Tag Archives: regulatory policy

These kids need to eat: Why the connection between advocacy and direct services matters so much

On October 1, 2011, our state agency charged with administering SNAP benefits (what we used to call Food Stamps) in Kansas announced a new rule that changed the way that they calculate income for mixed-status households (where some in the household are U.S. citizens and some are ineligible nonapplicants (a technical term for immigrants who can’t receive benefits and, so, are not applying for them).

It’s kind of complicated, and it was only through the incredible patience of my good friends at the National Immigration Law Center (whose expertise and willingness to pick up the phone has saved me dozens of times over the past decade) that I understood exactly how it works, but, in essence, it’s this:

Kansas now pretends that undocumented parents don’t need to eat, so we count all of the household’s income, but only count the number of family members who are eligible for food assistance. This makes it much harder for these families to qualify for SNAP, since the eligibility thresholds are based on income per size of household. None of that was really comprehensible from the initial announcement, which had some vaguely patriotic language about restoring equity and fairness to SNAP, a reference to the term “pro-rata share”, which we’d never heard before, and all kinds of assurances that there would be ample training before the new rules went into effect.

And, then, on October 4, 2011, an extremely distraught single mother of 5 children, who had recently built a safe life for her family after years of domestic violence, showed up at El Centro, Inc. with a notice that her children’s SNAP case had been closed due to “non-citizen status.” She had no idea how she was going to feed her kids without that assistance, especially so soon after leaving her abusive husband.

The good news, in this tragic mess?

She knew where to go, not just to receive some immediate assistance–connection to a food pantry, and help getting her kids signed up for school breakfast, and information about congregate meal sites–but also for some answers about why this was happening to her, and for an ally in what she knew needed to be a fight.

And, because it’s an organization that weaves advocacy into its direct services, the social worker with whom she met that day did things a bit differently, perhaps, than would some in a similar situation.

  • She made copies of the letter, because she knew from her advocacy training that USDA prohibits adverse action against eligible beneficiaries because of a nonapplicant’s immigration status, so, at the least, the title of that letter was unacceptable.
  • She asked questions, not just about what the mother intended to do now, but about what the SNAP case worker said (and didn’t), because she knew that USDA also requires disclosure about the voluntary nature of nonapplicants’ immigration information.
  • She got permission to share the mother’s story, not just with agencies for referral purposes, but with Office of Civil Rights investigators, with the organization’s public policy consultant, and with the media. She helped the mother write out her own story and explained how sharing her struggle would connect to future advocacy efforts.
  • She organized a meeting, where mothers who had had the same experience came together, learned about the new policy, and worked together to strategize about what could be done. They made posters to tell immigrants that they are not required to disclose their status if they’re not applying for benefits, and they wrote out their own testimonies, together.
  • She asked for help, reaching out to advocates with connections to national organizations, USDA officials, U.S. senators, influential community leaders. Together, they made a plan, which now includes not only the civil rights investigations but advocacy campaigns with members of Congress, an organized media push, and exploration of possible lawsuits.
  • She utilized radical practice skills to help that first mother, and the ones who poured into her office in the days to follow, understand that, just because the new rule is allowable doesn’t make it acceptable policy. She held their hands and looked into their eyes and said that it’s wrong for our country to allow children to go hungry because we don’t like their parents, and she vowed to work alongside them to make it right.

    It’s an advocacy effort that is far from resolved; indeed, Kansas is just one of the first states to use this allowable option to apply more restrictive income-counting rules to mixed-status families, and they most certainly won’t be the last. It’s a struggle with an uncertain resolution and, in the meantime, children are hungry and mothers are desperate.

    But there are real, concrete ways in which this whole scenario is unfolding in a far more hopeful way than it could have, and it’s because of the existence of an organization that believes that direct services make advocacy more authentic and more effective, and that only advocacy and organizing can provide a context in which direct services can succeed. One serves as a vehicle through which to collect the stories, document the evidence, and mobilize those affected. The other deploys those considerable resources in a strategy designed to bring lasting change.

    Their coexistence ensures that direct services never become about placating an oppressed community, and that advocacy never forgets its reason for being.

    These kids need to eat.

Why the Executive Branch matters

I find, when I talk with nonprofit folks about advocacy, they immediately center in on legislative lobbying.

