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International Review of Public Policy

3:1 | 2021 Regular Issue

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Printed version Date of publication: 15 March 2021 ISSN: 2679-3873

Electronic reference International Review of Public Policy, 3:1 | 2021, “Regular Issue” [Online], Online since 15 March 2021, connection on 18 June 2021. URL: https://journals.openedition.org/irpp/1605; DOI: https://doi.org/ 10.4000/irpp.1605

International Review of Public Policy is licensed under a Creative Commons Attribution 4.0 International. vol.3 number 1 2021

International Review of Public Policy Benjamin Cashore, Yale University (USA) Editorial Board Jennifer Dodge, University at Albany, State University of New York (USA) Editors in Chief Wolfgang Drechsler, Claudio M. Radaelli, Tallin University of Technology (Estonia) University College London (United Kingdom), Anna Durnova, coordinator Institute of Advanced Studies (Austria) Laura Chaques Bonafont, Guillaume Fontaine, University of Barcelona – IBEI (Spain) FLACSO Ecuador (Ecuador) B. Guy Peters, Paulo R. Graziano, University of Pittsburgh (USA) Università di Padova (Italy) Jale Tosun, Patrick Hassenteufel, Heidelberg University (Germany) University of Versailles Saint-Quentin (France) Nikolaos Zahariadis, Brian Head, Rhodes College (USA) University of Queensland (Australia) Michael Howlett, Forum Editors Simon Fraser University (Canada) Frank Fischer, Bryan Jones, Humboldt University (Germany) University of Texas at Austin (USA) Philippe Zittoun, Jacint Jordana, Institut Barcelona d’Estudis Internacionals (Spain) LAET-ENTPE, University of Lyon (France) Christoph Knill, Book Review Editors Ludwig Maximilians University of Munich (Germany) Mark Lubell, Valesca Lima, University of California, Davis (USA) National University of Ireland, Maynooth (Ireland) Ciqi Mai, Evangelia Petridou, Tsinghua University (China) Mid-Sweden University (Sweden) Jose Luis Mendez, El Colegio de México (Mexico) Innovations Projects M. Jae Moon, Jonathan Kamkhaji, Yonsei University (South Korea) University of Exeter (United Kingdom) Leslie Pal, Carleton University (Canada) Director Jon Pierre, University of Gothenburg (Sweden) Philippe Zittoun, LAET-ENTPE, University of Lyon (France) M. Ramesh, Lee Kuan Yew School of Public Policy (Singapore) Scientific Committee Christine Rothmayr, University of Montreal (Canada) Frank Baumgartner, Fritz Sager, The University of North Carolina at Chapel Hill (USA) University of Bern (Switzerland) Susana Borrás, Grace Skogstad, Copenhagen Business School (Denmark) University of Toronto (Canada) Christina Boswell, Toddi Steelman, University of Edinburgh (Scotland) Duke University (USA) Rosana Boullosa, Helen Sullivan, Federal University of Bahia (Brazil) Crawford School of Public Policy (Australia) Marleen Brans, Katrien Termeer, Catholic University of Leuven (Belgium) Wageningen University and Research (Netherlands) Giliberto Capano, Chris Weible, University of Bologna (Italy) University of Colorado, Denver (USA) International Review of Public Policy Vol.3 — number 1 — 2021

Table of contents

Articles During Disaster: Refining the Concept of Focusing Events to Better Explain Long-Duration Crises 5 Rob A. DeLeo / Kristin Taylor / Deserai A. Crow / Thomas A. Birkland When red tape saves time: The Anti-corruption controls for the 2015 Universal Exposition 29 Simone Busetti / Bruno Dente Protecting Rights in the Policy Process: Integrating Legal Proportionality and Policy Analysis 51 Mordechai Kremnitzer / Raanan Sulitzeanu-Kenan Investigating ACF Policy Change Theory in a Unitary Policy Subsystem: The Case of Ghanaian Public Sector Information Policy 72 B. Timothy Heinmiller / Emmanuel M. Osei / Eugene Danso

Ambiguity, Uncertainty and Implementation 100 Kristin Taylor / Stephanie Zarb / Nathan Jeschke Forum Patterns of Democracy Matter in the COVID-19 Crisis A Comparison of French and German Policy Processes 121 Nils C. Bandelow / Patrick Hassenteufel / Johanna Hornung Book Review Andrew MASSEY (Ed.), A Research Agenda for Public Administration 137 Petra Svensson Malcolm TORRY, A Modern Guide to Citizen’s Basic Income: A Multidisciplinary Approach 140 Arya Pillai Elin Lerum BOASSON, Merethe Dotterud Leiren, & Jørgen Wettestad (Eds.), Comparative Renewables Policy: Political Organizational and 143 European Fields Kristin Olofsson

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During Disaster: Refining the Concept of Focusing Events to Better Explain Long-Duration Crises

Rob A. DeLeo Bentley University, USA Kristin Taylor Wayne State University, USA Deserai A. Crow University of Colorado Denver, USA Thomas A. Birkland North Carolina State University, USA

Abstract Potential focusing events are sudden, relatively rare events that reveal harm, or the potential for harm, are known to policymakers and the public virtually simultaneously, and work harms on a definable geographic area or community of interest. Focusing events can provide a powerful symbol of government failure, thereby allowing previously ignored issues to advance on the government agenda. We revisit this conceptualization of focusing events within the context of the COVID-19 pandemic. We show that, while the current COVID-19 pandemic has had a profound effect on both the media and government agendas, it lacks many of the elements used to differentiate focusing events from other theoretical constructs used to describe public problems. Specifically, our findings suggest that focusing event theory is ill equipped to -de scribe slow-onset, long-duration disasters such as COVID-19. We develop a new typology for characterizing these types of events, which accounts for both the duration of the event as well as the magnitude or scale of the event’s impact.

Keywords focusing events, agenda setting, policy change, COVID-19

This research was supported by the U.S. National Science Foundation under Grant N°. DRMS-2030316. We acknowledge all members of the Risk and Social Policy Working Group for their support. 6 International Review of Public Policy, 3:1

Introduction The COVID-19 pandemic is one of the most significant public health crises in modern history, killing over 2 million people worldwide (Johns Hopkins, 2021). Unsurprisingly, a chorus of popular commentators has come to label it a “focusing event” capable of yielding broad social and political change across virtually every sector of society (Jenkins, 2020; Reville, 2020; Bur- gess, 2020; Olshan, 2020; Zenko, 2020). Jeremy Olshan (2020) of MarketWatch writes: “Social scientists say a crisis like COVID-19 is a ‘focusing event’, one that recalibrates public policy and cultural norms. This collective focusing may not happen quickly enough.” Micah Zenko, Senior Fellow at Chatham House, writing in Foreign Policy, said “the virus offers a focusing event from which political leaders and government officials can have a (roughly) shared understanding of what happened, why it happened, who is accountable, and how can it be avoided”. And in his Boston Globe op-ed, Harvard Professor of Education Paul Reville (2020) calls the pandemic a “focusing event that has turned public attention to children and education”. This line of thinking has permeated academic publishing as well. A simple Google Scholar search unearths scores of peer-reviewed publications labelling the pandemic a focusing event. This research suggests that the pandemic has facilitated opportunities for policy change not only within the public health community (Hur & Kim, 2020), but in scores of other policy areas as well, including long-term care policy (Béland & Marier, 2020; Reynolds, 2020), labor and delivery policy (Monteblanco, 2021), education policy (Hoffman & Miller, 2020), immigration policy (Jakobson & Kalev, 2020), healthcare finance policy (Béland et al., 2020), and housing policy (Verhaeghe & Ghekiere, 2020). While few would object to calling COVID-19 a crisis, a closer reading of extant policy theory suggests that the current pandemic lacks many of the key features typically associated with potential focusing events. It was neither sudden nor unexpected by experts. It was not geo- graphically isolated. And, to date, it is largely unclear whether the crisis will trigger the types of large-scale policy changes potentially associated with learning from focusing events (Birkland, 1997, 1998). Complicating matters further, many of the crises explored in the focusing events literature tend to be time-bound disasters, such as earthquakes, hurricanes, or technological accidents. By contrast, the COVID-19 pandemic is a slow-onset, long-duration phenomenon that has caused — and will continue to cause and reveal — harms over a long time. Within this context the following study assesses whether COVID-19 has the characteristics of a focusing event. We begin by reviewing the existing research on focusing events. Although the concept has been widely applied across the policy sciences, our analysis is grounded in Birk- land’s (1997, 1998) conceptualization of potential focusing events, which focuses on agenda setting and policy change after man-made or naturally occurring disaster. We use a mixed- methods design to analyze the extent to which COVID-19 can be accurately characterized as a focusing event, its influence on the agenda of the United States Congress and the U.S. national media, and the extent to which the pandemic has induced policy change. We show that, while the current crisis has a profound effect on legislative and media agendas, it does not meet the classic definition of a focusing event, and therefore has different effects on agenda-setting and the development of policy solutions that are typically seen in event-driven policy. Nor has it yet sparked robust lesson-learning that can be applied to similar hazards in the future. We conclude by presenting a typology for characterizing the policymaking implications of slow-onset, long-duration events such as the COVID-19 pandemic. DeLeo / Taylor / Crow / Birkland | During Disaster: Refining the Concept of Focusing Events... 7

