The Deliberative Agency: Opportunities to Deepen Public Participation - Assignment Example

Public involvement in the activities of federal agencies is required by numerous Acts of Congress, among them: the Federal Advisory Committee Act, the Government Performance and Results Act, the National Environmental Protection Act, the E-Government Act, and the National Environmental Protection Act. Recent legislative activity suggests a heightened interest in this area as well.

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This, together with the increasing use of both face-to-face and online collaborative forums in civil society and the private sector, is increasing pressure upon government agencies to bring the public into decision-making processes. Methods for deliberative citizen engagement emphasize non-adversarial, results-oriented, community-wide decision-making on large issues and are being used with increasing frequency around the world in a range of settings. This emerging field of practice is producing an array of tools and processes that can support the evolution of the deliberative agency.

This paper will provide a general introduction to this exciting and growing field of democratic activity. The first section will provide an overview of the thought and practice that currently constitutes the “field” of deliberation. The second section will provide an overview of the enabling policy environment for public participation, and the third will explore how deliberation can be used to enhance agency decision-making and share several practical examples of its application to agenda setting, policy formulation, and resource allocation decisions. In conclusion, the authors suggest several ways agency administrators and managers can improve the deliberative aspects of federal agency decision-making.

What is deliberative democracy and why might democratic deliberation appeal to federal agencies? Deliberation builds upon what the United States government has called “a basic tenet of Western democratic traditions,” namely that “placing citizens closer to the affairs of government strengthens democracy, stability and transparency, and results in more sound government practices.”3 Democratic deliberation seeks to build upon traditional models of “public participation”-opinion polls, public hearings and meetings, and comment periods-by advancing richer forms of citizen involvement in governance processes, the benefits of which extend well beyond the collection of information useful to decision-makers.

Deliberation is, primarily, a discursive (distinct from, say, an aggregative) approach to decision-making in which citizens come together in a non-coercive environment to identify and discuss public problems and possible solutions. During deliberation, participants “consider relevant facts from multiple points of view, converse with one another to think critically about options before them and enlarge their perspectives, opinions, and understandings.”4 Ultimately such processes of group reflection are used to render a public judgment as to the best course of action.

Deliberation is often viewed as superior to traditional forms of public involvement through which individuals or organizations state their viewpoints. Deliberation offers a different structure, resulting substance, and civic benefits. Through deliberation, the public is able to come to a better shared understanding of underlying issues, make substantively better policy recommendations, reduce friction, and experience “empowerment” as individual citizens. It is expected (but not known) that the civic benefits of deliberation-education, engagement, and social capital-can smooth implementation and provide lasting benefits for democratic life. Furthermore, decision-makers profit from the experience by acquiring substantial information about the values, aspirations, and specific concerns or recommendations of citizens on an issue, reinforcing their leadership position. At the same time, the likelihood of future conflict over the issues is substantially reduced and the road paved for successful, lasting implementation.

Characteristics of Deliberation

Deliberation can be distinguished from other forms of discussion in its emphasis on individuals being willing to, momentarily, set aside self-interest in the outcomes. Deliberative theory suggests instead that deliberators examine solutions in terms of a common best interest, i.e. the interest of one’s neighborhood or community as a whole. Deliberation also presupposes that no individual holds the best answer to a public problem; rather the process of structured conversation will yield solutions. Finally, deliberation differs from, for example, negotiation in that participants don’t come to the table with strong ideas about what they will or will not compromise to accommodate the needs of others. Instead, participants come prepared to engage in the free and equal sharing of information that will help everyone arrive at reasonable, if not ultimately more just, outcomes.

Several general characteristics of ideal public deliberation make it useful to policy and decision-making bodies. 5 These include:

– Focus on action, what is to be done in some situation by some agent, either an individual or a group of individuals. The “focus on action” sometimes takes the form of a commitment by decision-makers to incorporate the results of deliberation into policy. In many deliberation efforts, citizens and their organizations-including businesses, nonprofits, associations, churches-take action themselves, in partnership with government or independently from it, to implement ideas that have been generated in the discussions. Many of these successful projects make it clear to participants that they will be expected to help solve the problem at hand, rather than simply making recommendations for others to implement.

