Law and Public Policy

Kevin J. Fandl

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351243070
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Public Policy
• Index: Politics & International Relations

Laws exist to incentivize us to act in a certain manner, in accordance with the policies that our community has deemed right for us. And when we disagree with those laws, we must re-examine our policies, and thus our beliefs and ideas, to decide whether our community has changed. This is a book about law and public policy—about the ideas and the rules we build to implement those rules. While similar books have looked at public policy and public administration in an effort to explain how the government works, and others have considered the foundations of the legal system to understand the rulemaking institutions, this book takes a different approach. In this ground-breaking new textbook, author Kevin Fandl develops a complete picture of society, from idea to action -- by examining laws through the lens of policy, and vice versa. This holistic approach gives readers a chance to see not only why certain rules exist, but how those rules evolved over time and the events that inspired them. It offers readers an opportunity not only to see but also to participate in the process of forming the structures that shape our society.

This textbook is divided into two sections. The first section provides readers with the tools that they will need to digest the policies and laws that surround them. These tools include a historical deep dive into the foundations of the governance structure in the United States and beyond, an important examination of civics and a reminder of the importance of engaging in the policymaking process, a careful breakdown of the institutions that form the backbone of the law and policy-making institutions in the United States, and finally critical thinking including practical tools to find reliable sources for news, research, and other types of information. The second section of the text is comprised of subject-matter analyses. These subject-based chapters, written by experts on the topic at hand begin with a historical perspective, followed by a careful examination of the key policies and laws that inform that field. Each chapter highlights key vocabulary, provides practical vignettes to add context to the writing, explores a unique global component to compare perspectives from communities worldwide, and includes a number of discussion questions and recommended readings for further examination. This textbook is tailored specifically for undergraduate and graduate students of public policy, to introduce them to the role of law and legal institutions as facilitators and constraints on public policy, exploring those laws in a range of relevant policy contexts with the help of short case studies.

1
A Historic Introduction to Law and Public Policy

Introduction

Welcome to the study of law and public policy. You are about to embark on an exciting and highly practical learning experience that includes historical precedents, controversial cases, and current events that touch on this field. The field itself is a relatively new addition to many academic programs, though the ideas behind it have been around since ancient Rome. In this text, while we will certainly pay homage to those important roots, our focus will be on understanding the real-life implications of policies, laws, and cases that impact our lives.

The book is laid out in two substantive parts. The first part (Chapters 1–4) provides you with many of the tools that you will need to properly analyze laws and policies and apply a critical eye to that analysis. In this first part, we will discuss the theories of public policy, the relevant actors in the law and policy environment, the practice of governance, and tools to effectively analyze the actions of policymakers. In the second part (Chapters 5–11), we will focus on specific subject areas, such as economic policy and foreign policy, in order to better understand how the law and policy environments work together to create the rules and norms that guide individuals and businesses both domestically and abroad. Each of these chapters includes a number of case excerpts, real-world examples provided by expert practitioners, and enough background to give you a comprehensive understanding of why today’s policies and laws are what they are. The purpose of part two of the book is to show you how laws and policies interact with our lives directly.

The goal of this book, the first of its kind, is to tie together concepts that are directly related but often overlooked, and to expose readers to the foundations that form the modern policy environment so that they can make better decisions about those policies for the future. The lessons in the following pages can be applied easily in a number of disciplines, from business to law to social science, as law and policy guide nearly every aspect of our lives and work. Failing to see and understand the interconnections between law and policy will undoubtedly lead to short-sighted and uninformed decision-making, which creates a harmful policy environment for all of us.

The Historical Antecedents to Public Policy

The Gilded Age

To the Victor belong the Spoils.¹

The United States federal government that we know today is far different from how it was originally operated—and perhaps from how it was originally intended. Today’s professional cadre of government officials working alongside a limited number of political appointees gives our government a steady balance of historic expertise and routine adjustments of focus. Yet many of us take for granted the distinction between the career civil service and the political appointments process. The former consists of the thousands of government workers that applied for positions with particular government agencies, competed against others for those positions, and expect to hold those positions for an extended period of time. These career civil servants acquire expertise and know-how about their agency and its mission, and they usually have an interest in seeing that agency do good work.

