Open Legislation, Part 1: What If Everybody Got to Write Laws?

It’s probably safe to say that most Americans, at one time or another, have felt they could do a better job of governing the nation than their elected officials. It may even be safe, in fact, to say that that has never been more true than it is today.

“Bush’s approval ratings are as low as it’s possible for a president to go, but they’re still slightly higher than those of Congress,” noted Eben Moglen, professor of law at Columbia Law School and founding director of the Software Freedom Law Center. “People don’t trust their legislators to take good care of their interests.”

As Web 2.0 technologies such as blogs and social networking sites increasingly involve the public in the campaign process, it’s natural to wonder whether the legislative process wouldn’t benefit from a little opening up as well. We have Wikipedia; we have open source collaborative tools and software; why not let everyone participate in the making of laws?

Empowering ‘Joe Citizen’

“In the world of open source, your contribution, vetted and approved by your peers, gets committed into the mainline in a completely transparent and accountable process,” Amanda McPherson, director of marketing for the Linux Foundation, told LinuxInsider.

“If Joe Citizen could impact and view the legislative process in the way a Linux developer can, I believe the result would be superior legislation,” she said. “Lawmakers would be judged on results, those with the most and best to contribute could do so, and special-interest groups working selfishly would be exposed.”

‘There Oughta Be a Law’

Residents of the 11th District of California have already experienced a small taste of what that would be like. Beginning in 2002, State Sen. Joe Simitian has run an annual contest called “There Oughta Be a Law” in which citizens are invited to submit their ideas for new legislation.

One hundred applications came in the first year, and three of those ideas were ultimately signed into law. Since then, the number of applications has increased to about 250 each year, and Senator Simitian reads each one personally. A total of 10 citizen ideas have now made it into legislation.

Winners of the contest get the opportunity to testify on behalf of their bill, as well as to have lunch with their senator. “Of course, the real prize is the chance to make a law that will affect 37 million Californians,” Simitian told LinuxInsider. “We’ve been surprised and pleased by the response,” he said.

“There is real value in tapping the experience and expertise of those you represent,” Simitian added. “As the saying goes, none of us is as smart as all of us.”

Risky Business

At the opposite end of the spectrum was an effort by former British Prime Minister Tony Blair to incorporate citizen feedback on his proposed Road Tax to tackle congestion.

Last November, Blair’s staff set up a Web site dedicated to allowing people to communicate with him directly, and within days of raising the issue the site was swamped by the overwhelmingly negative responses of 1.8 million people.

“The experiment died,” Andrea Di Maio, vice president and distinguished analyst in the government group at Gartner, told LinuxInsider.

Gaining Momentum

Following that less-than-successful attempt, it’s not clear whether other politicians will be willing to risk a similar result, Di Maio noted: “You never know what you’ll get when you poll people directly.”

Nevertheless, as populations grow and districts expand, it’s becoming more and more difficult for elected representatives to stay connected with the people they are supposed to represent. “People feel government is getting more and more remote,” Simitian said.

While there don’t appear to be any full-fledged experiments that take the notion of an open legislative process any further — at least not yet — the idea does get discussed, and with increasing regularity.

“I’ve heard serious conversations in the Netherlands,” Di Maio said. “In places where there is already open source software being used by government, people tend to understand the potential better.”

3 Key Ingredients

What would it take to make it happen?

Just as in the world of free software, “the raw materials are proof of concept, running code and the presence of community,” Moglen told LinuxInsider. In other words, people need to be shown that the idea could work, they need to have a rough draft to dig in with, and they need to be willing to collaborate to make it happen.

The Free Software Foundation’s version 3 of the GNU General Public License (GPLv3), crafted through intense collaboration over 18 months, is an example of a piece of legislation created in an open way, Moglen noted. So, indeed, are the sets of rules drafted by homeowners’ associations, in industries and between employers and employees through the collective bargaining process.

The Wonder of Wikis

Wikis and other online tools make possible a level of collaboration that couldn’t have been imagined a few decades ago, noted Peter Leyden, director of the New Politics Institute.

“Twenty years ago there was no e-mail, but today all our governments run on it,” Leyden told LinuxInsider. “Wikis are still a new technology that many people don’t fully understand, but they’re just useful tools to help collaboration, which ultimately is what much legislation comes down to.

“I can imagine that in another 20 years or so, these tools could be very common in government as a way to draft legislation,” Leyden said. “It’s an idea that should not be dismissed.”

Open Legislation, Part 2: It’s the People’s Choice

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