– Discussion of a course of action may include arguments based on appeals to values, which although often important, may not be included in information-seeking dialogues that stress quantitative analysis. Appeals to, and the subsequent clarification of, values often provides useful advice to policy-makers when trade-offs are concerned, for example when the potential long-term effects of a decision are measured against short-term gains or losses.

– Absence of pre-existing commitment by sponsors and participants to a particular outcome. A deliberation dialogue is not, at least at its outset, an attempt by one participant to persuade others to agree to a pre-defined proposal. While a well-run deliberation will require an agenda, it is subject to the influence of participants. As new proposals, concerns or solutions emerge and are recognized as a priority they can be incorporated into subsequent discussions.

– Mutual in focus, not a negotiation of personal interests competing for accommodation in the resulting decision. In general, deliberators are encouraged to approach problem solving from the perspective of a “common interest,” participants seek to ensure general satisfaction among all participants with the proposed course of action, often changing their own views and attitudes toward “what is possible” as a result of deliberation.

– Information is not withheld, recognizing that the likelihood and quality of mutually satisfactory outcomes will increase with free exchange of knowledge and information. Experts, decision-makers, and participants seek to disseminate knowledge widely among the group, with an interest in maximizing the availability of data that informs decision-making. Because the process is mutual in focus, there is not much to gain from hiding important facts about a problem before the group.

– Occurs optimally in small groups (9-15). Deliberation requires a small group discussion format that optimizes the opportunity for each participant to meaningfully contribute to the conversation. As groups increase in size, intimacy, trust, and individual voice are lost as each participant has less opportunity to speak and competition for “floor time” is increased. Small groups also allow participants to share personal experiences relating to the topic at hand before they get into the more technical or controversial questions.

– Takes place within the provenance of a decision-making authority. In principle, ideal deliberation will have an impact on some kind of outcome, for the purposes of governance, on decision-making. Decision-makers, much like citizens, are generally disinclined to support policy proposals over which they have little influence. Therefore participatory deliberation is often sponsored, if not initiated, by a government agency or decision-making body rather than operating independently of institutional processes.

To illustrate the contrast between deliberation and traditional forms of public participation, it is useful to examine a common tool for public participation in policy-making, the public hearing. A traditional public hearing, broadly defined, is designed to facilitate the exchange of information between experts and citizens, policy-makers and the impacted community. The general purpose of a public hearing is to “receive testimony and public comments” on draft policy, during which policymakers may give background information. 6 Typically, such communication stimulates little in the way of community dialogue despite the best intentions of “outreach” efforts.7

While representatives of community groups may regularly be present to offer views of their constituents, the public hearing process fails to facilitate the engagement of citizens with one another or to allow an in-depth exchange with policy-makers. According to the findings of one study, “government agencies tend to practice more of the public information model of communication that stresses the one-way dissemination of information to publics, without giving much thought to feedback or symmetry.”8 Any “public comments” rendered at such forums are necessarily constrained by time and information as much as by design: there is generally insufficient opportunity to come to an understanding of the range of personal experiences and points of view that are at play beneath the surface of complex policy issues. Results of the same study showed that respondents, “tended not to be overly satisfied with public meetings as a way of involving them.”9

Deliberation, by bringing policy-makers and citizens together in discussion, encourages reflection and an understanding of multiple forces and views that surround an issue before citizens render their comments on a potential or draft policy.

