11.2: The Public Policy Process
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Students of public policy have long noted that the process of public-policymaking is circular. It has no real beginning or end. Nevertheless, categories help make sense of the process: agenda setting; problem identification; formulation; adoption; implementation; and evaluation.
Agenda Setting
The first step in the process is getting the item on the public and governing agenda, or taking advantage of an event which does the same. This is often done by interest groups that wish to push a policy objective. It also involves positive publicity, as well as efforts to control how a specific issue is presented to the public. In recent years, mass shootings have been used by gun control advocates to promote bans on the purchase of assault weapons, limits on the size of magazines, and background checks on gun purchasers. In response, gun rights groups have developed effective means for countering these attempts. They’ve been able to argue that gun control laws are ineffective, infringements on individual rights, and that the best way to counter a bad guy with a gun is with a good guy with a gun (Figure 11.2). This illustrates that groups not only attempt to get their preferred policies on the public agenda, they attempt to knock policies they disagree with off of it.
In Texas, the top legislative and executive officials have the opportunity to impact the governing agenda at the beginning of each legislative session. They can determine which pieces will be prioritized within their respective spheres of influence. In early 2021, at the beginning of the Eighty-Seventh Regular Session of the Texas legislature Governor Greg Abbott listed five items as emergency items which, constitutionally, could be voted on prior to any other legislation that had been introduced. These included: “expanding broadband internet access; punishing local governments that “defund the police” as he defines it; changing the bail system; ensuring what he described as “election integrity”; and providing civil liability protections for businesses that were open during the pandemic.”6
Dan Patrick, the lieutenant governor, had a different set of priorities which he placed at the front of the agenda of the Senate agenda. It was much more expansive than that of Governor Abbott and included “a ‘Star Spangled Banner Protection Act’ that would require the national anthem to be played at all events that get public funding.”7 The agenda of House Speaker Dade Phelan included “‘weatherizing’ the state’s energy infrastructure to protect it from extreme weather, creating a statewide alert system for impending extreme events and improving communication between state agencies to better coordinate during disasters.”8 The variety of proposals on the agenda, along with the limited amount of time the legislature has to pass legislation, showcases the conflict that exists over what governments should prioritize.
Problem Identification
A closely related concern is how an item that comes to the public agenda is defined. The definition of that issue will often determine not only how people approach it, but what solutions are likely to be proposed for it. The political scientist E.E. Schattschnieider maintained that:
The definition of the alternatives is the supreme instrument of power; the antagonist can rarely agree on what the issues are because power is involved in the definition. He who determines what politics is runs the country, because the definition of alternatives is the choice of conflicts, and the choice of conflicts allocates power.9
A key issue is whether, for example, an event reveals a problem or a condition. The difference is that problems have solutions, while conditions do not. Take for example the shutdown of the electric grid during the deep freeze in February 2021. Was that a problem or condition? You could argue that the freeze itself was a condition but the shutdown was a problem. But what kind of problem? And what kind solution would solve that problem?
Even while the shutdown occurred, the Texas Oil and Gas Commission and the Texas Railroad Commission sent out messages claiming that the problem was that wind turbines had frozen, and that the solution was to increase “reliable” energy sources such as oil and natural gas.10 This message was quickly picked up and redistributed by other elected officials, including U.S. Congressman Dan Crenshaw (Figure 11.3). The American Clean Power Association rebutted the accusation, but by that time the initial claim had helped define the issue, and set the terms of debate.11 The fact that these governing officials moved quickly on talking points created by the Texas Oil and Gas Commission is a great example of agency capture.
Policy Formation
Once an item is on the policy agenda and the underlying problem has been identified, the question becomes how this problem will be solved. There are two options depending on whether the problem needs to be addressed with new legislation, or whether existing legislation allows for the problem to be addressed through existing legislation. In the case of the former, the issue must be taken to the legislature since a new law must be passed. In the latter, one can bring up the issue with the relevant executive agency. An existing law exists which the agency already has the power to implement. The only question is what rule should be made to implement the law according to the wishes of the interest group.