Focusing Events and Policy Process Theory The term “focusing event” was coined by John Kingdon in his 1984 book Agendas, Alterna- tives, and Public Policy, which forms the foundation of the Multiple Stream Framework (MSF) of agenda setting and policy change. The MSF argues that the policy process contains three streams of activity, which, when coupled, create windows of opportunity for proponents of policy change to push their favored issues onto the crowded government agenda (Herweg et al., 2017). The policy stream includes policies presented as solutions to pressing social issues. The politics stream describes the partisan composition of government, interest-group preferences, and the national mood, which refers to the way in which elected officials perceive the preferences of the public. Finally, the problem stream describes the various items vying for policymaker attention. Focusing events represent an important element of the problem stream, along with indicators and feedback. Indicators are statistics and other measures documenting changes in a problem. Feedback includes information generated through evaluations of existing government programs. But these aspects of policy problems are often insufficient to generate attention. Rather, Kingdon argues that “problems...need a little push to get the attention of people in and around government”. Pushes come in the form of a focusing event or a “crisis or disaster that comes along to call attention to the problem, a powerful symbol that catches on, or the personal experience of a policy maker” (2003, pp. 94-95). Focusing Events Defined Kingdon’s definition of focusing events is imprecise, discursive, and inductive. Birkland (1997) clarifies the concept to make it more tractable to systematic study. He defines potential focusing events as “sudden, relatively rare, can be reasonably defined as harmful or revealing the possibility of future harms, inflicts harms or suggests potential harms that are or could be concentrated on a definable geographical area or community of interest, and that is known to policy makers and the public virtually simultaneously” (Birkland, 1997, p. 22). This refinement allows us to measure the features of an event that makes it “focal,” such as the suddenness of the event, harms (e.g., injuries, deaths, property damage) from the event, and the scope of the disaster (e.g., population of the area affected or the size of the group affected by the event). Birkland’s emphasis on a potential event suggests that it is difficult to know a priori whether an event will have a great deal of focal power. By sharpening and clarifying the definition of a focusing event, Birkland’s theory offers an -un derstanding of the concept that is more measurable but slightly narrower than the definitions offered by rival theories. The Advocacy Coalition Framework (ACF), for example, suggests that so-called “external shocks” encompass not only disasters, but other types of events as well, such as shifts in public opinion, or even deteriorating socioeconomic conditions (e.g., a reces- sion) (Jones & Jenkins-Smith, 2009; Jenkins-Smith et al., 2017; Nohrstedt, 2009). Punctu- ated Equilibrium Theory (PET) has allowed for a fairly sweeping conceptualization of focusing events or exogenous shocks (Baumgartner & Jones, 2009), one which includes disasters as well as important social and political developments, such as important court rulings (Wood, 2006). Still, Birkland’s (1997) study remains the gold-standard among students of disaster policy, a testament to his careful operationalization and measurement of the concept. Existing applications have focused primarily on sudden-onset events, such as aviation security incidents (Birkland, 2004), flooding (O’Donovan, 2017; Albright & Crow, 2021), wildfires (Crow et al, 2017), hurricanes (Roberts, 2009), and earthquakes (DeYoung & Penta, 2017). In contrast, 8 International Review of Public Policy, 3:1 scholarship on emerging diseases, which gradually unfold over a period of weeks or months, has primarily focused on the role of indicators to initiate issue attention (DeLeo, 2018). Well before the COVID pandemic, Birkland (2006) used the avian influenza outbreak to highlight this distinction: In 2005, for example, the problem of the H5N1 strain of bird flu influenza gained worldwide attention, and its transmission to humans in Turkey and Europe in early 2006 has increased concern about pandemic flu, and in particular about the possibility of its transmission from person to person rather than from birds to people. But a global flu pandemic is a different kind of disaster from the type described in this book because it can be anticipated before the pandemic occurs (p.7). He adds that, in public health domains, “problems become known slowly, as indicators of problems accumulate and become more evident” (p. 7). This is not to say that public health matters do not come to occupy a great deal of the agenda; rather, that public health issues emerge on the agenda over time, not in an instant. Nor are we arguing that pandemics cannot emerge quickly; we are arguing that they do not emerge suddenly, in a way that causes the mass public and policy elites to come to the “alarmed discovery” (Downs, 1972) of a problem nearly simultaneously. With this in mind, there does not appear to be a bright line between focusing events and indicators. Research suggests that, when indicators amass rapidly, providing little time for policymakers to engage in the type of pre-event preparedness typically associated with public health domains, events can bowl their way onto the government agenda in much the same way as a focusing event (DeLeo, 2015; DeLeo, 2018). For example, unlike the 2005 avian influenza case described by Birkland, a number of recent public health crises, including the 2009 swine influenza pandemic and the 2014 Ebola epidemic, escalated relatively quickly, sickening and killing thousands of people in a matter of months. This revelation of harms is thus much more akin to the dramatic shock caused by a sudden-onset event than the long, drawn-out process typically associated with the gradual accumulation of indicators (see also DeLeo, 2021). Focusing Events, Issue Attention and Agenda Change Focusing events are important in the policy process because they can open windows of opportunity for elevating issues onto the agenda. Kingdon (2003) suggests that disasters have the ability to “simply bowl over everything standing in the way of prominence on the agenda” (p. 96). Birkland’s notion of potential focusing events tempers this expectation by showing that many disasters fail to trigger the type of robust mobilization typically associated with agenda change and that, in any case, we cannot know a priori whether an event will have very much “focal” power. While most disasters trigger an uptick in negative media and policymaker attention, agenda change occurs when events induce government to explore potential actions in the face of the policy failures revealed by the event. Moreover, research suggests that single, one-off events tend not to open windows of opportunity (O’Donovan, 2017). Instead, windows open due to an accumulation of experience with the problems revealed by events over time. The accumulated experience of nearby jurisdictions may also influence policy change during relatively brief windows of time (O’Donovan, 2017). However, some conditions can make focusing events more powerful and influential than other events. First, the suddenness of an event, and concomitant claims that the event was unfore- seeable, are consistently influential. By moving the harms of an event from the realm of the foreseeable — or, more to the point, the preventable — to the realm of the unexpected, the DeLeo / Taylor / Crow / Birkland | During Disaster: Refining the Concept of Focusing Events... 9 policy actors responsible for addressing the problems raised by a focusing event can shift cul- pability from human frailty to chance occurrence (Stone, 1989). Second, the severity or widespread nature of an event can also catalyze policy change, either out of necessity or due to lessons learned from the event (Crow et al., 2019). Third, the framing of the issues revealed by the event helps to define the underlying problems that exist, thereby narrowing the scope of possible policy solutions (Lawlor & Crow, 2018; Crow et al., 2016; Wolfe et al., 2013; `t Hart & Tindall, 2009; Lawrence & Birkland, 2004). Finally, the institutional arrangements within a policy domain are important for issue attention. Agency characteristics, the statutory or regulatory regime in place, and the extent to which the policy problem is discrete or spans several policy areas, can be highly influential in shaping issue attention within the domain (May et al., 2009; May et al., 2008). Focusing Events and Policy Change Focusing events can help to induce agenda change; however, not all events promote what we might normatively believe to be the “correct” kind of policy change. For example, school shoot- ings focus attention and capture agenda space but do not often lead to policy change. This is because, for some highly conflictual policy issues, increased attention to the problem on the agenda may mean that policy entrepreneurs seek to flood the policy debate with their preferred construction of the problem and its solutions in an effort to deny agenda space to other actors (Wolfe et al., 2013; Pralle, 2009; Wheeldon & McBrien, 2015; Lawrence & Birkland, 2004). Birkland’s conception of focusing events shares similarities with Anthony Downs’s Issue-At- tention cycle (1972), in which an event causes a very sudden increase in concern about a problem, followed by a decline in interest in the problem as the benefits and the costs of potential solutions become manifest while the “alarmed discovery” of the problem wanes over time. Unlike Downs, however, Birkland’s conception of focusing events indicates that events can yield policy change that creates long-term institutional and attitudinal change in relation to public problems. In the case of the Exxon Valdez oil spill, the focusing event overcame a lengthy legislative deadlock and led to the enactment of the Oil Pollution Act of 1990, which substantially changed prevention and response policy regarding oil spills, while the September 11 attacks led, among other things, to significant changes in the aviation security system worldwide (Birkland, 2004). As focusing events reveal policy failure, they can prompt learning about why the event happened, what can be done to respond to it, and what can be done to prevent its recurrence (Mc- Connell, 2010a). Policy learning describes the process through which policymakers apply new information and ideas to policy decisions and is one of the most important pathways to policy change (Sabatier & Jenkins-Smith, 1999; May, 1992). Disasters reveal deficiencies in existing policy regimes, in turn providing an opportunity for the government to reexamine old laws and enact changes to mitigate risk (Birkland, 2006; Albright, 2011; Albright & Crow, 2021; Crow & Albright, 2019; O’Donovan, 2017; Heikkila & Gerlak, 2013). There are various types of post-event learning (May, 1992). Instrumental learning focuses on the utility of existing policy instruments or the tools used to achieve program objectives. So- cial learning focuses not on the intricacies of policy design, but on the way in which problems are framed and defined and the underlying causes of problems. Between these two are various types of learning that can lead to changes in organizations, policies, and strategies used to accomplish policy goals (May, 1992; Birkland, 2006; O’Donovan, 2017). It is important to note, however, that the post-event enactment of new legislation is not evidence of instrumental or 10 International Review of Public Policy, 3:1 social learning. Many policies do little more than reinforce the status quo by simply funneling additional funding into existing institutions or programs without closely evaluating the substantive effects of existing policy (Birkland, 2004; Baumgartner & Jones, 2009). The time horizon for policy change is, however, limited to fairly short windows of opportunity, namely the period when the public and media are focused on the disaster and on recovery from the event. Data and Methods To what extent is COVID-19 a focusing event? To assess this question, we use a mixed-methods design, combining quantitative analysis of the emerging-disease policy domain with a case analysis of COVID-19 policymaking in the U.S. Our quantitative analysis examines the infectious-disease policy domain from 1995 through the third quarter of 2020. We use this span of time because policy dynamics often take a decade or more to manifest and also to reflect the effects of exogenous events on government agendas (Sabatier, 1988). We estimate the effect that prominent infectious-disease outbreaks during that time, including COVID-19, influenza, Ebola, and Severe Acute Respiratory Syndrome (SARS), had on the U.S. congressional agenda and on the media agenda, as measured by mentions in the Congressional Record and the New York Times. We model COVID-19 not as a stand-alone event, but as one of a number of events influencing the larger emerging-disease domain over the last 25 years. This approach prevents us from narrowly focusing on the idiosyncrasies of the COVID-19 pandemic, which has not yet run its course. Our approach also provides several points of comparative data. The models use count data, so we rely on negative binomial analysis to estimate the effect of disease cases on the media and congressional agendas. Negative binomial regression has been previously used by scholars examining the relationship between public health issues and agenda setting (DeLeo, 2018; see also Delshad, 2012). Our qualitative case analysis examines the similarities and differences between COVID-19 policymaking and Birkland’s conceptualization of focusing events. An exploratory case-study approach of this nature is appropriate given the theoretical goals of this analysis (Yin, 2017). The quantitative model detects fairly broad patterns of issue attention and agenda change, while the case study specifically examines the process through which COVID-19 emerged as a political issue, triggered policy change, and potentially induced learning. Table 1 provides a summary of the variables in the regression analysis. We model two dependent variables. The first dependent variable, media change, captures the number of mentions in news stories of COVID-19, Severe Acute Respiratory Syndrome (SARS), avian influenza, swine influenza, and Ebola, in the New York Times from 1995 through August 15, 2020. The data were gathered by searching the LexisNexis University database for the terms “COVID-19,” “SARS,” “avian influenza,” “swine flu,” and “Ebola” in the headlines and lead paragraphs of stories published in the New York Times, a newspaper of record in the United States and therefore a useful measure of media attention paid to major national issues and their influence on othermedia reporting (Weaver et al., 2004). DeLeo / Taylor / Crow / Birkland | During Disaster: Refining the Concept of Focusing Events... 11

