also influence her decision of where and how to attempt to carry-out her policy.

Policies that appeal to elites and majorities will likely see successful passage through Congress. Of course, logrolling and pork barrel politics can turn a policy that many legislators and elites feel ambiguous towards into a successful policy. At the same time, it becomes very easy for a policy that is objectionable to a very small number of legislators to be vetoed in Congress. This is particularly true in the Senate where the tradition of unanimous consent allows for one strenuously opposed Senator to hold up a bill for a substantial period of time. 

For policies that tend to be nonmajoritarian and appeal to elites, a policy analyst would likely try to carry-out her preferred policy through the bureaucratic rule-making process or the courts. Policies that are overly technical are rarely completely formed by legislators. The bills passed on technical issues often express the intent of the Congress on a particular issue and leaves the details to be filled in by the appropriate agency. Issues like healthcare reform and bank regulation by necessity require the skilled professionals in the respective agencies to determine detailed policy prescriptions during the rule-writing process. The podcast Writing the Rules covers this process for the bank reform legislation passed last year. As you will see, policy as it is experienced by banks and consumers is really determined by the professional bureaucrats who are more knowledgeable in the subject area than the policymakers.

On the other hand, policies concerning constitutional rights and responsibilities are likely to be carried out through the courts. It should be noted, however, that the courts do not choose to decide whether X, Y, or Z is constitutional. Policy analysts and advocates will have to create a test case to bring before the courts. The famous Scopes trial portrayed in Inherit the Wind and Roe v. Wade are famous examples of test cases created to bring an issue before the Supreme Court. Many believe that recent ballot initiatives and legislation proposed in conservative states to ban abortion are really attempts to create a new test case to challenge the Roe v. Wade decision.

This brings us to the third cell in Peters' modes of legitimation typology, policies that have mass appeal and are majoritarian. Peters' argues that these policies will have the greatest success as referendums or ballot initiatives. We have recently seen a surge in the popularity of ballot initiatives as a means for passing preferred policies. Sometimes, these initiatives are put forth in a single state, but more often than not we see initiatives put forth in many states at once. Because these policies appeal to the masses and are majoritarian, there is sometimes a fear that they will lead to "tyranny of the majority over the minority". The relationship between referendums and initiatives and court actions, is I think an interesting one that brings up issues of populism v. elitism and majority rule v. minority rights. In Arizona, we see a very interesting process occurring where elected officials are asking the courts to weigh in on the approved medical marijuana ballot-initiative. 

Peters leaves the fourth cell of his typology (Mass and Non-majoritarian) blank. He argues that protests and revolutionary movements could be placed there. I would argue that the Wisconsin collective bargaining protests would be a modern example of a mass and non-majoritarian mode of legitimation. Although increasingly uncommon in the United States, I would also include labor strikes in that cell. On the other hand, I would hardly consider the protests and revolutions occurring in the Middle East to be non-majoritarian. What would you put in that cell? The Tea Party? Communities that go "off the grid"? The Civil Rights Movement of the 1960s? Riots?