This helps explain the purpose of the iron triangle, which connects interest groups with potential allies in legislative committees and executive agencies. Ideally the interest group—or whoever is promoting a policy—has preexisting connections with like-minded people in those institutions who are predisposed to formulate policies beneficial to them. It also explains the advantage of the revolving door, which ensures that people in the relevant committees of agencies have backgrounds with the interest group, or—as is often the case—vice versa.
For example, the president of the aforementioned Texas Oil and Gas Association is Todd Staples, who served two terms as Texas Commissioner of Agriculture. On April 20, 2020, Staples was appointed by Governor Abbott to be the leader of the Energy Working Group, which was part of the Governor’s “Strike Force to Open Texas.”12 The purpose of the group was to protect the interests of the oil and gas sector during the early weeks of the COVID-19 shutdown. In other words, any policies related to the pandemic would be made with the interests of the oil and gas sector in mind.
Policy Adoption
At some point, an official decision is made to adopt the policy. Traditionally this means that he legislature passes a law, and the chief executive—in this case the governor—has opted to sign and not veto it. As we saw above, that can also mean that a rule may be passed instead by an executive agency, but we will save that for the section on implementation below. This seems simple enough, but since the passage of legislation requires a majority vote, and every member of a legislature has their own goals and aspirations—as well as interests to serve—the adoption of a one policy can have consequences for others.
Take log rolling, for example. Log rolling is the practice of vote trading by legislators. In order to ensure the passage of one’s own bill, one legislator might agree to vote for that of another legislator. Legislation then sometimes passes not because it is on the agenda so much as that it is a practical necessity in order to ensure that passage of a different law. Policies can also be passed not because of popular support but rather because of the legislative skills of the members of the legislature.
Policies can be slipped in surreptitiously, without notice, in the form of a what is called a poison pill amendment designed to reduce support of the overall legislation. A noteworthy, failed, example occurred when Representative Howard W. Smith, a Democrat who represented northern Virginia from 1955 to 1967, introduced an amendment to the Civil Rights Act of 1964 including “sex” in the categories of discrimination made illegal in the bill.13 The intention was to make the overall bill less likely to pass, but it passed anyway. Not only does this make sex discrimination covered by the Civil Rights Act, it has been recently used against bills which discriminate against transgender persons. Policies can sometimes be unintended consequences of the language in a bill.
They can also be intentional. While the previous policy was adopted by accident, policies can sometimes be subtly slipped in a bill by the careful use of language that may in the future allow for cases taken before the courts. In November 2019, the voters of Texas ratified an amendment prohibiting even the possibility of an income tax in the state (Figure 11.4). The amendment reads as follows: “The legislature may not impose a tax on the net incomes of individuals, including an individual’s share of partnership and unincorporated association income.”14
While this seems simple enough, legally there is a significant omission. The previous language included the phrase “natural persons.”15 This means an actual living, breathing, human. The word persons could also be interpreted to include corporate persons. Critics wonder if this means that the amendment may also be used one day to strike as unconstitutional any taxes on businesses.16
Policy Implementation
This power, constitutionally, belongs to the executive branch. When the legislature passes a law, it sends the responsibility to enforce it to the appropriate executive agency. Occasionally a new law requires a new agency to administer it. In addition, the Texas Sunset Review Commission might suggest changes in, if not the abolishment of, state agencies. The commission has recently called for the Texas Racing Commission to be abolished, and its functions absorbed either by the Comptroller’s office or the Texas Department of Agriculture. The commission makes its choice based on what seems best for the industry regulated.
The implementation of the law involves a rulemaking procedure established by the state and can be found in the Texas Administrative Code. The process is overseen by the Office of the Secretary of State. The SOS publishes the Texas Register on a weekly basis. It contains the rules proposed by Texas agencies, which are then open for public comment. After thirty days the comments are addressed, the rules are finalized, and adopted at the appropriate date. Attentive interest groups review the Texas Register regularly for rules which may impact them.
