Personal Democracy Forum ramp-up: adaptive legislation can respond to action in the agora

This article is the last in a series leading up to the

Personal Democracy Forum
first article
was posted on June 16
and the
second article
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

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

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

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.

The executive branch: power and potency

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.

The legislative branch: how to write laws for an engaged public

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

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


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

Appendix: the top question asked on

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 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

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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