Table 1: Variable Summary

Name Description Values Source

Dependent Variables

Agenda Change Number of Congressional Count-data, entries Congress.gov website Record entries by quarter-year

Media Coverage Number of New York Times Count-data, stories Lexis-Nexis online stories by quarter-year database

Independent Variables

COVID-19 Number of COVID-19 Count-data, cases by WHO Situational human cases worldwide quarter-year Reports

SARS Number of SARS human Count-data, cases by WHO Situational cases quarter-year Reports

Ebola 2014 Number of human cases Count-data, cases by WHO Situational resulting from the 2014 quarter-year Reports Ebola epidemic

Ebola Number of human Ebola Count-data, cases by WHO Situational cases, not including the quarter-year Reports 2014 epidemic

Avian influenza Number of human H5N1 Count-data, cases by WHO Situational avian influenza cases quarter-year Reports

Swine influenza Number of human H1N1 Count-data, cases by WHO Situational swine influenza cases quarter-year Reports

Source : The Authors The second dependent variable, agenda change, applies the same search string used to gather New York Times data but measures the number of times that emerging diseases were entered in the Congressional Record. A running record of all the statements made on the floor of the United States Congress, the Congressional Record is a widely used proxy for agenda change. Because Congress takes various recesses over the course of a given legislative session, both agenda change and media change are measured by quarter-year (every three months), yielding 103 quarters to analyze in the dataset. Independent variables account for the number of global cases resulting from six of the largest and most significant novel-disease outbreaks since 1995. Our disease data come from the World Health Organization’s (WHO) Situational Update Reports, which provide detailed accounts of the global incidences of various novel diseases. Situational Update Reports are available on the WHO website. Independent variables are count data and are measured quarterly. 12 International Review of Public Policy, 3:1

We include two variables measuring outbreaks of the novel coronavirus, COVID-19, the primary focus of this study, and SARS. Coronaviruses denote a diverse family of viruses that range in severity from the common cold to serious and often life-threatening complications such as respiratory distress. Because humans have no history of exposure to novel coronaviruses, and therefore little or no immunity, these viruses are particularly deadly. COVID-19 was first identified in China in December 2019. By March 2020, the WHO declared the outbreak a pandemic, as the disease resulted in thousands of cases worldwide. As of this writing, COVID-19 is estimated to have made more than 107 million individuals sick, killing more than 2.3 million of them. SARS made more than 8,000 people sick worldwide between November 2002 and May 2004. SARS was an extraordinarily lethal disease, and despite the lower disease incidence, it killed more than 770 people. We include two variables measuring outbreaks of novel influenza, avian influenza and swine influenza. Novel influenza is a classification used to describe influenza viruses that cause human cases but are different from seasonal flu, which means that humans often lack immunity. The first pandemic influenza scare came in 2003 following the outbreak of a novel strain of H5N1 avian influenza in Southeast Asia. The outbreak was contained, never infecting more than 120 people a year. In contrast, the 2009 H1N1 swine influenza, which originated in Mexico, quickly spiraled into a pandemic that made hundreds of thousands of people sick worldwide. Finally, we include two variables measuring outbreaks of Ebola, Ebola and Ebola 2014. Ebola is a lethal form of viral hemorrhagic fever that infects both humans and primates. While the first outbreak occurred in 1976, Ebola caused a string of outbreaks across Africa in the 1990s and 2000s. The variableEbola captures the case counts associated with these intermittent outbreaks from 1995 through the third quarter of 2020 excluding the 2014 Ebola epidemic. These outbreaks collectively resulted in more than 5,000 human cases. We treat the Ebola 2014 epidemic as a separate event because it resulted in nearly six times the number of cases as the previous outbreaks, including a few cases in the U.S. and Europe. Analysis COVID-19 and Agenda Change We begin our analysis by estimating a baseline model to capture the agenda effect of all the emerging diseases described above — except for COVID-19 — on the media and congressional agenda. We created a variable combining the number of cases associated with SARS, avian influenza, swine influenza, the 2014 Ebola epidemic, and the various Ebola outbreaks of the 1990s and 2000s. To ease interpretation, we transformed this variable to a z-score. Our baseline model indicates that every one-standard deviation increase in the number of emerging- disease cases (roughly 39,513 cases) results in an approximate 26% increase in the number of Congressional Record entries and a 48% increase in the number of stories published in the New York Times. DeLeo / Taylor / Crow / Birkland | During Disaster: Refining the Concept of Focusing Events... 13

Table 2: Agenda Change and Novel Diseases

Independent Variables Model 1 Model 2 Congressional Record New York Times

COVID-19 .706(.1595)*** 3.394(.7428)***

SARS .160(.0937)* .317(.1440)**

Ebola 2014 .119(.0924) .394(.1704)**

Ebola .052(.0934) .004(.1338)

Avian Influenza .318(.1175)*** .146(.1687)

Swine Influenza .145(.1073) .281(.1792)

Intercept 3.238(.0991)*** 4.003(.1424)***

N 103 103

Mean 40.30 183.1068

Deviance goodness of fit (value/df) 1.233 1.328

Log likelihood -438.652 -494.876

Chi-square likelihood ratio 70.946 475.709

Note: Estimated coefficients are z-scores. Standard errors in parentheses *p<0.10, **p<0.05, ***p<0.01; two-sided test of significance Source: The Authors Given the baseline model characteristics, Table 2 adds COVID-19 and treats avian influenza, swine influenza, SARS, Ebola 2014, and Ebola as discrete events. Deviance goodness-of-fit tests are used to assess how well observed data fit the model. Scores closer to “1” indicate a better model fit. Deviance goodness-of-fit testing for both the Congressional Record (goodness- of-fit=1.233), as well as theNew York Times models (goodness-of-fit=1.328), suggest a strong fit. Moreover, chi-square likelihood ratios for the Congressional Record model (chi-square likelihood ratio=70.946) and the New York Times model (chi-square likelihood ratio=475.709) indicate that our models are a significant improvement over the null. 14 International Review of Public Policy, 3:1

We once again transform independent variables to z-scores to help ease the interpretation of the models. Model 1 indicates that COVID-19 had a dramatic and statistically significant effect on the Congressional Record. Specifically, every one-standard deviation increase in COVID-19 cases (roughly 1,729,032 cases) resulted in an almost 70% increase in Congressional Record entries. In comparison, a one-standard deviation increase in SARS cases (roughly 685 cases) and avian influenza cases (roughly 8 cases), the only other statistically significant predictors in Model 1, resulted in 16% and 32% increases in Congressional Record entries, respectively. Model 2 indicates that novel-disease outbreaks have an even greater effect on the media agenda; however, COVID-19 stands out. Every one-standard deviation increase in the number of COVID-19 cases results in a more than 300% increase in New York Times stories. The other statistically significant predictors in our model, the 2014 Ebola epidemic and SARS, generated modest upticks in attention but ultimately paled in comparison to COVID-19. Specifically, a one-standard deviation increase in Ebola 2014 cases (roughly 1,526 cases) results in a 39% increase in New York Times stories, whereas a one-standard deviation increase in SARS cases results in a 32% increase in media attention. Of course, these results should be interpreted with caution because the estimates are based on nine months of COVID-19 data. It is plausible that issue attention will wane in the months ahead, especially if the number of cases drops. However, the sheer magnitude of COVID-19’s impact on the government and media suggests that the pandemic will continue to have a profound effect on issue attention, especially when compared with previous outbreaks. These results are especially striking because previous research suggests that avian influenza and Ebola triggered fairly robust policy change at the congressional level and were widely considered wa- tershed events in the public health domain (DeLeo, 2018). COVID-19 Through the Lens of Focusing Event Theory The following section assesses the extent to which the characteristics of the current COVID-19 crisis match Birkland’s (1997) definition of a focusing event as being: (1) sudden and relatively rare; (2) harmful or revealing possible future harms; (3) confined to a geographical area; and (4) known to policymakers and the public simultaneously. Table 3 suggests that COVID-19 is different from the classic conceptualization of focusing events. First, although COVID-19 is undoubtedly a serious event, it cannot be characterized as sudden, at least from the perspective of U.S. policymakers. The disease was first identified in Wuhan, China, in December 2019 and it was not until late January 2020 that the WHO classified the outbreak as a Public Health Emergency. On January 20, 2020, nearly a month after the disease was identified in China, the U.S. reported its first case of COVID-19 (Holshue et al. 2020). The first known instances of community spread in the U.S. occurred in late February 2020 (CDC COVID-19 Response Team et al., 2020). Although the COVID-19 pandemic escalated quickly, the event was neither relatively sudden nor unexpected in the way that a hurricane is (providing only a few days of lead time for preparation), or an earthquake or plane crash, which happen with no warning. DeLeo / Taylor / Crow / Birkland | During Disaster: Refining the Concept of Focusing Events... 15