Five Rationales for Deliberation

There are essentially five general rationales for citizen deliberation in democratic governance.10 Each rationale implies substantially different outcomes, constituting a range of reasons one might employ to justify the sometimes costly, often time consuming, and always arduous task of organizing a deliberative forum of any kind. No single rationale should be taken as a central or primary justification for deliberative and participatory approaches to governance. Rather, the rationales should be used together to ensure successful policy decisions across the multiple dimensions of an outcome.11 The common rationales are:

* Citizen participation in policy formulation and decision-making can reduce conflict. This instrumental rationale argues that, by involving all the perspectives of community members who will be impacted by the policy outcome-and the competing interests-in governance processes, consensus develops around politically reasonable outcomes and lays the groundwork for successful implementation. While insufficient by itself to justify deliberation from the community-members’ perspective, it poses a reasonable advantage over litigation, for example, for agencies and their contractors who run up against mobilized communities.

* Citizen participation can lead to better, longer lasting, and wiser policy choices. The substantive rationale holds that, given the multiple dimensions of policy outcomes, expert and elite perspectives are limited. Citizens, it can be said, have a good sense of their needs; this argument makes the case that the privately held knowledge of citizens-grounded largely in local experience-uncovered through deliberation can contribute valuable information to the policy process that would otherwise be overlooked.

* Citizen participation builds citizen competence. The civic rationale makes the case that, in addition to contributing to greater citizen awareness of issues and the competing points of view that surround those issues, citizen involvement in policy deliberation also helps to cultivate the skills of rational dialogue, active listening, and problem solving. An important variation of this, particularly for residents of poor communities, is the empowerment rationale, which makes the case for citizen participation on the basis that it gives citizens greater authority, the opportunity to problem-solve and, ultimately, better their lives through empowered mechanisms that impact outcomes. 12

Furthermore, citizen participation can build capacity for solving public problems within communities over time. The capacity-building argument assumes that, by engaging many people and organizations in addressing an issue, and by encouraging them to implement the action ideas they generate, the community can become better able to achieve public priorities.

* Citizen participation cultivates mutual understanding, builds bonds of trust among citizens, decision-makers and governing institutions, and can effect changes in political attitudes and behavior. This social capital rationale suggests that, by creating opportunities for positive and negative feedback in the policy process, deliberation can re-engage citizens in the political life of the nation and reverse long-term declines in political and civic engagement.13

* Citizen involvement in decision-making is something governments should do. This is the normative rationale, and is grounded in something of a republican reading of liberal democratic theory. Such a view holds that citizens, as members of a political community, have certain rights to self-government, among them the right to have a say in the decisions that impact their lives.

Several policy frameworks exist through which to introduce-and strengthen-a deliberative interpretation of “citizen” or “public” participation in policy formulation at the federal level. While agencies often use these policy frameworks as guidelines for informal experimentation with new ways to involve citizens, formal and empowered deliberation in federal agencies is uncommon. Furthermore, there are no shared standards for deliberative practice nor is there a structure for sharing best practices. These are a few of the gaps that can be filled through leadership at the federal level.

Legislation constituting the present policy environment for citizen participation includes:

* The Federal Advisory Committee Act (“FACA”), passed in 1972, governs the establishment of Executive Branch advisory committees, commissions, task forces, etc. According to one report, FACA has had a number of notable successes,” but “has also created, directly and indirectly, a number of ‘chilling’ effects on public participation in environmental decision-making,” which together “create a paradox wherein agencies are reluctant to engage the public in decision-making outside of FACA,” despite the fact that “significant barriers keep groups (and agencies) from forming advisory groups and committees under the Act.”14

* Government Performance Results Act (“GPRA,”), passed in 1993, arguably provides a boost to citizen participation. Among other purposes, GPRA seeks to “improve the confidence of the American people in the capability of the Federal Government,” improve public accountability, provide federal managers with “information about program results and service quality,” and “improve congressional decision-making by providing more objective information.”15 Today most agencies are working under plans that stress transparency and accountability, implying a closer working relationship with citizens, while the reality remains that little in the way of substantial procedural change has taken place to encourage greater citizens influence in decision-making processes.