A political appointee, on the other hand, is not usually someone who applied to work in a particular government agency, not usually someone with extensive experience in that sector, and not someone who intends to remain in the position they receive beyond the term of their appointment. These workers are donors to or friends of the incoming President or are otherwise recommended to the President as individuals who will carry forth the policy beliefs of that President. There are roughly 4,000 political appointees at any given time, about 1,400 of them serving as low-level Schedule-C appointees who work as policy advisors to the agency, guiding agency decisions to align with the beliefs of the administration.

This is not always how government has worked. In the beginning of the United States’ democracy, elected officials were able to effectively replace the entire cadre of government workers with their own appointees. An incoming administration could effectively start over with his own staff across the entire federal government, which was small at the outset but quickly expanding in number. This turnover could have the effect of destroying the knowledge and experience that the existing employees had developed and would require agencies to start from scratch in putting together new policies. This was known as the spoils system.

Early administrations did not take advantage of this spoils system to an unethical degree. It was not until the administration of President Andrew Jackson in 1829 that we see the fundamental flaw in allowing a president to upset the system of governance. Jackson rotated approximately 20% of the existing government workforce out and replaced them with his own appointees. Most of those appointments went to those who helped Jackson accede to the presidency. As he himself said, “to the victor belong the spoils.” Public outcry over these appointments and the resulting failures of government led to a push for reform.

The spoils system applied by President Jackson was no longer popular policy. However, the ability of an incoming President to place his or her supporters in key positions allowed that executive to more effectively carry out their policies through executive agencies that they relied upon. Completely eliminating such a system would have created conflict between the executive and his or her agencies, which would have placed a wedge between the President and civil servants who may have had competing interests. Allowing the President to appoint the heads of these agencies ensured that his or her priority policies were conveyed, even if ultimately they were not implemented completely by career civil servants.

The Civil Service Act of 1883, commonly known as the Pendleton Act, was an attempt by Congress to achieve a balanced policy that recognized the need for a president to appoint individuals that he or she trusted to carry out their policy ideas with the need to maintain a robust civil service sector that would maintain a consistent approach to governance.² Similar reforms had been happening already at the city level, but civil service reform became a federal matter following the assassination of President James Garfield in 1881 by a supporter who believed that he was owed a position in government in exchange for the help he had provided during the campaign. The Pendleton Act was passed by Congress in 1883.

The Pendleton Civil Service Reform Act was the beginning of the administrative state as we understand it today. Among other things, the Act established a commission responsible for developing merit-based rules for incoming government employees. They were empowered to develop a testing system that would rank candidates based upon their knowledge and skills, rather than their connections or political donations. Following the ranking of candidates under this new “competitive service” examination, conditional job offers would be made whereby the employee had to perform well in order to be converted to a permanent civil servant.

The creation of the civil service system kicked off an era of more effective governance and less politicized administration. Long-term strategies for growth could be put in place as policies outlasted administrations. This paved the way for what has been dubbed the progressive era in U.S. history, which fueled a new perception of public policy.

Progressive era—period of social activism and political reform from the 1890s through the late 1920s.

The Progressive Era

The U.S. federal government of the 19th century was small and relatively weak. Those who were elected often became corrupted by a system that encouraged longevity at the expense of policy. Organizations of elected officials, known as political machines, saw their role as giving favors to connected businesses and individuals in exchange for ongoing patronage, which allowed them to keep their political positions. Elected office became a matter of power rather than policy, leading to a mob-like environment in many major cities.

Political machines—small group of political supporters and businesses led by a single boss or small autocratic group.

This situation changed with civil service reforms of the late 19th century and the election of progressive politicians who were determined to stamp out political machines and the policies they purveyed. A new era had begun with the turn of the 20th century, one in which public demands for government reform grew louder and a shared goal of modernization of civil society came into focus.

Much like social media has dramatically influenced the elections of Presidents Obama and Trump, and will likely affect most future administrations, the rise of mass media—namely, magazines—and the use of investigative journalism known as muckraking, helped to bring concerns about corruption, anti-competition, and ineffective governance to the forefront of the voters’ agenda. One of the prime examples of this effort involves the meatpacking industry and appeared in a series of articles by Upton Sinclair in 1906:

Muckraking—searching for and publishing scandalous information about people.