Table 3: Focusing Events and COVID-19

Focusing Events COVID-19 Features of COVID-19

Sudden, relatively rare Yes/No Relatively rare, but not sudden

Harmful and reveals future harms Yes Harmful and revealed future harms

Concentrated geographic area No Global in scope

Known to policymakers and public No Policymakers were aware before simultaneously public

Source: The Authors Second, the virus is not concentrated in a specific geographical area. By definition, a pandemic is “an epidemic occurring worldwide, or over a very wide area, crossing international boundaries and usually affecting a large number of people” (Kelly, 2011, p. 540). COVID-19 has caused widespread illness and has stifled the global economy, making it a far different type of disaster than the natural and man-made incidents examined in the focusing events literature. It is a global pandemic, although the harms are distributed unevenly across different geographical regions of the world and the U.S. Indeed, uneven effects are being observed within the U.S. The effects of the novel coronavirus are particularly severe for members of vulnerable populations, specifically Black American, Hispanics, Native Americans, and the elderly (Kaiser Family Foundation, 2020). Third, COVID-19 wasnot known to policymakers and the public simultaneously. Chinese public health officials reported the outbreak of a cluster of respiratory infections on December 31, 2019. Less than a week later, the cluster was confirmed as being caused by a novel coronavirus (Patel & Jernigan, 2020). Media reports indicating the outbreak of a virus in China causing flu-like symptoms did not appear in the New York Times until January 6, 2020 (Wee & Wang, 2020). On January 4, 2020, the Food and Drug Administration issued emergency protocols for testing and on January 7, 2020 the CDC activated its Incident Management Structure to guide its response (Patel & Jernigan, 2020). This indicates that public health officials were aware of the virus at least a week before the general public was. Widespread media coverage of the virus did not begin until February and March, which means that most Americans were likely to have been unconcerned with the virus until that point. Finally, recent reporting suggests that President Donald Trump knew about the seriousness of the pandemic relatively early in the U.S outbreak, but played down the severity of the virus, further underscoring information asym- metries between elites and the general public (Goldberg, 2020; Gregorian, 2020). The single aspect of the crisis that dovetails with Birkland’s definition of a focusing event is the way in which it reveals harms. COVID-19 revealed the risk of infection and, as the pandemic endures, it continues to reveal additional harms. Indeed, as noted throughout, COVID-19 represents one of the greatest public health crises in modern history. 16 International Review of Public Policy, 3:1

COVID-19 and Policy Change COVID-19 bowled over the media and policy agendas in early 2020 and shares some similarities and differences with the classic definition of a focusing event. But has this attention translated into policy change? Table 4 summarizes the eleven items of legislation related to COVID-19 enacted by the U.S. Congress from the start of the pandemic in March 2020 to the third quarter of 2020. The pandemic has clearly opened a policy window. From a $2 trillion-dollar economic relief program to an $8.3 billion public health response initiative, Congress enacted a series of sweeping policies in response to the crisis. This response spanned multiple policy domains in addition to public health, including the economy, education, social welfare, and law enforcement. May and Jochim coined the term “policy regimes” to describe this boundary-spanning nature of disasters, in which there is “the constellation of ideas, institutional arrangements, and interests that are involved in addressing policy problems” (2013, p. 426). COVID-19 appears to fit the mold of a boundary-spanning issue. It is, therefore, unsurprising that policy change in Congress has spanned multiple jurisdictional and issue areas. Table 4: Federal Legislation Enacted in Response to COVID-19

Public Chamber: Became Law Title Summary Introduced Committees Law No:

Coronavirus Provides $8.3 billion Preparedness and in emergency for Response federal agencies Supplemental responding to Appropriations Act, COVID-19 2020 House: Budget: 116-123 pandemic, including 03/04/2020 03/06/2020 Appropriations Department of Health and Human Services, Department of State, and Small Business Administration.

Families First Responds to Coronavirus coronavirus Response Act pandemic by providing paid sick leave, House: Ways and Means: 116-127 tax credits, and free 03/11/2020 03/18/2020 COVID-19 testing; ex- Budget: panding food assistance Appropriations and unemployment benefits; and increasing Medicaid funding. DeLeo / Taylor / Crow / Birkland | During Disaster: Refining the Concept of Focusing Events... 17

A bill to authorize Authorizes Veterans the Secretary of Administration to Veterans Affairs to continue providing treat certain educational assistance programs of during the COVID-19 education converted to distance learning pandemic. by reason of 116-128 emergencies and Senate 03/16/2020 03/21/2020 health-related situations in the same manner as programs of education pursued at educational institutions, and for other purposes.

CARES Act Authorizes $2 trillion to address COVID-19 and its economic fallout, including cash relief to individual citizens, loan House: Ways 116-136 01/24/20191 03/27/2020 programs for small and Means businesses, support for hospitals, as well as various other programs to support impacted industries.

Paycheck Protection Provides additional Program and Health funding for small House: 116-140 Care Enhancement business loans, health 01/08/2019 04/24/2020 Appropriations Act care providers, and COVID-19 testing.

Paycheck Protection Modifies provisions Program Flexibility related to the Act of 2020 forgiveness of loans House: Ways 116-142 made to small and Means: 05/26/2020 06/05/2020 businesses under the Small Business Paycheck Protection Program

1 — In both of these bills, the Senate used an unrelated bill that had already passed the House in 2019, amended it and sent it back to the House to final approval in order to expedite passage of the legislation. 18 International Review of Public Policy, 3:1

A bill to extend the Extends the application authority for period for the Paycheck commitments for Protection Program the paycheck established to support protection program small businesses in and separate response to COVID-19. 116-147 Senate 06/30/2020 07/04/2020 amounts authorized for other loans under section 7(a) of the Small Business Act, and for other purposes.

Emergency Aid for Increases funding Returning Ameri- and requirements for, cans Affected by temporary assistance for Coronavirus Act U.S. citizens and their 116-148 dependents who are Senate 06/29/2020 07/13/2020 returning from foreign countries due to a crisis and are without available resources.

Protecting Nonprof- Permits certain its from governmental entities, Catastrophic Cash federally recognized Flow Strain Act of tribes, and nonprofit 2020 organizations to make up front payments of 50%, as opposed to 100%, of 116-151 unemployment benefits Senate 07/02/2020 08/03/2020 into the state Unemployment Trust Fund (in lieu of contributions) to be used exclusively to reduce such payments resulting from the COVID-19.

Safeguarding Extends death and dis- America's First ability benefits under the Responders Act of Public Safety Officers’ 2020 Benefits Program (PSOB) to public safety officers Senate: 116-157 05/05/2020 08/14/2020 (e.g., law enforcement Judiciary officers) and survivors of public safety officers who die or become injured as a result of COVID-19 DeLeo / Taylor / Crow / Birkland | During Disaster: Refining the Concept of Focusing Events... 19

A bill to amend the Extends lease Servicemembers protections for Civil Relief Act servicemembers under stop movement orders Senate: 116-158 05/06/2020 08/14/2020 in response to a local, Veteran’s Affairs national, or global emergency, and for other purposes.