That’s what we think of when we think about advocacy and policy change, because it’s the most visible (and vocal) arena for advocacy activities.

And it’s important. And, of course, legal, for nonprofit organizations as a part of our operations and our engagement in creating the world as it should be.

But it’s not enough.

Nonprofit organizations can get a lot done through regulatory change, agency monitoring, and pressure on the executive branch, and it can often be done more quietly, with less risk to the organization and comparatively less time investment. You’ve got fewer targets, with this kind of strategy, so your change can be leveraged through a tighter set of relationships, and executive branch officials are, for the most part, committed professionals with considerable issue expertise in their particular field who are responsive to fact-based arguments about efficacy and efficiency, in ways that elected officials are, well, not always.

But, sometimes, especially when legislative avenues are closed off for political or technical reasons, executive branch actions become just as high-stakes as legislative ones. And just as contentious.

And, even someone like me, who thought that I had a pretty broad vision of what advocacy is and can be and should be, learns a lot in those battles about the importance of having an executive branch strategy from the beginning, and of investing just as much in developing it as in planning out a legislative approach.

Today’s battles over immigration reform are, unfortunately, a good example of this. In the next two years, (warning: intentionally understated prognosis ahead) very little is likely to happen in Congress on immigration reform. There will be litigation, especially as states continue to forge ahead with ill-advised schemes that seem destined to accomplish little but line the pockets of Kris Kobach and other Federation for American Immigration Reform lawyers who try to help states defend indefensibly unconstitutional provisions. But there will be precious little legislation, and probably not even that many half-hearted efforts to fake it, since the debates are politically costly and failure almost assured.

But much can happen, and, indeed, must happen within the realm of executive action, both to stem the harm wrought on immigrant communities today and, at the same time, to keep advocates engaged and focused and ready, so that we don’t suffer the kind of entropy that could undo our next great chance at success.

Too often, we’re guilty of excusing executive inaction on major policy challenges, of even marginalizing an office as important as the President of the United States, pretending that all that executive officials can or should be expected to do is exhort the legislative body, make speeches, and encourage advocates to continue the fight. Some pro-immigrant groups, and immigrants themselves, have done some critically important work over the past several months to highlight the weakness and ultimate tragedy of this approach, pushing instead for tangible action on issues fully within the range of executive authority: easing employer sanctions enforcement (and ending workplace raids), improving detention conditions, exercising discretion in dealing with cases of immigrant young adults, shifting budgets to workable approaches, improving processing times for those eligible for immigration relief.

And they’re winning some important victories, gains which are far more than just symbolic but, indeed, will make the kinds of tangible improvements in people’s lives that advocacy is all about, especially the announcement this spring that the Obama Administration will effectively cease deporting undocumented college students because, um, can you think of a bigger waste of financial resources and human potential?

If we are successful in pushing the executive branch on more of these real gains, it will mean not only reduced suffering in communities around the country, as well as sharpened advocacy skills (that we can then unleash on legislative targets), but also an opportunity to “test” limited versions, so to speak, of certain policy changes that we will ultimately need to push in Congress: we need a chance to prove that the sky won’t fall down if we stop deporting immigrant mothers, as obvious as that case may seem.

What within your policy “wish list” could be accomplished through executive action? How can your legislative advocacy skills translate to that context? What do you need to start doing differently, in your advocacy work, to make this shift? How could executive branch gains spill over into your legislative work?

Software code as regulatory advocacy

Even with as much reading and thinking as I do about social work, social problems, and social change, there’s still something, every couple months or so, that completely blows my mind.

I love it when I come across something that makes me think, “of course!”

And, when it intersects with regulatory policy and advocacy…well, that’s just about perfect.

An essay by Gene Koo in Rebooting America brought together just such a trifecta. He writes about the increasing ubiquity of software code as a controlling influence in the implementation of social policy, and of the associated technical and political challenges in ensuring that computers don’t literally take over human judgment in critical areas of social welfare.

When you start to think about it, there are so many ways in which software is replacing the decision making even of powerful legislative and regulatory actors. Computer programs determine eligibility for public benefits, process appeals, and calculate compliance with program guidelines. Those functions are important for the overall functioning of a policy and, in the lives of an individual or family, they can be monumental.

