6. CROWDLAW | WHY PUBLIC ENGAGEMENT? NORMATIVE GOALS

This section explains the varied value propositions for public engagement and connects them to their origins in various strands of political theory.

This is a draft version of the report (dated October 12, 2017) and will be updated in November.

While this paper is primarily concerned with how best to implement crowdlaw, as a threshold matter it is important to define why public engagement is something worth pursuing. Although government of, by, and for the people might seem self-evident, there are in fact multiple rationales for engagement in governing. A clear purpose is a precondition for designing both process and platform to achieve it.

A full review of the vast scholarly literature on engagement is beyond the scope of this paper, but it is nonetheless worth briefly discussing the dominant theories that undergird and justify public engagement. Specifically, we identify four distinct schools of thought regarding the potential benefits of public participation. The first three are the most often cited thus resulting in platforms and processes designed to optimize deliberation. Central to our argument is that crowdlaw practices have to improve the quality of legislation if they are to be efficiently used and adopted at scale. Thus, the fourth rationale, as we shall see, is arguably the most important.

● Improving civic literacy and democratic legitimacy by giving more people a voice in the process,

● Strengthening social capital and social cohesion and reducing partisanship,

● Improving democratic accountability by making governing more transparent,

● And, generating more effective governance by introducing more diverse ideas and insights from a distributed audience into governing.

The desired goal dictates the design of the platform and process. Each goal is described in brief in the following sections.

1. Improving civic literacy¹

Democratic legitimacy refers to the idea that the outcomes of a political order are justified to those who live within it. Because the public perception of governmental institutions as legitimate depends, to some extent, on the belief that those institutions are acting for the greater good and not unduly out of concern for the interests either of the political elites or one segment of society, ensuring that decision-making is transparent and provides equal opportunity for the public to make their voices heard and can increase a government’s perceived legitimacy.

Thus, the purpose of engagement is not directly to change the ultimate outcome of decisions but, rather — through the promotion of public discourse — to create an opportunity for the formation and refinement of public opinion. Best known among the theorists and practitioners of this Habermasian style of deliberative democracy, Stanford professor James Fishkin contends that deliberation can reassure the general public that political outcomes are a reflection of the people’s political will. Fishkin tested his hypothesis through “deliberative polling,” a process that combines attributes of both polling and debate by “exposing random samples [of people] to balanced information, encouraging them to weigh opposing arguments in discussion with heterogeneous interlocutors, and then harvesting their more considered opinions.”² His design and analysis of multiple deliberative polling experiments found that participants not only changed their opinions as a result of partaking in the deliberative process, but also shifted the bases of their opinions to more “normatively desirable criteria.” Similarly, John Gastil’s analysis of the participants in the National Issues Forum, another deliberation method practiced since the early 1980s, showed that those who attended the program left with more sophisticated and coherent views of the issues that were discussed. Amy Gutmann and Dennis Thompson, in turn, argue that this increased knowledge of important issues strengthens faith in and perceived legitimacy of political institutions because citizens feel as though they can both contribute to and understand complex policy choices. Jürgen Habermas argues that deliberative democracy and an “energetic civil society” can restore the “public sphere” to its former status as a forum for meaningful dialogue between citizens, augmenting the flow of information in a political process currently dominated by mass media.

2. Strengthening social fabric

A second and related school of thought identifies the role that public engagement plays in civic and community life in addition to the political process. Robert Putnam’s analysis of “social capital” — “[b]roadly understood as referring to the community relations that affect personal interactions”³ — has shown that such engagement positively contributes to a host of social outcomes, including public health and safety, educational attainment, greater wealth, and of course, trust in government institutions. In communities where social capital is low, then, introducing new opportunities for deliberation can help strengthen otherwise weak communal ties, an appealing prospect in communities riven by partisanship or class divides. Finally, Clare Chambers at Cambridge argues that deliberation can help diminish adversarial tendencies within a community and instead help foster a sense of interdependence. The act of deliberation can thus help instill feelings of familiarity and strengthen social bonds within a community, an outcome that has positive effects both on communal life as well as the political process. Digital deliberation, even more than offline deliberation, quickly produces and disseminates data regarding citizen preferences, often in real-time.⁴