Source: The Authors Despite these important pieces of legislation, closer analysis suggests that the COVID-19 pandemic has yet to result in the type of informed lesson learning needed to truly reconfigure subsystem dynamics and create policy change. The legislation enacted and detailed in Table 4 was intended to mitigate the effects of the pandemic on public health, the economy, and education in near real time. All the bills enacted focus on economic stimulus, on new programs to aid in coronavirus testing or care, and on providing additional COVID-19-related flexibilityto programs that already exist, which typically have strict guidelines governing spending or program limits. One exception to this pattern is the Paycheck Protection Program (PPP) modifications made during June and July 2020 (PL 116-142). Once enacted into law in March 2020, Con- gress received a significant volume of feedback from constituent small businesses about the effectiveness of the PPP, its implementation, and the rule that limited the overall loan amount that small businesses could direct towards overheads versus staff salary in order to qualify for loan forgiveness. Based on this feedback, the Small Business Committee in the U.S. House modified requirements to provide the needed flexibility (PL 116-147). This type of legislative response can be described as instrumental learning, or lesson drawing, where policy instruments are modified in response to new information (May, 1992; Birkland, 2004). As previously noted, the COVID-19 legislation passed by the U.S. Congress does not seek to amend or alter existing policies and institutions in order to prevent a similar crisis from happening again in the future. The ways in which Congress has adapted to conduct business remotely (Grisales, 2020) are evidence of government learning, in which government learns how to improve procedures and processes (Howlett, 2012; McConnell, 2010b). These recommendations were made after 9/11 by the Continuity of Government Commission and are routinely brought up by proponents of congressional reform (Ornstein 2020), so the accumulation of knowledge from multiple experiences may also be important to the changes made during COVID-19. In addition to the ongoing nature of the crisis, there are a number of ways that it has affected the institution of Congress itself, which may prevent or delay government, organizational, or social learning. This sort of learning would be necessary for major policy change that would result in restructuring or re-envisioning government agencies, programs, and goals to prevent future similar crises. Like most Americans, Members of Congress worked remotely from home between March and June 2020. Normally, congressional business would require near-weekly trips to Washington, D.C. to vote and to hold hearings. In this three-month timespan, there were three series of votes that focused entirely on COVID-19 legislation. All other legislative business was moved off the calendar and delayed until late 2020. In late June, mid-July, and September, Congress returned for modified shortened vote weeks, which focused primarily on must-pass legislation such as the federal budget. 20 International Review of Public Policy, 3:1

In May 2020, the House of Representatives voted to allow a number of rule changes so that the chamber could continue its work despite the COVID-19 crisis. Remote hearings were allowed, along with a modified proxy-voting process (Grisales, 2020). This meant that most business during the entirety of 2020 was done in a modified format. Hearings were conducted par- tially via remote technology, congressional office buildings were mostly vacant as staff worked remotely, caucus meetings and other formal and informal meetings were cancelled or took place remotely, and votes were held in small groups alphabetically instead of as a full chamber (Tully-McManus, 2020). This last change delayed the business of Congress because votes took much longer (being conducted over hours, rather than in 5- or 15-minute segments, as small groups of Representatives came to the chamber briefly to cast their votes). Together, these rule changes meant that the networking and relationship-building that takes place through both formal and informal means among Members of Congress was more difficult during 2020. These avenues are one important mechanism through which the uptake of new information, exchange of ideas, and learning can take place. While still to be determined, these changes may influence the speed and ability of Congress to learn from the COVID-19 crisis. Because COVID-19 remains a vexing public health crisis, Congress has yet to engage in the type of sustained lesson-learning necessary for major policy change. COVID-19 bowled over the entire agenda, in spite of competition for attention during the pandemic from other issues such as race relations and police power, natural disasters, and the nomination of a U.S. Supreme Court justice. The dominance of COVID-19 on the policy agenda speaks to the severity of the problem and to the focal power of the event over its duration. During the Disaster: Refining the Concept of Focusing Events The COVID-19 pandemic raises a number of important theoretical challenges to policy process theory and, in particular, to research on focusing events. On the one hand, it lacks many of the characteristics used to describe focusing events. It was neither sudden nor unexpected. It is not isolated to a specific geographical area, but is global in scope. Nor has it been isolated within a community of interest. Moreover, it appears that policymakers in the U.S. were well aware of the virus — and its lethality — weeks, if not months, before the general public. On the other hand, it reshaped the congressional and media agendas in much the same way as a focusing event, dominating issue attention since March 2020. And although Congress has yet to pass the sort of sweeping reforms needed to avert another pandemic in the future, this pandemic has resulted in a windfall of legislation and spending to help to mitigate the devastating effects of the virus on public health and the economy. The challenge of characterizing COVID-19 stems from the fact that indicators and focusing events are said to align along a dichotomy, with indicators measuring gradually deteriorating issues and focusing events measuring sudden events. But this research, set in the context of previous work on focusing events and problem indicators, suggests that these two drivers of agenda change may fall more on a continuum. Echoing previous research (DeLeo, 2018), we argue that, when indicators accumulate rapidly, they can have a catalytic effect on media and policymaker attention paid to previously ignored issues. Moreover, studies of aggregate focusing events suggest that an accumulation of several focusing events over time leads to policy change (O’Donovan, 2017). When viewed as a whole, the duration of the effects of a policy problem, whether in more durable indicators or in repeated focusing events, seems to be an important theme in the literature, magnified by the policy implications of the COVID-19 pandemic. DeLeo / Taylor / Crow / Birkland | During Disaster: Refining the Concept of Focusing Events... 21

We propose a two-by-two typology for organizing scholarly thinking about indicators, events, and their effect on the trajectory of agenda setting, policy change, and learning (Figure 1). The x-axis of Figure 1 describes the rate of indicator accumulation or the speed at which cases or other indicators of a problem amass and multiply. Consistent with previous research (Birkland 2006; DeLeo, 2018), we assume that the rate of accumulation can vary from gradual, which refers to situations where there is small to modest change in the number of indicators over a prolonged period of time (several more months or even years), to rapid accumulation, which refers to sizable changes in the number of indicators over a short period of time (weeks to a few months). We also add a dimension accounting for the duration of the effects of an event, de- picted on the y-axis of Figure 1. Here we differentiate between short-duration events, referring to events that only last for a few weeks to a couple of months, to long-duration events, which refer to events that linger for several months to more than a year. Policy process theory emphasizes that all problems, including disasters, are to some extent socially constructed, so variation in the rate of accumulation and duration of an event will likely be somewhat contextual (Birkland, 2006; Kingdon, 2003). The public health domain’s differentiation between disease outbreaks, epidemics, and pandemics provides a useful analog. An outbreak is a greater than expected number of disease cases. An epidemic refers to a larger outbreak typically confined to a particular geographical area. A pandemic refers to a global disease outbreak. There is no definitive threshold used to determine whether a disease event constitutes an outbreak, an epidemic, or a pandemic. Rather, these categories reflect the size and scope of the disease event and a disease’s novelty, which helps to determine whether an event deviates from our expectations of normal transmission within a community. Figure 1: The Indicator-Event Continuum

Short Duration, Rapid Accumulation Long Duration, Rapid Accumulation (SARS) (COVID-19, Swine influenza, Ebola'14)

Short Duration, Gradual Accumulation Long Duration, Gradual Accumulation

Duration of event Duration (Ebola outbreaks) (Avian influenza, MERS)

Rate of indicator Accumulation Source: The Authors We are presented with four distinct contexts for assessing the effect of indicators and focusing events on agenda setting, policy change, and lesson learning. Short-duration, gradual-accumulation events (lower left panel) typically describe novel disease outbreaks that fail to capture policymaker attention, such as the various Ebola outbreaks of the 1990s and 2000s. Indicators suggested a potential problem, but they rarely meet the critical mass needed to trigger widespread concern, at least among U.S. policymakers. These events are typically confined to a very specific geographical area and are therefore less likely to drive agenda setting, let alone the type of informed lesson learning needed to trigger substantive policy change. 22 International Review of Public Policy, 3:1

Long-duration, gradual-accumulation events (lower right panel) also see a gradual and modest accumulation of indicators; however, in this instance, the event lingers for an extended period. The avian influenza outbreak, for example, lasted for several years, but, because the virus never mutated into an airborne strain, it failed to trigger a global pandemic. This pattern lends itself to the indicator-driven policy process described by Birkland (2006) and others (DeLeo, 2018; DeLeo, 2021). Because cases accumulate slowly, policymakers are presented with an opportunity to develop preparedness or pre-event policymaking, a testament to the fact that indicators point to the possibility of a larger problem on the horizon (DeLeo, 2018; DeLeo, 2021). Previous research implies that these conditions can lead instrumental policy learning as most pre-event policy changes seek to prepare for the emerging hazard rather than make systemic changes to avoid such risks. For example, the specter of an avian influenza pandemic caused policymakers to revisit organizational structures used to manage public health emergencies, as well as key liability laws governing vaccine creation and distribution (DeLeo, 2018). Short-duration, rapid-accumulation events (upper left panel) are marked by a sudden, but relatively short-lived, spike in indicators. This is the typical focusing event pattern observed in most natural disasters or terrorist events studied in the disaster policy literature. It is also found in numerous public health cases, such as the 2003 SARS outbreak where a sharp uptick in cases occurred between November and March; however, this incident had been mostly contained by early spring. Although we did not assess whether SARS facilitated policy change, our quantitative analysis shows that SARS had a considerable impact on both the media and congressional agendas as it was the only statistically significant variable in both models aside from COVID-19. We would not, however, expect to see considerable policy learning in these instances since they rapidly fade from the institutional agenda. The policy changes that take place in these cases are more likely to fall in the instrumental, or even mimicking, categories. Finally, and most important for this study, rapid-accumulation, long-duration events (upper right panel) are marked by a rapid and significant accumulation of indicators that create a persistent crisis situation extending over a period of months to years, such as COVID-19. As COVID-19 cases accumulate, we move from an issue-attention process driven by indicators to one driven by something that is conceptualized by policymakers and the public as a singular event. In the context of COVID-19, public attention does not appear to scrutinize individual cases or case counts as they mount in one state and then another. Instead, milestones seem to garner more attention — 100,000 cases, 1,000,000 cases, 100,000 deaths and so on. Not only do these types of events bowl their way onto the policy agenda, but the COVID-19 pandemic suggests that they also facilitate multiple windows of opportunity. Because these events linger for an extended period of time, they often require the enactment of policies that alleviate suffering and support the various government institutions responding to the crisis. In many respects, this type of policy is akin to disaster relief projects that funnel resources into hazard- stricken areas. While these types of activities during disaster are no doubt important, they differ from the type of informed lesson learning that can occur in the aftermath of other types of disasters. Oth- ers have observed a similar phenomenon during the swine influenza pandemic, noting that, while Congress devoted a considerable amount of time to discussing and debating the Obama Administration’s response to the crisis, most of the policy enacted during this period centered on funding vaccine production and on other vaccines (DeLeo, 2015). Still, our modelling suggests that COVID-19 is unlike any public crisis in decades, so it is likely that, once the pandemic recedes, Congress will reform the nation’s public health infrastructure. These changes could DeLeo / Taylor / Crow / Birkland | During Disaster: Refining the Concept of Focusing Events... 23 result in increasing investments in public health preparedness, strengthening the response capabilities of states, re-envisioning the Center for Disease Control and Prevention’s role in collecting and disseminating public health information, or other substantive reforms equivalent to the institutional and policy changes enacted after the September 11, 2001 terror attacks. Of course, where an issue sits on our typology can change over time. Indicator change is dynamic so an event — and especially a disease outbreak — can quickly transition from several years of gradual accumulation to rapid accumulation at a moment’s notice. This means that our typology encompasses policymaking before, during and after a disaster, although our focus here is on policymaking during the COVID-19 pandemic. Finally, it is important to note that neither indicator accumulation nor the duration of an event are sufficient catalysts for policy change. Our typology is intended to help to organize thinking about the context of agenda setting, policy change, and learning; however, whether or not policymakers choose to act on an issue is ultimately a political question. Disasters — be they tornadoes, earthquakes, or disease outbreaks — have the potential to trigger issue attention and agenda setting, but change is never guaranteed (Birkland, 1997). Conclusion Our study represents a first attempt to assess systematically the policymaking implications of the COVID-19 pandemic through the lens of focusing event theory. The COVID-19 pandemic represents a fluid and evolving situation. We are, as the title suggests, analyzing policymaking during disaster. As such, key findings, particularly with respect to the scope of policylearning, need to be revisited in the months and years ahead as testament to the inherent challenges associated with doing policy process research in near real time (Weible et al., 2020). Our typology necessitates closer analysis since our primary focus in this paper is on rapid-accumulation, long-duration events. Future research should continue to sharpen and refine our definitions of duration and rate of accumulation while applying our typology outside the U.S. For example, to what extent does proximity to a problem dictate the relative influence of indicator change? China’s experience of managing COVID-19, as well as H5N1 avian influenza, is likely to be far different from that of the U.S. since both diseases originated within its borders. Above all else, our study of COVID-19 shows that the timing and duration of a crisis matter (DeLeo, 2015). This finding is important for two reasons. First, we show that enduring crises can open multiple windows of opportunity to address different, boundary-spanning policy problems revealed by the event over time. Future research should consider the extent to which this dynamic occurs in others hazards, including the governance of climate change and perhaps other novel disease outbreaks. Second, our findings help to shift the theoretical understanding and empirical investigation of focusing events to account for longer-duration events, such as pandemics, droughts, sea-level rise, or economic recessions, to allow for the aggregation of events and for potential learning along the way that can occur as a result. More specifically, our typology suggests the need to move away from framing indicators (or information) and focusing events (or exogenous shocks) as discrete concepts. Instead, we suggest that they align along a continuum in that emergent hazards can, across time, evolve into large-scale crises that embody many of the key characteristics ascribed to focusing events. This finding suggests that scholars across the policy sciences should consider the time during a disaster as an important factor for policy change, especially within the context of slower-onset, longer-duration events. 24 International Review of Public Policy, 3:1

