Frontiers of Democracy Research: A Fresh Perspective on Lobbying and Political Access
In this post, Richa Mishra explores Maggie McKinley’s work on The Madison Project, an online legislative crowd-sourcing platform, and its implications for the practice, function, and constitutional contours of federal lobbying. McKinley is a Climenko Fellow at Harvard Law School and recent Democracy Fellow at the Ash Center for Democratic Governance and Innovation. She researches and writes on legislation, theories of interpretation, minority rights and representation, and the architecture of lawmaking institutions. McKinley hopes to move the current rhetoric around reform away from a focus on majority control and a demonization of lobbyists toward a more productive discussion of procedural injustice and political access.
This post is part of an occasional series, Frontiers of Democracy Research, highlighting the research of faculty, fellows, and affiliates of the Ash Center, whose work explores innovations in public participation and substantive challenges to democratic governance. With the spirit and understanding that the chief driver in democracy is demos, or “We the People,” this series takes discussions out of the realm of academia and into the public realm. This post is based on conversations in person, over the phone, and by email. As with all our posts, we look forward to your comments.
By Richa Mishra
Congress is often seen as an inherently majoritarian institution. Public dissatisfaction has peaked in recent years with the battle cry that Congress no longer represents “the will of the people.” Recent studies have declared Congress an “oligarchy,” because it creates laws out of step with the preferences of average Americans. In the court of public opinion the law of democracy is clearly majoritarian and clearly settled.
As a Climenko Fellow at Harvard Law School, Maggie McKinley studies the ways in which democracy in Congress turns out to be more complicated. She elaborates,
We often forget that the Framers architected Congress to be republican, meaning representative, and not strictly majoritarian. To be sure, Article I of the Constitution established majoritarian mechanisms, like the requirement that “the people” decide by election the composition of Congress. But the Constitution also established mechanisms for minority engagement, the right to petition, for example, and mechanisms for minority protection — most notably, protections for speech and equal treatment under law. The Framers rejected explicitly the idea that majorities should be able to ‘instruct’ lawmakers, an anachronistic practice from the Confederation Congress that allowed majorities to bind lawmakers to their will. These procedural checks were intended to architect a Congress that would allow lawmakers to govern independently. What it means to govern independently and the details of those procedural checks, however, are not yet defined.
Given the recent battles over disenfranchisement, the legal academy has focused on elections in studying the law of democracy. Representation during the lawmaking process, outside of the majoritarian mechanism of the vote, has garnered far less attention. McKinley’s research aims to fill this gap by studying the law of democracy outside of the electoral process and by examining the way that outsiders contribute to the lawmaking process. Put simply, she says, “I study lobbying.”
McKinley’s current research project has a four complementary parts: The first is empirical; she spent last year working alongside federal lobbyists, gathering data for an ethnographic study of D.C. lobbying. The second is historical, examining lobbying and petitioning at the Founding to understand what function those practices serve and what the framing generation intended to protect with the right to petition. The third part is theoretical and looks at the way that our Constitution and laws have designed our lawmaking institutions to facilitate or to obstruct outsider engagement and explores how we should regulate such engagement in the future. Finally, as a Democracy Fellow at the Ash Center for Democratic Governance and Innovation has supported the applied part of her work: designing The Madison Project, an open source software that allows for public participation in the lawmaking process.
Watch an introductory video to The Madison Project.
The Madison Project is an “insider technology” in that it was born from a hack-a-thon hosted within the House of Representatives. Madison 1.0 allowed the public to edit proposed bills Wikipedia-style. Senator Ron Wyden and Congressman Darrell Issa used the platform to crowd-source amendments to the OPEN Act, a bill drafted in opposition to the Stop Online Piracy Act (SOPA) and Protect Intellectual Property Act (PIPA). For the first time, the markup process was opened to crowdsourcing.
The OpenGov Foundation received a Knight Foundation grant to add new functionality to The Madison Project. They wanted to conduct a research study to engage the public on software design and also needed help designing the software. That is when McKinley stepped in, first as a consultant and then as a member of the advisory board.
When asked what piqued her interest in Project Madison, McKinley credits her two older brothers who would not let her hang out with them unless she learned how to build computers, code, and use bulletin board systems. So, the opportunity to apply her research to building software seemed the perfect fit. “Technology provides a great method to work through difficult theoretical questions,” McKinley shared. “It forces theories into concrete terms and allows for focused discussion, as well as inexpensive experimentation.” But the project needed an academic home and McKinley needed a community to engage the political science puzzle that Madison presented.
