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

There’s no doubt that the technologies have arrived to make it possible for individual citizens to participate in the legislative process.

“We’ve already seen a shift in both software and the media where individual content is key and any one very talented coder or blogger can impact an industry,” Amanda McPherson, director of marketing for the Linux Foundation, told LinuxInsider.

“The tools to enable this collaboration are in place today,” she said. “Would they work the same in government? It’s hard to say, but the potential is there.”

Part 1 of this two-part series discusses the efforts that have already been undertaken to open up the legislative process, as well as elements that must be in place before it can happen.

An Ever-Widening Circle

The opening up of legislation is most likely to begin within the government, in its legislative bodies, committees and staff, Peter Leyden, director of the New Politics Institute, told LinuxInsider.

“Laws go through all kinds of markups, changes and amendments,” Leyden said. “The process has evolved from making those changes on parchment to at least using word-processing documents, but it’s not that big a step to think of moving to the next generation of tools and crafting a whole piece of legislation on a wiki.”

The next likely step would be opening up the process further so that citizens could view and comment upon legislation in the works, or even — along the lines of California state Senator Joe Simitian’s concept in his “There Oughta Be a Law” contest — submit their own ideas, Leyden added.

Constitutional Amendment

“People could not just comment but maybe even rework passages using a parallel, unofficial draft online,” he explained. “Ultimately, it’s possible you might see some kind of process where a group outside of Congress might use a wiki to evolve a proposed bill that they could submit to their legislators.”

Where the notion starts to get harder to imagine, Leyden added, is at the idea of citizens using a wiki to work a proposed bill all the way up to the floor of Congress.

“You would probably need a Constitutional amendment to make that happen, because representatives get their power from the Constitution,” he noted.

The Trouble With Wikis

Not only that, but the sheer volume of conversation and contribution when people begin participating in a legislative wiki “would create way too much for any government to digest,” Andrea Di Maio, vice president and distinguished analyst in the government group at Gartner, told LinuxInsider.

Separating the special interests from the citizens would be another challenge. “That will take some creativity, when there’s so much more at stake than a Wikipedia entry,” Andrew Updegrove, open standards expert and Linux Foundation legal consultant, told LinuxInsider.

Wikis also have a hard time dealing with real, serious conflict, Leyden added.

“When you have people with opposing points of view, wikis can get to be a battleground, and it’s hard to broker a deal in the same way that you can in the traditional process,” he explained. “That process of give and take is often how the real stuff of politics gets worked out.”

Incompatible Politics

Perhaps even more essential, however, is the question of whether this country is prepared philosophically to open up legislation.

“It’s not that it can’t be done — there’s actually nothing very complicated about it,” Eben Moglen, professor of law at Columbia Law School and founding director of the Software Freedom Law Center, told LinuxInsider. “But in order for it to happen, we have to want it to, and in this country too many people don’t.”

The top 300,000 wage-earners in the United States earn as much as the bottom 150 million, Moglen said.

“We live in a country in which the legislators, state and federal, are bought — in which the idea of everyone making laws is rejected for political reasons,” he commented. “This is a political question of why we don’t live in a democracy.”

By using a system of representation rather than participation, the United States adheres to a republican model of government, Moglen added. However, in many ways, the overriding philosophy goes back to the ideas of John Jay, author of the Federalist Papers, who argued that the country should be ruled by those who own it, not those who live in it, he said: “That notion is still very pronounced in American politics — it’s the dominant way of thinking.”

Will Apathy Rule?

While most Americans believe their legislators are owned by a variety of interests, they also believe that conflict among those interests will give the legislators enough liberty to act upon their own beliefs, at least once in a while, Moglen explained.

Will people continue to be satisfied with a government that acts on their behalf only once in a while, or too disgusted to demand more? That remains to be seen. However, as more and more people begin experimenting with a more open process, they may be unwilling to go back.

“Conventional wisdom says that the public is cynical, apathetic and turned off of government,” Sen. Simitian told LinuxInsider. “My experience has been that if you give people a meaningful opportunity to participate in the process and produce results, they will jump at the chance.”

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

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