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When red tape saves time: The Anti-corruption controls for the 2015 Universal Exposition

Simone Busetti Università degli Studi di Teramo, Italy Bruno Dente Politecnico di Milano, Italy

Abstract When a major corruption scandal emerged during the organisation of the 2015 Universal Exposition in Milan, the government set up a brand-new system of preliminary controls for the procurement of all Expo contracts. Controls can certainly be beneficial in many respects, but they inevitably complicate procedures and even produce delays and red tape. Indeed, for a time-pressed schedule as that of the 2015 Expo, preliminary controls were considered a fatal blow. Contrary to expectations, not only bureaucratic delays did not materialise, but controls actually sped up procedures. Therefore, it is worth explaining and learning from this unique outcome. Can it be replicated in other cases? We answer this question by building a model of controls based on programme and non-programme features that support three causal mechanisms: threat attribution, repeated interactions, and actor certification. Such a model is an indispensable tool for designers; it allows to explain how controls work in practice and provide clues on how to adjust the design of the policy to changing contexts. In this respect, the analysis of the Expo controls and their subsequent replications raises several methodological issues relevant to extrapolation-oriented research.

Keywords policy design, causal mechanism, learning, extrapolation 30 International Review of Public Policy, 3:1

Introduction Hosting mega-events, such as world fairs, football championships, or the Olympics, is highly prized by policymakers. Mega-events are promoted as opportunities for triggering radical changes in the political, economic, and urban agendas (Stevens & Bevan, 1999; Kang & Perdue, 1994; Spilling, 1996; Bramwell, 1997). However, the planning and implementation of such events have received several critiques (Gursoy & Kendall, 2006). Hallmark events are charac- terised by time pressure, fast-track decision making, the suspension of ordinary administrative procedures, and an overall lack of transparency (Pillay et al., 2010). In combination with exceptional public spending, rushing administrations, and special procedures, opportunities for corruption are a typical concern for such events. The organisation of the Universal Exposition of Milan seemed to fit this picture perfectly. In May 2014, only one year before the opening of the Expo, a major corruption scandal hit the news. Together with five other people, the procurement director of the Lombardy Region and the procurement manager of Expo Ltd.—the contracting authority and organising company of the Expo—were arrested. The main accusation involved a 55-million-euro contract for all service infrastructures on the event site—restaurants, toilets, storage rooms, and personnel offices. In addition, there were allegations of an organised criminal group able to manipulate all the Expo 2015 bids (Biondani & Gatti, 2014). In response, the government introduced a new system of preliminary controls regarding all procurement documents issued by Expo Ltd. The company had to send all draft documents to the Italian Anti-corruption Agency (ANAC), where a Special Operative Unit (hereafter the Unit) would control the documents and possibly produce observations on legal issues and irregularities. The observations were not binding but were nonetheless a serious complication of the Expo procurement: instead of issuing all documents on its own, Expo Ltd. had to wait for the ANAC to produce their observations and then either redraft the document accordingly or respond with counter-observations (see Figure 1). This relationship between controls and administrative costs is well-known in the literature. While increasing transparency and accountability, corruption controls may lead to delays, controversy (Rose-Ackerman & Palifka, 2016), and even red tape and other bureaucratic patholo- gies (Anechiarico & Jacobs, 1998). From the perspective of Expo Ltd, the new procedures were indeed a case of stakeholder red tape; rules that entail a compliance burden and do not serve the organisational purpose of the company (Bozeman, 1993). In such cases, resources and personnel are absorbed by rule compliance and this typically produces inefficiencies in the form of task delays in performing core functions (Bozeman, Reed & Scott, 1992; Pandey & Scott 2002). Further, the introduction of external checks, additional decision makers and veto points is likely to contribute to lengthening time (Tsebelis, 2002). Surprisingly, however, these administrative costs did not materialise in the case of the Expo. On the contrary, all the observers—policy makers, the ANAC, Expo Ltd., and Expo managers—agreed that controls actually sped up the Expo procurement. Interestingly, this happened in a case that was highly contentious. The Expo was a matter of conflict between the municipal and regional governments from the day after winning the bid, and several actors were eager to use corruption scandals to prove their case against the mega-event. Notwithstanding conflict and the special watch by all opponents, the burdened procedures sped up procurement. The perception of success was so great that controls were quickly replicated and eventually became institutionalised in 2016 under the name of ‘collaborative surveillance’. Busetti / Dente | When red tape saves time... 31