[Excerpts From Upton Sinclair’s “The Jungle”]

Promptly at seven the next morning Jurgis reported for work. He came to the door that had been pointed out to him, and there he waited for nearly two hours. The boss had meant for him to enter, but had not said this, and so it was only when on his way out to hire another man that he came upon Jurgis. He gave him a good cursing, but as Jurgis did not understand a word of it he did not object. He followed the boss, who showed him where to put his street clothes, and waited while he donned the working clothes he had bought in a secondhand shop and brought with him in a bundle; then he led him to the “killing beds.” The work which Jurgis was to do here was very simple, and it took him but a few minutes to learn it. He was provided with a stiff besom, such as is used by street sweepers, and it was his place to follow down the line the man who drew out the smoking entrails from the carcass of the steer; this mass was to be swept into a trap, which was then closed, so that no one might slip into it. As Jurgis came in, the first cattle of the morning were just making their appearance; and so, with scarcely time to look about him, and none to speak to any one, he fell to work. It was a sweltering day in July, and the place ran with steaming hot blood—one waded in it on the floor. The stench was almost overpowering, but to Jurgis it was nothing. His whole soul was dancing with joy—he was at work at last! He was at work and earning money! All day long he was figuring to himself. He was paid the fabulous sum of seventeen and a half cents an hour; and as it proved a rush day and he worked until nearly seven o’clock in the evening, he went home to the family with the tidings that he had earned more than a dollar and a half in a single day!

(Excerpt from Chapter 4)

The new hands were here by the thousands. All day long the gates of the packing houses were besieged by starving and penniless men; they came, literally, by the thousands every single morning, fighting with each other for a chance for life. Blizzards and cold made no difference to them, they were always on hand; they were on hand two hours before the sun rose, an hour before the work began. Sometimes their faces froze, sometimes their feet and their hands; sometimes they froze all together—but still they came, for they had no other place to go. One day Durham advertised in the paper for two hundred men to cut ice; and all that day the homeless and starving of the city came trudging through the snow from all over its two hundred square miles. That night forty score of them crowded into the station house of the stockyards district—they filled the rooms, sleeping in each other’s laps, toboggan fashion, and they piled on top of each other in the corridors, till the police shut the doors and left some to freeze outside. On the morrow, before daybreak, there were three thousand at Durham’s, and the police reserves had to be sent for to quell the riot. Then Durham’s bosses picked out twenty of the biggest; the “two hundred” proved to have been a printer’s error.

(Excerpt from Chapter 7)

And now in the union Jurgis met men who explained all this mystery to him; and he learned that America differed from Russia in that its government existed under the form of a democracy. The officials who ruled it, and got all the graft, had to be elected first; and so there were two rival sets of grafters, known as political parties, and the one got the office which bought the most votes. Now and then, the election was very close, and that was the time the poor man came in. In the stockyards this was only in national and state elections, for in local elections the Democratic Party always carried everything. The ruler of the district was therefore the Democratic boss, a little Irishman named Mike Scully. Scully held an important party office in the state, and bossed even the mayor of the city, it was said; it was his boast that he carried the stockyards in his pocket. He was an enormously rich man—he had a hand in all the big graft in the neighborhood. It was Scully, for instance, who owned that dump which Jurgis and Ona had seen the first day of their arrival. Not only did he own the dump, but he owned the brick factory as well, and first he took out the clay and made it into bricks, and then he had the city bring garbage to fill up the hole, so that he could build houses to sell to the people. Then, too, he sold the bricks to the city, at his own price, and the city came and got them in its own wagons. And also he owned the other hole near by, where the stagnant water was; and it was he who cut the ice and sold it; and what was more, if the men told truth, he had not had to pay any taxes for the water, and he had built the ice-house out of city lumber, and had not had to pay anything for that. The newspapers had got hold of that story, and there had been a scandal; but Scully had hired somebody to confess and take all the blame, and then skip the country.

(Excerpt from Chapter 9)

There were the men in the pickle rooms, for instance, where old Antanas had gotten his death; scarce a one of these that had not some spot of horror on his person. Let a man so much as scrape his finger pushing a truck in the pickle rooms, and he might have a sore that would put him out of the world; all the joints in his fingers might be eaten by the acid, one by one. Of the butchers and floorsmen, the beef-boners and trimmers, and all those who used knives, you could scarcely find a person who had the use of his thumb; time and time again the base of it had been slashed, till it was a mere lump of flesh against which the man pressed the knife to hold it. The hands of these men would be criss-cross...