Koo’s points about the ways in which software code shapes policy implementation mirror discussions elsewhere about the significance of regulations as the place where a policy’s intentions are translated into actual operations.

As with those rules, software code can reflect routine errors (the easiest thing to fix!) or, more perniciously, the development of what is called “codelaw” can, while not directly contradicting the law, reflect a particular implementation that isn’t the only way to construe the law. It’s in this case that software code essentially makes law, and it’s here that the same kinds of advocacy strategies we apply to the regulatory context–pointing out contradiction to legislative intent, illustrating pragmatic implementation hurdles, demonstrating the potential for inconsistent impact, and mobilizing key political and technical stakeholders–can make a real difference.

Koo’s discussion parallels that on this blog and elsewhere about the proper place for discretion in social policy. While software code can eliminate dangerously capricious decisions, which can be good governance, it also takes away the ability for trained personnel to include compassion in their way of carrying out legal mandates. This is the same tradeoff we contemplate with debates about how precisely to draw regulatory guidelines, too. Here, though, even more than with bureaucratic regulators, we’re trusting the critical task of “filling in the gaps” not to trained government employees, mostly committed to the programs they oversee, but to software developers, who, while technically expert, often have no substantive knowledge of the law nor accountability to the general public.

Kind of scary, really, especially since, while I can recognize a problematic regulation when I see it, I have no such dexterity when looking behind the curtain of a software program.

The strategies that Koo suggests for working within this new reality of “codelaw” also parallel those that work within the regulatory context. We should have a sort of “notice and comment period” when people can submit potentially tricky cases and see how the software code handles them, and our campaigns should identify software experts who can lend their expertise at this phase (a perfect opportunity for crowdsourcing!). He also recommends resisting the “baby and bathwater” reaction; we must recognize the potential to use software to ameliorate failings such as racism and sexism, which have certainly been endemic results of human judgment and discretion within our welfare systems.

Like so many of the new technological applications in the field of social work, then, the rise of codelaw is here to stay, so our challenge is to figure out how to make it work for us, and how to work within this framework to protect our legislative gains (and lessen the sting of our losses!), build relationships with those in power, and enhance the power of our constituencies.

Even when that means a string of characters is our advocacy target.

Where have you encountered “codelaw” in social policy? How have you worked, successfully or not, to advocate for kinder, gentler, software systems in these areas? What lessons have you learned in that advocacy?

Crowdsourcing our government?

Of all of the essays from Rebooting America that captured my attention, it was probably the one from Beth Simone Noveck, about completely envisioning a new style of citizen participation in governance and decision-making, that most captured my imagination.

She starts with an acknowledgement of a lament close to my own heart, that deliberative conversations seldom connect to action, which can mean that they’re even worse than non-participation, because they give people the feeling of having a stake, when they really do not. She calls them “one-off affairs, not tied to governmental practices of agenda-setting, policy-drafting and decision-making.”

And she’s right.

But we know that officials don’t need to be sole decision makers, that, in fact, we’d come up with better policy solutions, and better paths to implementation, if more voices were included, in meaningful ways, in that process.

And that’s when Noveck’s essay gets really interesting. She lays out a practical framework for micro-participation, of sorts, that would allow the public, writ large, real involvement in government decisions, in such a commonsense, pragmatic way that it’s really hard to find much objection.

Don’t think about other experiences in “participation” that you may have had–she’s not thinking roundtables with colored dots, or advisory councils galore. She points out that we don’t need large numbers of people to work on issues and that, in reality, relatively few government officials make many very important policy decisions today. And she’s not talking about some high-tech public comment or voting system on every piece of legislation, either. At least to begin, she focuses on regulatory action as policymaking, and envisions a mechanism of crowdsourcing in which a few dozen experts and enthusiasts would handle these regulatory issues by providing their consultation in the ‘action stage’ of governing.

There’s certainly no reason to think that these lay experts couldn’t craft regulatory policy as well as the current bureaucrats do, and involving the 5 or 10 or 100 people who know best, a percentage of whom will want to contribute to solving community problems, would not be an insurmountable technical or logistical challenge, either, especially in light of today’s technology.

She makes a compelling case, too, that such a system would be no more prone to corruption than current practice, and that the openness and transparency that would come more naturally to such a participatory model would, most likely, serve as a deterrent to corruption.

