The tortoise and the hare: institutions, policy and social change

I have been working on a project about policy innovation in the U.S. (even though it’s often considered “reluctant” or a “laggard” especially in social policy).  The case I focus on is disability rights. The idea that the U.S. is a policy leader has become difficult to sell in light of the countless articles and media reports about the 113^th Congress being the most unproductive in decades and the partisan conflicts and gridlock characterizing Congress.  Not to mention the fact that about a year ago, the Senate failed to ratify the UN Convention on the Rights of People with Disabilities (see my December 2012 post “Is anyone really against persons with disabilities?”). Ironically, the language of the Convention was based on the 1990 Americans with Disabilities Act – thought of by many as the most important piece of civil rights legislation enacted since the 1964 Civil Rights Act. The rights language of the ADA also subsequently informed similar laws in Australia and the U.K.

But it is not the only policy area in which the U.S. is a leader rather than a laggard. I’d like to thank Maureen Eger for pointing me to a recent New York Times article by economics professor Tyler Cowen (Dec 21, 2013). Cowen argues that despite the emphasis on congressional gridlock which either leads to policies nobody wants or no policies at all, the U.S. is better characterized as having periods of “creative ferment” followed by periods of controversy, conflict and retrenchment more akin to a lunging and lurching than political immobility or gridlock. When it comes to handling the financial crisis, environmental policy, intellectual property, and national security/defense, the U.S. has acted rather swiftly. Conflict that may prohibit effective policy implementation typically occurs after bursts of attention and initial legislative output.

This seems to be the nature of American political institutions. They are both a blessing and a curse. On the one hand, the congressional committee system, the parochial nature of U.S. politics, lax party discipline, and “unfinanced mandates” (i.e., the decoupling of policymaking from budgeting), allows political entrepreneurs to pursue a variety of issues. Indeed, institutional arrangements encourage issue entrepreneurship. In a couple of papers I wrote on this topic (one on institutional activism and the other on policy communities and strategic action fields), I noted that the flexibility and openness of American political institutions has allowed social movement organizations and other non-state actors to have a place at the table. Likewise, the fragmented multilayered nature of American political institutions allows for an executive branch (and I would argue the courts as well) to have a great deal of influence over how policies – which can often include broad language and platitudes – are actually to affect the daily lives of citizens.  On the other hand, many of these institutional factors that characterize the so-called weak American state lead to the kinds of political conflicts and ineffective policies the public has come to associate with Congress.

HEW protests in the 1970s.

The disability case highlights both the blessing and curse of American political institutions.  Political entrepreneurs in the early-1970s were able to use their influence in the congressional committees in which they served, aided by support from eager Office of Civil Rights (OCR) officials in the Health, Education and Welfare (HEW) department to include rights language (language that set the tone for the future of disability rights in America and beyond) in the Rehabilitation Act (specifically Section 504). This was done fairly quietly with little public knowledge or pressure from disability organizations.  Legislative staffers and executive branch members also formed close relationships with the nascent disability rights movement. Judy Heumann, founder of one of the first modern cross-disability protest groups Disabled in Action (DIA), interned for Lisa Walker, a staffer for Rep. John Brademas and Sen. Harrison Williams, both of whom were disability policy entrepreneurs.

However, when it came to writing regulations that would spell out how it is that the public sector and those benefitting from federal contacts were to accommodate people with disabilities and increase the presence of people with disabilities in the workplace, HEW became increasingly reluctant knowing that Section 504 regulations would cause a backlash from public transit authorities and public educational institutions.  While the OCR and some in HEW acted as disability advocates, leadership was hesitant. It required a push from both institutional activists and protest/advocacy groups to pressure the HEW secretary to sign the regulations. They were signed five years after the Rehabilitation Act was passed! In fact, entrepreneurs in the executive branch, including HEW deputy director, Martin Gerry, encouraged protests at HEW offices when David Matthews, the then new HEW secretary, was reluctant to act on Section 504.

The implementation of the Rehabilitation Act and the ADA were characterized by many as a “failure” especially when it came to improving the economic well-being of people with disabilities. In a prior post (see “Ambulance chasing as legal mobilization”), I wrote about a working paper with Michelle Maroto which looks at the worsening economic opportunities for people with disabilities since the ADA. As Congress retreated from disability rights, and the executive branch – through reorganization and changing leadership – became a less entrepreneurial advocate for disability rights, the courts, which ruled conservatively on disability rights cases, became increasingly more relevant in shaping how disability antidiscrimination legislation was to be applied. It would take Congress fifteen years to seriously revisit the ADA in order to undo what many saw as a perversion of the original intent of the law.

There are some important parallels between disability policy and other policy areas. In describing environmental policy, Cowen claims that “The period immediately before the passage of the Clean Air Act of 1970 was a time of creative ferment in the United States, when different branches of government, including those at the state and local level, competed to offer solutions for cleaning up the air. Yet once these laws were passed, a period of retrenchment and gridlock set in, whereas Sweden saw through its reforms more consistently. Later, the United States had another wave of rapid policy change with amendments to the Clean Air Act in 1990. On balance, both countries ended up in more or less the same place, namely with effective antipollution laws.”

The U.S. has fostered important social changes via policy that has made it a world leader across many domains. Akin to the “punctuated equilibrium” thesis, so-called creative ferment leads to bursts of congressional attention making the U.S. “a hare.” At the same time, and despite difficulty in retrenchment efforts described by Paul Pierson, it is a system that enables a great deal of conflict and allows for the kinds of compromises that widen the gap between policy intent and what policies actually end up looking like. While Cowen suggests that the U.S. and Sweden in the end are at the same place in antipollution laws (although in 2012, Sweden was 10^th best on the Environmental Performance Index and the U.S. did not crack the top 30 but it was 28^th in 2006), for people with disabilities, the U.S. and Sweden are not in the same place (e.g., the employment rate for people with disabilities in the U.S. is about 20% while it’s at about 50% in Sweden). While the U.S. was well ahead of other countries in establishing disability rights, it fell increasingly behind throughout the 1990s and 2000s in improving the economic well being of people with disabilities. Here would be a good place to remind readers of the moral in Aesop’s fable The Tortoise and the Hare: slow and steady wins the race.