The aim of the paper is to explain this unique result and discuss the possibility of learning from this experience. The next section presents our methodology, inspired by extrapolation-oriented methods. The third section describes the administrative procedures entailed by the controls and provides additional data on their success. In the fourth section, we attempt to explain these surprising results and build a causal model of controls based on three mechanisms: the attribution of threat, repeated interactions, and actor certification. The fifth section discusses the replicability of this seemingly unique experience with respect to applying the same procedure to new contexts. Methods: Mechanisms and extrapolation Extrapolation is a major issue in both social and hard sciences (Steel, 2007). In 2004, Eugene Bardach raised scholarly attention to the ‘extrapolation problem’ and suggested to search for the causal mechanisms underlying policy success. This was considered a possible strategy to overcome the limits of ‘best practice research’ and avoid bad replications caused by formal du- plications of designs, disregarded causal features, and the copy of useless details. Drawing on Bardach’s suggestions, Barzelay (2007) proposed the use of ‘extrapolative case-studies’ aimed specifically at identifying those design and context features that trigger and support the causal mechanisms. The article follows this approach and focuses on those causal mechanisms that explain the implementers’ behaviour and cooperation (Busetti & Dente, 2018). We limit this section to three features of the mechanism-based analysis that are worth mentioning here: the nature of the mechanisms, their possible ‘activators’ (Capano et Al. 2019, Capano & Howlett 2019), and the level of abstraction. First, mechanisms are causal theories—i.e., theoretical constructs that explain how initial conditions produce outcomes. The use of labels is recurrent in the literature—e.g., blame avoidance (Barzelay, 2007), brokerage (McAdam et al., 2001), or naming and shaming (Pawson, 2002)— and we use labels as a way to quickly grasp the inherent causal logic. However, labels are not necessary. The key issue is to provide a deeper understanding of causality and a more fine- grained specification of the causal paths (see Hedstrom & Swedberg, 1998; Mahoney, 2003; Mayntz, 2004; Gerring, 2010). As for theory-based approaches to evaluation (Chen, 1990), the research on mechanisms is focused on why and how a policy works and not on its impact. Second, mechanisms are ‘sets of interacting components’ (Steel, 2008, p. 41). They are triggered and supported over time by a relatively stable configuration of factors, including both design and context features. Policy programmes contribute to the outcome to some extent, although they are not the only ones responsible for programme results (Mayne, 2012). There- fore, if context-dependency is more of a rule than an exception (Franzese, 2007), our causal theoretical framework needs to model context features as well. In the remainder of the article, we will use the term programme features for all the elements that were designed for the programme (not only policy tools but also elements such as implementation devices or resources) and non-programme features for all those elements that occur in the case incidentally (such as media attention or a specific level of administrative capacity). Third, learning from a unique experience requires abstracting from the case. Rose (1993) considered the construction of a causal model of a programme (i.e., a configuration of factors) as a preliminary step to learning from practices and transfer lessons. Such a model would abstract cause-and-effect relations among programme and non-programme elements and their effects beyond the idiographic description of the case. In fact, this process of abstraction is a fundamental step to design functional equivalents; i.e., design elements that differ from the original 32 International Review of Public Policy, 3:1 case but help trigger and support the same causal mechanisms. The identification of mechanisms in Section 4 is an effort to provide such an abstraction, while the analysis of possible replications in Section 5 attempts a discussion on functional equivalents. The collaborative controls in the case of the Expo can be classified as a ‘deviant case’; i.e., a case that presents surprising values and may be used to probe for new explanations and be applied to other cases (Gerring, 2006). Although we do not provide a formal application, the research strategy follows the procedures of ‘explaining outcome’ process tracing (Beach & Ped- ersen, 2019). We started with the outcomes in need of an explanation, reconstructed the causal process conducive to those outcomes and provided evidence on the elements triggering and supporting the mechanisms. This is a theory-generation case study, where mechanisms were reconstructed by working iteratively from empirical results to hypotheses building. The case material includes diverse sources, complementing the analysis of official documents with newspaper articles and other media. Together with several exploratory interviews on the Expo, six additional semi-structured interviews were conducted specifically for this case study and are listed in the Appendix. Collaborative controls and unexpected results Legislation 90/2014 introduced a new system of ex-ante controls to be performed by a newly established Special Operative Unit for Expo 2015 (hereafter, the Unit) within the ANAC. The members of the Unit are not administrative officials of the ANAC but military personnel. The Unit includes three officers and a colonel belonging to the Financial Police and responding directly to the President of the ANAC. The members of the Unit are also not common bureaucrats; they have access to criminal records and other information unavailable to administrative officials and they use investigative methods when performing controls. The controls required the contracting authority (Expo Ltd.) to send the Unit all draft procurement documents for contracts over €40,000: instructions to tenders, technical specifications, the appointment of evaluation committees, the assessment and award of tenders, and documents related to contract implementation and modification. Before publishing any such documents, Expo Ltd. had to submit them to the Unit, which examined the documents and produced advice that could include observations on both legal issues and irregularities. The observations on procurement documents were due within 7 days, whereas those on contract implementation within 15 days (see Figure 1). Busetti / Dente | When red tape saves time... 33

Figure 1: The procurement process of Expo Ltd. before (A) and after (B) the introduction of collaborative surveillance

Source: The Authors As mentioned, the observations were not binding. Expo Ltd. could ignore them but had to produce an explanatory note motivating its conduct through counter-observations. Following the explanatory note, the Unit and Expo Ltd. could start a dialogue conducing to either the refusal or the acceptance of the observations. In the latter case, Expo Ltd. had to redraft the document as if accepting the observations voluntarily. Figure 1 allows us to appreciate the size of procedural complication introduced with respect to a former system where Expo Ltd. had no ex-ante controls at all. Indeed, collaborative surveillance meant a complete U-turn in the Expo procurement: from special procedures aimed at simplification and rapidity to procedures more complicated than the ordinary. Notice also that when the controls were imposed, the delays on the works were substantial. Only 40% of the basic infrastructure of the Expo site (the one where pavilions were to be built) (Luongo, 2019, p. 7) and 10% of the works for the contract of service infrastructures (Special Commissioner for the service infrastructures of the Expo, personal communication, Decem- ber 15, 2016) had been completed at that time. Moreover, Expo Ltd. had yet to sign about one thousand contracts for acquiring goods and services (http://dati.openExpo2015.it/it). In this context, all media predicted an unfinished Expo, a complete failure, and a huge international embarrassment (e.g., Barbacetto & Maroni, 2015; Poletti, 2015; Verdelli, 2015a; Monaci, 2014). In this difficult situation, Expo Ltd. perceived the introduction of controls as a fatal blow to the implementation of the Exposition (Expo Ltd. Procurement Manager, personal communication, November 18, 2016). Involved by the ANAC for monitoring the new system of controls, the OECD also had to admit the risk: ‘the ex-ante control of documents […] by a party separate 34 International Review of Public Policy, 3:1 from the contracting authority, could exacerbate the time it takes to complete tenders’ (OECD, 2015a, p. 3). Confronting the diagram in Figure 1 with the former procedure—the simple draft and publication of procurement documents by Expo Ltd.—gives a measure of the amount of risk. Against these predictions, the Expo opened on time. Most surprisingly, the introduction of controls was considered part of the implementation’s success. As mentioned, all actors involved shared a similar view, that the controls did not only increase transparency but also sped up procurement procedures (Expo Ltd. Procurement Manager, personal communication, No- vember 18, 2016; Members of the Special Operative Unit, personal communication, October 25, 2016 and January 5, 2017; President of the ANAC, personal communication, October 10, 2016). In the scientific papers by the ANAC, the system is said to have allowed for a greater speed of procurement, a drastic reduction of appeals and litigations, an increased quality of the procurement documents, and an overall increase in the efficiency of the working procedures of the contracting authority (Luongo, 2019, pp. 22–32). In October 2015, the OECD and the ANAC produced a document called ‘High Level Principles for integrity, transparency and effective control of major events and related infrastructures’ (OECD, 2015c). The document made an evaluation of the collaborative controls and judged it as an exemplary practice. In fact, the model was part of the OECD recommendations for the construction of the new international airport in Mexico City (OECD, 2015d), a model which was actually implemented by the Mexi- can government (OECD, 2016). The perception of success was so widespread that from being a very special procedure invented for the Expo, collaborative controls were institutionalised in the 2016 Code of Public Procure- ment and were replicated several times for other delicate cases and major procurement processes, such as the Extraordinary Jubilee of Mercy in 2015–2016, the reconstruction following a major earthquake in Central Italy in 2016, and the 2019 World University Games. In addition, the ANAC elaborated a twin practice of collaborative controls performed by administrative officials (instead of the military Unit) to be activated upon the request of public administrations. This extension was so successful that the ANAC was even forced to issue tighter constraints to access the tool because too many requests were coming from administrations that wanted their contracts checked by the authority (ANAC, 2017b). The mechanisms of collaborative surveillance This section presents the case study and builds an explanation based on three mechanisms: threat attribution, repeated interactions, and actor certification. The three subsections that follow have the same structure: the description of the outcomes to be explained, the definition of the mechanism responsible for those outcomes, and the presentation of the programme and non-programme elements triggering and supporting the mechanism. The three mechanisms are illustrated separately for the readers’ convenience, but they are to be thought of as the building blocks of a compound causal model. As will become clear, one of the mechanisms— threat attribution—is responsible for how controls were implemented (i.e., more or less efficiently), while the other two are directly related to improvements in the implementation of the Expo contracts by increasing the quality of procurement and the speed of contract execution. Threat attribution As mentioned, the law mandates that controls are limited to contracts over €40,000 and that advice should be produced within either 7 or 15 days depending on the kind of contracting document to be examined. The financial limits and the time thresholds are designed to avoid Busetti / Dente | When red tape saves time... 35 overload and excessive delays, respectively. However, the efficiency of collaborative surveillance does not lie in the way the controls are limited but in how they are implemented. The most striking outcome to be explained is the systematic anticipation of the time threshold, with remarks communicated within 4 days on average instead of the 7–15-day legal requirement (OECD, 2015b). This was not a random result but the product of a precise strategy to increase the efficiency of controls and limit the bureaucratic burden. Both the Unit and Expo Ltd. significantly over-performed; they worked almost 24/7 and soon adopted fast communication tools (such as WhatsApp or emails) instead of using the dedicated web platform. The Unit even standardised control procedures by setting up checklists and red flags that permitted the controls to be both accurate and quickly delivered. These behaviours were not to be expected. The ANAC is an independent authority with the only statutory goal of preventing corruption. Working hard for cutting time when controlling a company already in trouble with corruption is absolutely unexpected. Why the ANAC decided to care about not only performing controls but also avoiding red tape is worthy of investigation. The explanation lies in the activation of the mechanism of threat attribution (McAdam et al., 2011). In this case, cooperative behaviour is adopted because a bad implementation may se- verely harm the implementers’ self-interest (Busetti & Dente, 2018). The mechanism can be understood as a negative incentive, wherein both the programme and non-programme features signal the importance of avoiding implementation failure. These aspects are represented in Figure 2. Figure 2: Threat attribution