I love this idea.

I’ve met dozens of social work students and practitioners whose passion is something relatively obscure–rules about when foster care providers can also serve as foster families, for example, or restrictions on voting rights for those with mental illness, or reimbursable services for Medicaid recipients struggling with post-partum mood disorders.

I WANT these individuals engaged in policymaking, directly, on these topics. They know them, and they care about them, and they would do a better job than I would, or than an elected official balancing hundreds of different policy issues, none of which dovetail very well with the above.

But even more importantly than the substantive policies that could emanate from such a system are the skills and competencies that participants in such a crowd would develop, skills that would enable them to not only advocate more effectively in disparate topics, but also to leverage their voices and relationships in the legislative policy realm, too.

I agree with Noveck that it’s time to move participation beyond talking. Our government would be better off, and so would our citizenry. If you’re intrigued, check out the Democracy Design Workshop, a “do tank” oriented around projects that seek to build such tools. There’s an awesome e-rulemaking interface to improve public participation in federal regulatory policymaking, a policy wiki for collaborative legislative drafting, and ‘clickable statutes’, which creates interactive diagrams to help lay people better understand legislation.

Government by the people…maybe it really is possible?

Forgotten Victims: Immigrant Kids and ICE-cold Actions

He didn't let cameras in when he met with the New Bedford families, but we'll never forget

Saturday is International Children’s Day, so declared by the United Nations in 1954. And, so, it seemed like a good time to draw attention to the terrible consequences of harsh Immigration and Customs Enforcement (ICE) raids and other activities on children, both immigrants and U.S. citizens, who are caught up in our nation’s rush to criminalization.

The Urban Institute has released several reports on the impact of high-profile ICE raids on immigrant kids and on recommendations for how to protect families and children in the conduct of immigration enforcement (hint: it means not whisking away mommies and daddies!). And, while the specific cases referenced were not workplace raids, there has even been an Inter-American Commission on Human Rights decision that U.S. deportation policies violate citizen children’s basic human rights.

This is one of those issues that, despite my years of work on immigrant rights and social justice, I didn’t really “get” until after I became a mom. I mean, did I always think that it was absolutely horrible, the way that a parent could leave for work in the morning and then never come home? Yes. Did I always cry when I heard the story about the woman who was frantic after being arrested on her way to take some food to her husband at work, because she had a baby at home who had never taken a bottle before? Absolutely.

But it wasn’t until my son was born that I could really begin to understand, at least a tiny bit, what some of these parents go through: cross the border illegally so my child had enough to eat? I’d do that. And if someone pulled me away from my child, treating me like a criminal for simply trying to provide a better life for him? It literally gives me nightmares; my stomach hurts when he cries when I have to drop him off at school.

And, so, this mom thinks that this has to stop. That we can’t talk about “workplace enforcement” anymore as though it was some benign policy, the most rational thing in the world, instead of what it really is: a decision to rip families apart and ruin children’s lives in an afternoon. And we can’t conclude that it’s anything other than what it really is: unconscionable.

Among the key findings of this longitudinal study examining how children fare in the aftermath of workplace raids that involved their parents:

  • Families fall apart–in some cases, children went to the parents’ country of origin, while in others they stayed in the U.S. with other family members.
  • Families suffer economically–these parents aren’t just caregivers, they’re wage-earners, too. Children suffer housing instability and food insecurity after parents are detained.
  • Children’s behavior and mental well-being are dramatically compromised–the study finds evidence of sleeping and eating changes, anger, frequent crying, clinging, and withdrawing. These deterioriations were even more pronounced, actually, in kids whose parents were arrested at home. All of these children are expressing their extreme distress in whatever way they know how, and we know that they, and we, will pay the price for years.
  • Communities and institutions, particularly schools, responded well, but their capacity is inadequate: immigrant children experienced a compassionate response in all of the communities studied in this report, which, to me, suggests the obvious: The American people abhor this kind of heavy-handed, indiscriminate enforcement and decry its effects on kids in their communities.

    Obviously, we need Congress to get the message that we need comprehensive immigration reform. These parents, and their children, wouldn’t be vulnerable to deportation and its collateral damages if they had the legal status that CIR would afford.