Screenshot of The Madison Project, a new platform for crowd-sourcing legislation.
Ford Foundation Professor of Democracy and Citizenship Archon Fung and Democracy Fellow Hollie Russon Gilman’s research on participatory democracy drew McKinley to the Ash Center. Sean Gray introduced her to Participedia, another Wiki-style online database documenting innovations in public engagement co-founded by Fung. Gray later contributed to early UX mockups for Madison. “Archon and Hollie’s research, like others at the Ash Center, bridges the worlds of political theory, new technologies and innovations, and democracy reform. The Madison Project complicates theories of participatory democracy in that it falls under the rubric of participation,” McKinley described, “but it also evokes traditional concerns over lobbying — namely, faction and capture. I was eager to engage with the scholars and fellows at the Ash Center on ways to design the software around that tension.”
Along with the executive director of the OpenGov Foundation, Seamus Kraft, McKinley organized a discussion at the Ash Center on the Madison Project. The conversation moved between abstract political theory and specific design solutions to solve potential problems. Notably, attendees identified Madison as an “invited space,” or an intermediary space where citizens are invited by government to participate. They also questioned how Madison would overcome the traditional pitfalls of invited spaces, including lack of access for marginalized groups. As a democratic process, some attendees thought Congress should receive input equally and others were concerned that prioritizing equal political voice might transform Madison into a tool of direct democracy. Designing the Madison Project as a platform for minority voice called for a different set of design solutions, including identity verification and spaces where interest groups could collaborate.
The feedback we received was incredibly helpful,” McKinley reported. “Afterwards, we redesigned functionality. We hope to involve Ash in upcoming hack-a-thons where new features are built.”
Fung presses the Ash Center’s Democracy Fellows to engage with the contemporary problems facing democracy and to find ways to address those problems directly. In McKinley’s case, identifying the problem was easy: “I am studying Congress at a time when public opinion ranks Congress lower than toenail fungus, zombies, and cockroaches. I am not kidding, this was a real survey. But, in contrast to zombies, Congress depends on the public in order to function as an institution.”
Identifying solutions was also easy: “I think we need to work toward a more active notion of citizenship — active in the sense of voting and petitioning the lawmaking process, but also active in the sense of citizen-funded elections.” A long-time supporter of public financing, McKinley’s research has reaffirmed that conviction. She notes that lawmakers spend more and more time engaged in fundraising, rather than governing and engaging the public in dialogue. “Although the right to petition still exists, exercising that right is necessarily limited by the scarcity of lawmakers’ time, unless one can afford to attend the fundraising events where lawmakers make themselves available.”
Screenshot of commenting feature on The Madison Project
McKinley also believes that the campaign finance system has led to hostility toward any kind of legislative advocacy. “Lobbying has never been incredibly popular, but it has been a respected means of social change,” she says. “Now lobbying is synonymous with rent seeking and corruption, and citizens cannot see themselves looking to government for solutions to social problems. That stigmatization deprives us of one of the primary channels of government engagement.”
McKinley’s work aims to move the rhetoric around reform away from a focus on majority control and a demonization of lobbyists and toward a discussion of procedural injustice and political access. “Rather than fostering a sense of outrage over the fact that the majority is not getting its way and criticizing individuals who advocate on behalf of minorities,” she says, “we need to ask what sorts of mechanisms of representation our Constitution provides — like petitioning and voting — and to examine if those mechanisms are working as intended.” She believes that if properly designed, the Madison Project and other forms of participatory democracy might serve as a means to reinvigorate active citizenship and prop up mechanisms of representation that might be failing — while still preserving republican principles.
As constitutional architect and President James Madison described, the solution to faction is not direct democracy, but rather: “A republic, by which I mean a government in which the scheme of representation takes place… Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves.” McKinley hopes that her work might ensure that, in reclaiming our republic from the “oligarchy” some describe, it is returned to us as originally intended and not as something less perfect.
Richa Mishra is a research fellow at the Ash Center for Democratic Governance and Innovation. She has over 15 years of experience in international development and public policy formulation with the UN system, the World Bank and research and academic institutions. Richa has extensive experience in promoting democratic institutions in transitional political systems.
Originally published at www.challengestodemocracy.us.