This work is licensed under a Creative Commons Attribution 4.0 International License.
By Andy Oram
June 24, 2009
This article was originally published on the O’Reilly Media web site. The article is the last in a series leading up to the Personal Democracy Forum. The first article was posted on June 16, 2009 and the second on June 19.
Whole libraries could be filled with writings about the growth of executive power during United States history. The power of the executive branch is likely to increase with technology. But for open government, that growth may be a necessary transition to more public involvement.
As its name indicates, the executive branch is responsible for carrying out the law. The open government movement wants the public to have more say in its own governance, and envisions a more fine-grained implementation of government’s role in everyday life. For instance, open government advocates want more citizen input into details such as the siting of physical facilities and the choice of projects for funding. Logically speaking, therefore, the public has more control over implementation if decision-making is shifted from the legislature to the agencies carrying out the law.
Congress should also crack open its hidden chambers; law-making itself could be much more open. It will be interesting to see what comes out of work on a collaborative law drafting project in health care, started by Congressman Anthony D. Weiner of New York. I don’t harbor any fantasies, though, that much of his public input will survive the traditional Congressional horse-trading that will follow.
But even the most ideal legislative process ends up with a static document that tries cumbersomely to anticipate every use and abuse of its language. (That’s why laws are filled with hedges such as “This passage shall not be construed to…”) Legislation is like setting off over rough terrain in a tank. Although the tank can complete the journey, it does so only by flattening everything it encounters.
Some political scientists also think that the executive branch is inherently better suited to understanding and responding to public needs. Here is an intriguing quote from Jane E. Fountain’s Building the Virtual State: Information Technology and Institutional Change, summarizing work by Alfred C. Stepan:
Intellectual activities and decisions of civil servants working for long periods on policy questions are arguably more powerful and influential than the sporadic attention of legislators to particular policies.
So I’ll take a look at the future of the executive branch, and end this three-part series with speculation about how to build fewer legislative tanks and more Jeeps.
There’s little mystery concerning about why the power of the executive branch tends to grow. Of the three branches of government, it’s the one that actually arrives on the scene. It makes decisions about real people and activities on a daily basis and takes responsibility for those decisions.
To act effectively, the executive branch tends to centralize. (Unfortunately, so have many legislative branches in recent decades. The Commonwealth of Massachusetts is run by three people, when they’re not fighting indictments or running off to seek other positions: the Governor, the Speaker of the House, and the President of the Senate.)
Because knowledge is power, technology will cause the power of the executive branch to skyrocket over the next few decades. Civil liberties advocates already decry surveillance cameras, wiretapping, the subpoening of information collected by private firms, and the computer analysis that the government applies to all the resulting data. But the data currently available is miniscule compared to everything that will be collected by atmospheric sensors, electronic toll collectors, and various other technologies that are starting to be installed. If Microsoft can produce a game machine cheap enough for the consumer market with face recognition, voice recognition, and full-body motion sensing, what can the government do to track us?
So the power that the executive branch takes on in the political realm will be multipled by the potency it obtains from the data it collects and from ever more sophisticated tools for analyzing that data.
(Strangely, the strict constructionists and “original intent” scholars, who bar judges from interpreting the Constitution broadly, don’t apply these restrictions to the ever-expanding executive branch.)
I don’t know how to halt this expansion of power. We could open-source the Panopticon by demanding that the public have access to all data collected by public cameras and senors. That won’t help, though, because the data will still prove useful mostly to large organizations with the time and expertise to analyze it. And do you want to encourage every budding computer hacker in the country to become a data-mining Nancy Drew?
We could call for strict laws to restrict the collection or sharing of data. You’ll still suspect that somebody is collecting information on you. But you’ll rest easier because the fear of prosecution will keep them from sharing the data with most of the people you are afraid to have know it.
Still, the reasoning in this article suggests that open government advocates should welcome the shift of initiative away from the legislative branch to the executive one. But only if that’s a transitional stage to lodging decision-making more in public hands.
In fact, the other two branches of government and the public had better find ways to implement collective participation, because it may be the only alternative to a resurgent Government 1.0.