* The Administrative Procedures Act (“APA”), passed in 1947, requires federal agencies to, “keep the public currently informed of their organization, procedures and rules,” and provide for “public participation in the rule making process.”16 Much like FACA, the Administrative Procedures Act remains a general framework for guiding a broad range of citizen participation activities. In the best circumstances, APA has led to successive rounds of experimentation with “two-way” methods of information sharing and created more bargaining room for “citizens groups” at the table.

* The National Environmental Policy Act (“NEPA”), passed in 1969, instructs agencies to work “in cooperation with State and local governments and other concerned public and private organizations” and states that expert committees will consult with citizens advisory groups.17 The statute further instructs all agencies to, “utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision-making.”18 Environmental impact statements that have developed out of this legislation, and court decisions of later years, have strengthened a participatory interpretation of the statute. In particular, “scoping”-defining the reach of compliance documents-is one of the few areas in which the public is regularly involved in specialized policy agenda-setting. Court decisions have included language such as, “The EIS [Environmental Impact Statement] should provide the public with information on the environmental impact of a proposed project as well as encourage public participation in the development of that decision.”19

* The Administrative Disputes Resolution Act (“ADRA”), passed in 1996, promotes alternative means of dispute resolution as an alternative to litigation in Federal courts. While the practice of alternative dispute resolution refers to a well-accepted set of practices, ADRA defines the term broadly as “any procedure that is used to resolve issues in controversy, including, but not limited to, conciliation, facilitation, mediation, fact finding, mini-trials, arbitration, and use of ombuds.”20 While circumstances for invoking deliberative citizen participation will likely engender unique conditions, specific methods, such as the Citizens Jury and the Danish Consensus process, described later in this report, could prove instrumental in such cases where the public is deemed a sufficient arbiter of an administrative dispute.

* The E-Government Act (“EGOV”), passed in 2002, both ensures the expansion of information availability over the internet and application of APA Title 5 requirements for public participation in regulation onto the internet. More broadly, the EGOV Act seeks to ensure that advances in information technology “provide increased opportunities for citizen participation in government.”21 EGOV also seeks to improve interagency collaboration and promote “better informed” decision-making by policy makers through the use of online tools.

In addition to this broad legislative framework, most federal agencies have developed more specific implementation guidelines. One example is the Department of Housing and Urban Development’s “Citizen Participation” guidelines for Title 24 (Community Development Block Grant, or “CDBG”) funding. This language calls for public notice, making information available-particularly to those impacted by the CDBG plan and low and moderate income residents-and “a minimum of two public hearings on the proposed plan.” While in the best circumstances these kinds of activities fulfill requirements for information sharing and comment, none are particularly promising techniques to empower citizens and build social capital or greater trust in government.22

The National Parks Service has recently issued a “Director’s Order” (DO-75A) entitled, “Civic Engagement and Public Involvement” which goes a lot further to inspire a collaborative relationship between citizens and government. Among other purposes, the DO seeks to “renew” its commitment to citizens by embracing “civic engagement as the essential foundation and framework for creating plans and developing programs.”23 While it would appear that the order is largely directed at the public planning process, educational programming, and direct preservation efforts, the effort to “institutionalize a civic engagement philosophy” and “provide a framework for successfully engaging the public” in its work may prove an opportunity for deliberative democrats to influence administrative responsibilities of the agency.

One of the real barriers to effective deliberative citizen participation, as well as generally improved performance of citizen participation programs across federal agencies, is the absence of inter-agency collaboration, knowledge-building, and knowledge-sharing across agencies. While numerous consulting firms, such as the International Association for Public Participation and Creighton and Creighton, have for years offered high quality training in the field of public participation to agencies, a tremendous amount of experience and knowledge remains within agencies or, perhaps worse, in the hands of external consultants. One gap, then, in the policy environment, is a nexus or coordinating agency for design, training, evaluation and evolution of public participation programs across federal agencies.