    In the meantime, ICE needs to operate under a regulatory mandate to focus, first, on removing criminals who also happen to be non-citizens, an enforcement strategy that is in all of our interests (and one that could use some additional attention; I know it’s easier to rack up arrests if you’re going after nursing moms rather than hardened criminals, but if you want to call yourself ICE, you’ve got to be tough, right?).

    And, second, we need an enforcement strategy that recognizes that these high-profile raids have all targeted the workers, not the employers, sending the message that we care more about, well, sending messages, than we do about getting employers to follow immigration law.

    If we’re going to try to enforce these broken laws, we’d better find out some higher-impact, more targeted ways to do it.

    And, above all, as the debate rages about immigration policy and how to proceed, we’ve got to agree on one core truth:

    First, we’ve got to get kids off the battlefield.

  • Guest post: adventures in regulatory policy

    Photo credit, The Pregnancy & Postpartum Resource Center

    Too often, we equate “advocacy” with “lobbying” and, so, overlook all of the changes that we can achieve through other means, by focusing on other types of decision makers.

    I’ve learned through teaching and my own advocacy that stories are particularly potent tools for inspiring us to act, so today’s post tells the story of some advocates for women’s health care who took an unexpected route to their desired social change. Along the way, they learned how to navigate a specific regulatory environment, added new skills to their advocacy repertoire, and, perhaps most importantly, moved closer to a significant advance in women’s health care.

    To craft this post, I interviewed Jen Stoll, one of my rock-star former students who has been featured here before. I’m not quick enough to get everything she said word for word, so these are paraphrases, not direct quotations, but she has verified that they are accurate reflections of our conversation and of her experience.

    I want to hear from others (and Jen does, too!) who have used regulations to change social systems and improve people’s lives, too. How do your skills transfer between legislative and regulatory advocacy? What learning do you want to share?

    ML: How did you define the problem you wanted to tackle?
    JS: As a doula, I experienced first-hand the frustrations of not being able to work with clients who were Medicaid recipients unless I volunteered–Medicaid would not reimburse for doula services, even though there is compelling evidence that doula-assisted births are less expensive and less potentially traumatic for women. Women I met who were Medicaid recipients were upset because they often didn’t understand their options and disappointed because they didn’t have the births they expected. I started to talk with other doulas in my network about this, connecting this policy to poorer birth outcomes for some low-income women. One doula told me that Minnesota had passed legislation that directed Medicaid to reimburse for doula services, so it started to seem like a wider policy change would be possible.

    ML: So, if Minnesota had achieved this change legislatively, what made you start with regulatory advocacy?
    JS: We actually didn’t start out with that intent. We knew that we needed to know more about how Centers for Medicaid and Medicare Services (CMS) viewed doulas, and what they knew about the impact of Medicaid policy on women who give birth. I serve on a committee through Doulas of North America focused on this issue, and we divided up a list of dozens of contacts, at various levels in the Medicaid system, to start conversations with regulators. A friend who works with Medicare also gave me some contacts to guide this work. We started to make cold calls, telling a story of a client who gave birth attended by a doula. The story wove together the narrative of better outcomes with some persuasive data on cost savings. We were all calling independently, but we shared the same objectives: to educate and to listen.

    ML: So how did an informational campaign result in actual regulatory change?
    JS: Every person with whom we spoke was responsive. It was really quite amazing; we also have some campaigns underway with private insurance companies, but we’re not making nearly as much headway with them. With CMS, every message we left was returned, and everyone listened and asked questions. Still, we never found someone who could, or would, answer our question about what the process would be to achieve this change. No one ever said, “oh, that’s my job.” So we just kept calling.

    ML: And then?
    JS: And then, one day, the committee received a letter from CMS stating that doulas had been issued a provider number (we didn’t know that that was what we should have been asking for). We still don’t know whose advocacy really made that happen. It seems like we kind of created a drumbeat for change, and that our persistence paid off, in finally conveying the necessary information to someone(s) with the authority to take action.

    ML: So what now?
    JS: Now we’re initiating the next step. States have to take action to require their Medicaid programs to reimburse doulas, and each state has a different process for that decision. In Kansas, it wouldn’t take legislative change, but we’re starting with some states with greater doula representation where, like Minnesota, the legislature will need to act. Simultaneously, we’re educating doula providers on why they should apply for Medicaid provider status, and how to proceed with that application.