A key goal of interest groups is to ensure that the relevant agency is sympathetic to the group’s needs. The best way to do so is to have input into who is appointed to the board or commission that heads the agency. The best way to do this is to make contributions to the governor’s campaign since the governor makes the appointments. There are well over 100 boards and commission that are appointed by the governor. If the governor makes the appointment requested by the affected industry, the industry can have influence on its own regulations.
Policy Evaluation
This is the final official step in the policy making process, but as mentioned in the beginning, it leads back to the start. A negative evaluation of an existing policy can often put the policy back on the public agenda, Then the whole cycle starts again.
As opposed to other parts of the process, policy evaluation is highly public in nature. Just as is the agenda setting process, which is why the two can sometimes be considered to be one and the same. When events occur—such as the recent shutdown of the electric grid—questions natural follow, such as why did it happen? Who is responsible? And what changes can be made to existing policy to ensure that it does not happen again? Similar questions have been asked in the state in recent years about flooding in the Houston area, the explosion of a fertilizer company in West Texas, the shooting in Santa Fe High School (Figure 11.5), among many other incidents.
The media plays an obvious role in this section, and interest groups try to influence how the media addresses policies relevant to them. Word choices can go a long way to influencing how people process the information they receive. The Texas Oil and Gas Association has recently persuaded supporters to call electricity generated by oil and gas reliable energy. That subtly infers that electricity generated by wind and solar power are unreliable. In turn, of course, the wind and solar industry has used the terms renewable to define their field, carrying the inference that oil and gas is finite.
6. Alex Bukoski, “Breaking Down Governor Abbott’s Five Emergency Items for the Texas Legislative Session,” KBTX, Geb. 3, 2021, kbtx.com/2021/02/04/breaking-down-governor-abbotts-five-emergency-items-for-the-texas-legislative-session/.
7. Patrick Svitek, “Dan Patrick Announces 2021 Priorities Focused on Pandemic, Power Grid and Socially Conservative Issues,” Texas Tribune, Feb. 23, 2021, https://www.texastribune.org/2021/02...21-priorities/.
8. Mitchell Ferman and Patrick Svitek, “Texas Lawmakers Plan Slate of Bills in Response to Power Outages, but Experts Skeptical There Will Be Meaningful Change,” Texas Tribune, Mar. 8, 2021, https://www.texastribune.org/2021/03...-power-outage/.
9. Elmer Eric Schattschneider, The Semisovereign People: A Realist's View of Democracy in America (Hinsdale, IL: Dryden Press, 1988), http://notesonatheory.wordpress.com/...-alternatives/.
10. Erin Douglas and Mitchell Ferman, “When The Power Went Out, Texas Oil and Gas Regulators Rushed to Defend the Industry’s Image,” Texas Tribune, Apr. 5, 2021.
11. Erin Douglas and Ross Ramsey, “No, Frozen Wind Turbines Aren’t the Main Culprit for Texas’ Power Outage,” Texas Tribune, Feb. 16, 2021. https://www.texastribune.org/2021/02...rbines-frozen/.
12. “TXOGA President Todd Staples Appointed to Governor’s Strike Force to Open Texas,” TXOGA, Apr. 20, 2020, https://www.txoga.org/txoga-presiden...les-appointed- to-governors-strike-force-to-open-texas/.
13. “How A Poison Pill Worded As 'Sex' Gave Birth To Transgender Rights, “ NPR, May 15, 2016 , https://www.npr.org/2016/05/15/47807...sgender-rights.
14. Tex. Const. art. VIII, § 24-a (language added Nov. 5, 2019), https://statutes.capitol.texas.gov/D...N/htm/CN.8.htm.
15. Tex. Const. art. VIII, §1(b) and 1(c), https://statutes.capitol.texas.gov/D...N/htm/CN.8.htm.
16. Tessa Weinberg, “Texans Will Be Asked to Ban Income Taxes. Why That Brings Fears of Unintended Consequences,” The Fort Worth Star Telegram, Oct.. 9, 2019, https://www.star-telegram.com/news/p...235873582.html.