“Regulatory politics—the struggle for control over the administrative levers of power and policy shaped within government agencies—is central to government activity in the United States” (Harris and Milkis, 1989, in Hoefer, 2000).
When I tell students that we’re going to learn about influencing governmental decisions that affect the lives of those they serve, I know that their thoughts immediately go to legislation. That’s what we think of when we think of advocacy–everyone remembers Schoolhouse Rock, right, which ends when the bill gets signed into law? When I explain that, in fact, for social workers, the real work often just begins when new legislation is signed, their responses range from frustration to dismay to intrigue. And when they see the very powerful ways in which regulations impact their practice, they are usually convinced.
Can I sell you on the importance of regulatory politics, too? And give you some ideas for how your organization can make a difference in the rules that govern so much of our lives? As I so often say, “vamos a ver.”
What are regulations, and why are they so important?
Definition: Rules created by the legislatively designated government agency that is responsible for implementing the program/policy
Examples of powerful regulations:
1. During the Reagan Administration, rule changes in the Social Security Disability Insurance program left out many with mental illnesses by clarifying that those with dual diagnoses would have to prove that they would still be disabled if not for their substance addiction–even though most of these individuals were undeniably ‘disabled’ under the language of the federal law!
2. When TANF was still AFDC, many of the eligibility determination decisions were left to regulation, including what counted as a suitable home, what should be counted as income, and how to handle violations–the result was great variation in program administration among different jurisdictions (some of which ultimately led to Supreme Court decisions increasing standardization)
3. The REAL ID Act, passed by Congress as part of tsunami relief and imposing national standards on driver’s licenses, left the definition of lawful presence to regulations, which subsequently left out whole classes of people who are legally present in the U.S. but will now be unable to obtain a driver’s license, since they’re not ‘legal’ under these new rules!
So, since program and policy regulations matter so much, how can nonprofit advocates go about influencing them? After all, it’s not like you lobby on rules, right? Wrong!
First, you have to monitor rule-making–Much policymaking done through regulation today (because of intentional vagueness of statute, complex nature of social policy and impossibility of elected official expertise in all areas, contentious nature of some debates and desire to punt those decisions to bureaucrats)
• Eligibility guidelines (including how individuals will demonstrate eligibility, which can be key)
• Staffing requirements (levels and qualifications)
• Types of services/interventions
• Delivery mechanism and structure for oversight
• Sanctions, incentives, and relationship among key players
There is often no time limit on when rules must be promulgated (although there are often stipulations that policies cannot take effect until rules are in place)—this can be a stalling tactic on the part of elected and/or bureaucratic leaders (of course, this can work to the advantage of advocates, as well). Even when there is a time limit for when regulations must be adopted, there is often little recourse when agencies miss those deadlines (and frequent extensions of them).
Effectiveness requires working with the agency pre-publication of the draft rules (they will be loathe to make major changes after this, because it can look like backpedaling or incompetence), develop close relationships with agency personnel so that they have timely information about pending rules changes, have a history of supporting the agency’s efforts for funding/power (can be impossible in contexts of great controversy), and view executive branch lobbying as a key part of advocacy (and so, dedicate resources to this work). Politics do matter, b/c those who ultimately oversee regulations and groups’ access to the process are political appointees who will represent the viewpoints of elected officials
There are several strategies that organizations/advocates can pursue in seeking to influence the content of regulations:
1. Crafting written comments
• With federal agencies, you always have at least 30 days for your comments (may vary by state)
• Look at the originating legislation (if applicable) to determine which agency will be responsible for crafting regulations
• Preliminary rules will be published in the Federal Register, which also has instructions about to whom to send your comments, and by when
2. Public hearings (may not be held—the agency decides how to manage public input)
3. Organizing response to comment opportunity
• Build on relationships to decisionmakers
• Be seen as a source of valuable information—these are bureaucrats who mostly care about doing a good job and who want to be seen as competent
• Numbers can make a difference, especially on rule-making that was considered to be relatively low profile (also will impact later implementation, because people behave differently when they know that they are being watched)
• Important to have already engaged your constituency re: what they/you think the regulations should contain, so that you are ready to provide comment quickly (and these negotiations internally can be time-consuming and contentious)
4. Maximizing the effectiveness of your comments
• Point out areas that subvert legislative intent (if in your interest)—normally, agencies tend to view Congressional language as politically, if not legally binding (because they will have to go back to Congress to ask for more money again next year), but, where Congress is vague (sometimes intentionally) in its language, there may be differences of opinion about what was intended.
• Areas that are contradictory to existing law and/or other parts of these regulations
• Items that will be difficult or impossible to make work on the ground (especially using your practice expertise)
• Areas that are still vague or unclear
5. Responding to emergency/interim rules—you can sometimes criticize the process, not just the content, here, but the danger is that the process but not the content will change!
If only our work really was done when that bill was finished ‘sitting on capitol hill’ and ready to be signed into law. But, in real life, social workers often find themselves battling shadow legislation that has never been effectively implemented or is, in fact, being entirely ignored. This requires that advocates diagnose where the implementation breakdown is, and what went wrong. Likely Problems include:
• Ambiguity and unclear mandate
• Confusing structure with multiple ‘bosses’
• Inadequate staff skills
• Insufficient funding
• Conflict in values between administrators and policymakers
• Lack of authority to carry out some of the law
• Inertia and standard operating procedures
We then use process evaluation to systematically evaluate implementation failures (where was the policy not implemented as designed. Sometimes, what look like implementation failures really stem from flawed policies and/or problem analyses. Our relationships are, here as everywhere, so important, because internal allies can help you understand internal policy (the interpretation of regulations, allegedly to streamline operations, that often has substantive impact)—look at memoranda, personnel policies, policy handbooks, and other official documents (when these go beyond the approved regulations, they do not have the force of law and can/should be challenged).
When major changes are enacted through legislation without adequate public involvement, media may respond to charges of undemocratic maneuvering (regardless of the substance of the regulations), but you have to be careful about this if you have also (or intend to) circumvent the legislative process when it suits you. You can also use the media to solicit comments and anecdotes/data to include in comments, but will often have to pay for this type of advertisement.
If you have successfully influenced regulatory policy on behalf of your organization or constituency, what was the process like? Which strategies were most helpful to you? What was your biggest obstacle? What lessons would you share with others? If you’re facing a regulatory policy challenge today, what help do you need? Is someone at your agency dedicated to looking at the Federal Register on a regular basis to see what regulations might be on the horizon? Can you take that on? By understanding and influencing regulations, you can protect your hard-won legislative victories, seek and win changes outside the legislative cycle, and build relationships with powerful bureaucrats whose political lives often long outlast those of elected officials. It’s another front in our struggle for social justice, and we ignore it at our peril!
A chance to practice:
Scenarios for Federal Regulatory Advocacy