    ML: What lessons did you learn from this regulatory advocacy that you want to share?
    JS: First, you really don’t need to know that much. We made the progress we did by asking lots of questions. Regulators are experts in their field, and, for the most part, they want to share what they know. Second, stick with it. Many of these regulatory agencies are complex by design, and they certainly don’t make it easy to navigate through for the information you need. We figured that, since we were taking shots in the dark, we should shoot wide and long! Third, change can happen in unexpected ways and, while you can’t always be prepared for this, you do need to be able to pivot to the next step quickly. And, finally, ask for more than you might expect to get. Regulators care about the programs they administer, and we had very different conversations about the health care of low-income women than we could expect to have in more politicized contexts. That can create openings for change beyond your expectations.

    *************
    I know that Jen would be happy to answer your questions about this process, or her ongoing work. And, regulators, if there are any reading, you can be anonymous–how do you like to be approached by advocates, and what is most persuasive to you, in terms of tactics?

    Another lesson in policy implementation

    So I’m actually one of those people who really doesn’t mind saying, “I told you so.” I mean, sometimes, I did. Right?

    And this is one of those times, albeit with an example that is even more dramatic than I could have dreamed up. Mental note to work this into next fall’s lectures on how the policy analysis/advocacy processes don’t end with the passage of legislation, the signing of an executive order, or the issuance of a judicial decree.

    I recently read the book Methland. Not a good book to read before bed–does anyone else have an irrational fear of somehow, accidentally, becoming addicted to methamphetamine? Um, me neither.

    So there is a whole bunch of stuff in here that’s worth talking about, primarily the author’s really profound linkage between the collapse of American agriculture, pursuant to degregulation and deunionization of the meatpacking industry and the rise of the agricultural megaconglomerate, and the move of meth into the void created in small towns across the American Midwest. A welcome change from the “people in small towns don’t have anything else to do” rationale for meth’s popularity, a glaringly inaccurate, stereotypical, and completely unhelpful attribution popularized in much of the media, and even state policy, discourse about the scourge of meth addiction.

    But, this post isn’t about any of that, although I’d love to find a way to work that into the class I teach on global poverty, since we talk about the impact on the developing world of those same agricultural trends. It’s all about connections, people…

    But the page that I marked in this book was towards the end, in the discussion of the Combat Meth Act. Good, strong title, bipartisan congressional support=concerted effort to provide the resources to really “combat meth”, right?

    Wrong.

    While the actual language of the bill was weakened somewhat after strong lobbying by the retain chain store industry (can’t get between people and their Sudafed, here), the industry understood what we, as social justice advocates, sometimes forget: it’s not even as important what’s in the legislation as what will control how the legislation is actually implemented.

    So, while anti-meth advocates were upset by the exclusion of “stop buy” language in the bill (which would have stopped further purchases of the components of meth in the event of excessive buys), they still largely celebrated passage of the bill.

    And then they realized that the legislation would allow states to permit pharmacies in those same chain stores to rely on handwritten logs of cold medicine sales instead of computerized systems that could communicate in real-time, help law enforcement to detect patterns, and, hopefully, actually combat meth, by reducing access to its ingredients, rather than trying to deal with the tragic human consequences later. As one of the champions of the anti-meth campaign said, “here we are, the most technologically advanced nation in history, and we have thousands of people writing hundreds of thousands of names in notebooks. We pass a law, and then we basically tell these huge companies that they’re not responsible for complying. It’s stunning” (p. 241).

    And, unfortunately, totally unsurprising.

    Rather than just bemoan this fairly predictable turn of events, we need to take this lesson as a challenge, and redouble our commitment to pay attention to the details–what are the consequences for failure to comply? What kinds of resources are put into monitoring? How will we build accountability in? WHO has ultimate responsibility for this accountability? To whom do we turn if we don’t feel that the policy is being followed?

    We can’t allow ourselves to be beat by these back-door, hollow ‘victories’. Taking to heart this lesson of implementation, we can ensure that our hard advocacy work isn’t for naught. Take a cue from our adversaries: seal the deal.

    You want me to read WHAT? Why social workers need to care about the Federal Register

    “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
    • Definitions!
    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