3. Making government more accountable

Engagement also plays a vital role in holding governments accountable, because the transparency necessary to enable the public to participate, in theory, reduces the risk of dirty tricks and backroom dealing. Traditionally, investigative journalism serves as this “instrument of institutional accountability, a means to hold the governors accountable… to the ideals and rules of the democratic polity itself.”⁵ Government watchdog groups also play a vital role in distilling complex information for other civil society and journalistic organizations. These watchdogs, referred to by Walter Lipmann as “political observatories,” can exist both inside and outside the government, and engage with the public by “sponsor[ing] research, monitor[ing] governmental activity, and, as nonpartisan or as advocacy organizations, mak[ing] information about the political world available to journalists and directly to citizens.”⁶

But crowdlaw, by involving the public more directly in legislating, can foster transparency, which, in turn begets accountability. Michael Schudson argues that “[s]o long as information is publicly available, political actors have to behave as if someone in the public is paying attention.”⁷ Public engagement efforts that involve promoting accessible government information, as well as the organizations that make that information actionable, can thus help promote increased government accountability.

4. Improving governance

A fourth school of thought focuses on the potential impact new forms of civic engagement can have on the outcomes of governance. Beth Simone Noveck has written extensively on the ways in which public engagement can be leveraged to improve the quality of policy outcomes as well as the operation of government, with particular focus given to the role that technology can play in both generating and scaling civic participation.⁸ Noveck’s call for “collaborative democracy” moves beyond deliberative theorists’ focus on discourse. Instead, collaborative democracy involves shifting at least some or even all of the decisionmaking and implementation authority into the hands of citizen participants: rather than limit citizens’ involvement to mere deliberation, citizens should instead be afforded the opportunity to collaborate on designing and building actual solutions to important problems. This collaborative model enables governments to draw directly on the collective expertise of the population in developing new and creative solutions, as opposed to presenting citizens with a discrete set of choices. It is a theory rooted in the belief that engagement is not simply a more legitimate process. Rather, if designed right, engagement should lead to high quality policies and better designed services.

From theory to practice

It bears explicit mention that many, if not most, engagement platforms to date have been designed to advance democratic legitimacy through deliberation rather than to improve governing outcomes. Thus many such digital democracy systems “inherit” the challenges and considerations of offline public engagement, namely bad design, partisan bickering, and, above all, irrelevance to governing.⁹ In a vicious circle, platforms designed for deliberation but not necessarily to improve governance end up having little impact on the decisions or operations of institutions, diminishing relevance and depressing the incentive to engage on the part of both individuals and institutions.

In their meta-research, Dennis Friess and Christiane Eilders note that the majority of research into online engagement focuses on the effects of specific platform design on the individual (i.e., how the design affects the participation process: design-process).¹⁰ However, they argue, there are relatively few studies that assess “how the process of deliberation shapes the outcomes of deliberation (process-results),” and fewer still that analyze all aspects of digital participation (i.e., from input, to deliberation, to output; design-process-results).¹¹ Echoing Friess and Eilders, Tiago Peixoto and Jonathan Fox point out that “while growing media coverage of ICT-enabled voice platforms is often enthusiastic, social science research on the dynamics and impacts of these initiatives lags far behind, and the limited existing evidence does not yet support unqualified optimism.”¹² They argue that limited research has focused on tracing citizen inputs to legislative outputs, so there is no clear evidence as to whether these online systems have “teeth,” other than in their ability to support government transparency.¹³

That said, there are many advantages to online engagement that might be enhanced with better design and greater integration into political and governance practices. Capella, Price, and Nir find, for instance, “that participation in online discussion is likely to produce a greater repertoire of argument, including greater awareness of the reasons behind opposing views.”¹⁴ Furthermore, Davies et al. highlight the benefits of “asynchronous communication,” which affords participants the opportunity to contribute to the discussion at the time that suits them best, thereby reducing barriers to entry and promoting more inclusive and diverse dialogue.¹⁵ Janssen and Kies provide further support for asynchronous communication as a process that yields more thoughtful contributions (as opposed to instantaneous communication via chat rooms, where conversation is more likely to become derailed).¹⁶ ICT-enabled public engagement “reduces the costs of participation by tapping into existing technology, reducing the need to be present at fixed times, (or) incur venue costs both for the citizens and the intervention.”¹⁷

As we move from theory to practice, our recommendations for both legal framework and platform design explicitly seek to advance the use of public engagement to improve governing as a primary goal. Recognizing that others might have different objectives in mind or may not be confident in the ability to leverage engagement to improve outcomes, we recommend public discussion and debate about the purposes of engagement and the tradeoffs that come when designing for one goal over another.

For additional resources on both the theory and practice of engagement, please see the bibliography in Appendix V. The bibliography focuses on engagement in lawmaking and includes some additional general resources as well.

- Gabriella Capone and Beth Noveck