To make this shift a positive change, we’ll need well-established government/public collaborations that run through the whole cycle I described in my first article. We’ll need to make sure that everybody is online and has the training to participate in decisions at the level of their competence and interest. We’ll also need to refine polls and discussions to give us confidence that the public’s most important concerns and desires rise to the top of the forums.
And when all that’s in place, we can start to experiment with adaptive legislation.
I mentioned at the beginning of this article that legislatures could develop laws in a more transparent manner. But that’s only a start. If they could rely on public participation during the implementation of the law, they could write laws that embrace such input.
Laws already include feedback mechanisms. Many call on an executive agency to collect information on the effects of the law, run hearings, and release a report after a fixed amount of time so that the legislature can evaluate whether the law is achieving their goals. This practice could be dramatically extended by involving the public in the implementation of the law at the start, though continuous forums. The feedback loop would be reduced from years to weeks.
Laws also include ways to delegate control. For instance. Community Block Grants are offered to municipalities to spend as they see fit. (My town manager spent several hundred thousand dollars of our block grant to improve a park next to Town Hall, which in my opinion showed dubious judgment during an affordable housing crisis.) The idea of delegation could also be extended to more and more facets of law. What if a virtual town hall debated the expenditure of the town’s Community Block Grant?
Critics of government solutions to social problems—usually political conservatives—accuse the law of being too rigid. The legislative process has trouble evolving with the times and responding flexibly to new conditions. Well, with provisions for public comment and group decision-making, laws can be as flexible as we want.
Congress needs evidence, though, that public feedback reflects the diverse needs and values of the population. Public participation must be protected against the complementary evils of capture by special interests and tyranny of the majority, which I have termed the problem of stakeholders.
If the public can live with a law it debates and tweaks as well as it can live with a law designed by Congress, adaptive legislation is viable.
And we need this flexibility, because the really big problems we have to tackle are what computer scientists call “massively distributed.” Problems of this type include climate change, health care cost control, a food crisis that leads to rampant obesity in some populations and rampant starvation in others, job creation in an era of reduced staffing needs, and more.
The presence of the term “Collaboration” in the Administration’s open government initiative reflects their understanding that they cannot solve the problems by themselves. Nor can technology, the market, or educational efforts—they must all work together. The concept of “Megacommunity” perhaps reflects the size of the effort (I actually find the “mega” part of the term slightly redundant) but may not even be enough to capture the extent of cultural adaptation required. In any case, adaptive legislation could trigger related efforts and bolster their effectiveness.
Although Obama’s approach to data sharing is a welcome sea change from the previous administration, the most committed members of his constituency press him to show more transparency about things that particularly matter to them, such as the role the Administration is playing in the financial system and what it knows about torture.
When Change.gov opened a public forum for questions at the beginning of Obama’s presidency, the first place was taken by a question about prosecuting US officials suspected of promoting torture. Progressives then cried foul when the Administration failed to answer.
But did Obama really fail to answer? On April 16 he released Bush Administration memos that showed irrefutably that highly placed officials had discarded legal safeguards to institute interrogation practices that were described by these memos in gory detail.
Yes, Obama has resisted investigations of torture before and after this moment. But I am convinced that by releasing the memos he launched a historical process that cannot be reversed. The memos were his answer to the question that the public forced on him in January.
He has made the kind of political calculation that is his hallmark, deciding not to confront Republicans directly with a torture investigation. But if decent citizens keep up the pressure, prosecution will ultimately reach any US officials responsible for human rights violations, just as it did Pinochet and Fujimori. Open government applications do not free activists from the responsibility to engage with every accessible locus of power.
What democracy advocates must remember is that open government is not just a discussion forum. It’s a maelstrom of intersecting investigations and competing proposals just as complex as the current political process. In fact, open government can succeed only by integrating with a political process that has a twenty-five hundred year history, even though our goal over time is to transform that process.
Now that the Administration wants to dance, we must learn all the steps. Listen closely: the musicians have already struck up their first round.
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