Source: The authors The activation of this mechanism was partly intrinsic in the nature of Expo Ltd. and does not need much explanation. The company had its own unique goal in the implementation of the Expo and—with or without controls—would have received direct blame for the event failure. Clearly, corruption scandals, media attention, an unescapable deadline, and substantial delays reinforced this mechanism. The threat to the ANAC self-interest needs further discussion. The programme feature triggering the mechanism is the provision of mandatory controls for all contracting documents. Partly, this shifted the blame for the emergence of corruption from the mismanagement of Expo Ltd. to the accuracy of the controls performed by the ANAC. In 36 International Review of Public Policy, 3:1 addition, the mandatory controls also transferred part of the potential blame for delays. As mentioned, most observers interpreted the new procedure as a source of delays, and the ANAC certainly did not want to be pictured as the bureaucrat spoiling the event. These programme features did not work alone, however. The perfect threat was created through a special combination of non-programme elements which reinforced the incentive provided by the design feature. First, the severe delays plaguing the event and the unescapable deadline for completing works demanded an exceptional effort from both the Unit and Expo Ltd. In this context, lengthening the time would have not produced ordinary red-tape inefficiencies, but a major international failure. Second, corruption scandals and constant media attention put great pressure on the Author- ity. Working on the Expo permitted to link the ANAC—a formerly unknown administrative body—to the event with the greatest saliency in Italy’s public life of those days. The Universal Exposition—its delays, scandals, future—made the news almost every day, several times a day. The ANAC was under the spotlight; it should balance accuracy and rapidity to avoid both future corruption and an immediate failure of the greatest international event organised in Italy in decades. However, a third contextual feature is decisive in understanding why an implementation failure was considered so damaging for the ANAC and the Unit. It is worth reminding that the Milan Exposition was by no means an ordinary activity for the Authority. The ANAC originated from the transformation of a previous government agency—the Independent Commission for Evaluation, Transparency and Integrity (CIVIT)—created in 2009 for measuring the performance of public administrations. CIVIT added combating corruption to its duties only in 2012 and finally changed its name in October 2013 to become the ANAC. At that time, however, the agency was completely deadlocked; it lacked a President, its board counted only three out of five legal members required, and it was under-resourced in both personnel—only 30 officials—and power, which was limited to advising public administrations in drafting their codes of conduct and anti-corruption plans. Part of the stalemate was resolved when a new President and board were appointed in March 2014 (Funzione Pubblica, 2014), but a complete transformation in powers and resources would come only two months later thanks to the Expo, which opened a window of opportunity for the development and institutionalisation of the Authority. In May 2014, when the Prime Minister announced that the ANAC was going to be involved in controlling the Expo, the President of the Authority made clear that the resources of the ANAC did not allow for such controls: new powers and personnel were needed (Monaci & Mincuzzi, 2014b). Soon after, law 90/2014 granted new powers (among which was collaborative surveillance), provided about 300 officials by merging a former public agency with the ANAC, and created the Unit. The key role of the event in the institutionalisation of the Authority is confirmed by both official documents (ANAC, 2016d, p. 17) and our interviews with the President of ANAC (Personal communication, October 10, 2016). The Expo was the first and most important test for evaluating the renovated Authority and specifically the Unit—originally titled ‘Special Operative Unit for Expo 2015’. Avoiding any possible blame for the event’s failure was then a matter of organisational survival—a goal that certainly equalled that of preventing corruption. Repeated interactions Collaborative surveillance is an interesting oxymoron. It suggests that the organisation under surveillance (Expo Ltd.) collaborated with the controller (the Unit), who played the role of a Busetti / Dente | When red tape saves time... 37 partner and tutor more than external auditor. Given the statutory goal of preventing corruption and the context of general distrust in the Expo management, this collaboration was not expected to be easily implemented. In fact, the term collaborative surveillance was coined ex post—it does not appear in the law nor in the internal regulation of the Unit. The first mention of a possible collaborative approach to controls came only in December 2014 and was coined empirically when describing the activity in the first monitoring report by the OECD (OECD, 2015). Indeed, the evolution of the relationship between the Unit and Expo Ltd. eventually led to their collaboration in terms of both their interactions and results. First, the interactions between the two completely changed over time. Imagine a special police force in charge of controlling an organisation with a procurement manager freshly arrested. The shadow of corruption loomed large over Expo Ltd. and the beginnings were hard. With some elements of caricature, Expo Ltd. describes the first exchanges as portraying a relationship more similar to ‘cops and rob- bers’ than implementation partners (Expo Ltd. Procurement Manager, personal communication, November 18, 2016). Soon, however, the ‘forced interaction’ deepened familiarity and trust and helped develop a more collaborative relationship, also testified by the use of the informal communication methods previously mentioned. Table 1: Advices, observations, and accepted observations

2014 2015 2016 2017 Total

Advices produced by the Unit 65 213 42 7 327

Observations on irregularities 44 126 26 4 200 and legal issues

Observations accepted by 36 101 16 1 154 Expo Ltd

Accepted observations / 0.55 0.47 0.38 0.14 0.47 Advices

Accepted observations / 0.82 0.80 0.62 0.25 0.77 Observations

Observations / Advices 0.68 0.59 0.62 0.57 0.61

Source: The Authors Second, and more importantly, this collaboration produced a substantive change in the quality of contracting. Table 1 reports all control activities performed for the event. It includes 174 procurement contracts that the Unit analysed, producing 327 pieces of advice (each contract comprises several contracting documents). Trends in the amount of advice and observations given by the Unit may say something about how this relationship developed. First, the quality of contracting by Expo Ltd. seemed to increase over time; in fact, the percentage of observations dropped from 2014 to 2015 and then stabilised, signalling an initial learning stage for the company. Second, the percentage of accepted observations constantly decreased with respect 38 International Review of Public Policy, 3:1 to both total observations and volume of advice. On the one hand, this can be interpreted as Expo Ltd.’s increased capacity to defend its decisions when confronting the Unit; on the other, the severity of observations by the Unit may have decreased over time. These interpretations are confirmed by interviews with the Unit members, who added that the observations on legal issues had become extremely rare over time, while most later observations tended to focus on matters of appropriateness in the use of the special powers that Expo Ltd. still enjoyed (Mem- bers of the Special Operative Unit, personal communication, October 25, 2016 and January 5, 2017; ANAC 2016c). These considerations certainly point to learning and an increased procurement capacity of Expo Ltd. The mechanism explaining such an evolution is that of repeated interactions (see Figure 3). A cooperative behaviour is adopted because implementers learn to value relations and the costs of defecting are or become prohibitive. The mechanism works best the greater the interdepend- ence of the actors and the frequency of their interactions (Busetti & Dente, 2018). Figure 3: Repeated interactions

Source: The Authors The first programme features activating the mechanism were the mandatory controls and the financial threshold. While avoiding overloading the Unit and Expo Ltd. by excluding minor contracts, the financial threshold left a considerable body of contracts to be controlled and hence produced the frequent interactions needed for the evolution of the collaboration. Dur- ing the first five months of 2015, the most intense period, the Unit produced 129 pieces of advice in 140 days, or more than one per day (not counting Sundays) (ANAC, 2015b, p. 131). As shown in Table 1, the Unit issued 200 observations on 174 contracts and Expo Ltd. accepted 154 observations during the whole period. These figures tell us two things. First, controls were neither formally applied nor circumvented. Indeed, an alternative explanation to the surprising effect of collaborative surveillance may well have been that controls were only formally applied; a symbolic policy to keep the works going. On the contrary—and this is the second point—it is exactly because controls were per- vasive and interactions frequent that the mechanism was activated. To fully appreciate the intensity of this relation, it is worth remembering that every piece of advice starts a dialogue between the Unit and Expo Ltd. To give only one example, in the first year of activity—from May 2014 to May 2015—the Unit produced 194 pieces of advice, of which 138 came with observations. Expo Ltd. did not automatically accept or refuse the observations; it elaborated 119 counter-observations, which started a dialogue that eventually led to the ac- Busetti / Dente | When red tape saves time... 39 ceptance of 99 observations (ANAC, 2015b, p. 131). This takes us to the second design feature triggering the mechanism: the fact that the comments are not binding but a refusal should be motivated. This forced Expo Ltd. to discuss the logic behind the comments and analyse the accuracy of the original contracting documents to decide whether to redraft the document or go forward and explain its decisions. This dialogue between the controller and the controlled was central to learning. However, these programme features were complemented by a fundamental contextual condition. When describing the success of collaborative surveillance in his book, the President of ANAC said that working in Milan made a significant difference for the success of what he called ‘the Expo model’ (Cantone, 2015). As further explained in a personal communication, by this he meant that the Unit had a counterpart that greatly facilitated their job (President of ANAC, personal communication, October 10, 2016). In fact, Expo Ltd. was a small organisation made up of a handful of skilled and motivated professionals. Not only were they quick to adjust to the Unit’s requirements and change their working methods, but such a small organisation was able to provide a unique point of contact with the Unit and hence help establish a direct bilateral dialogue. Briefly put, the nature of the controlled organisation was crucial to the success of the controller. Actor certification We have seen that controls were implemented quickly and that the quality of contracting increased. Although important, these results did not change the nature of preliminary controls: an additional burden that required almost half of the documents to be rewritten (see Table 1), in most cases after having produced counter-observations. In this respect, the most contradic- tory result concerns the statements from the interviews (Members of the Special Operative Unit, personal communication, October 25, 2016 and January 5, 2017; Expo Ltd. Procurement Manager, personal communication, November 18, 2016) and the scientific papers by the ANAC (Luongo, 2019), whose controls actually sped up the tendering process. In order to understand this outcome, we should redirect our attention away from the bilateral relation between the Unit and Expo Ltd. In fact, the procurement and execution of contracts depended on two other players: the contractors and the administrative judges. Both could se- verely delay and sometimes completely disrupt implementation. First, when the contracts were awarded, losing companies could appeal to the administrative court for alleged irregularities. The judgement might determine to change the contractor and the parties could respond by requiring a second trial to a second-order court. These appeals and the possible replacement of the winner could be a tremendous source of delay. Interestingly, when the ANAC entered the game, appeals—which did happen for some of the Expo 2015 contracts before—dropped dramatically, even reaching zero (Members of the Special Operative Unit, personal communication, October 25, 2016 and January 5, 2017; Expo Ltd. Procurement Manager, personal communication, November 18, 2016; Luongo, 2019). The most plausible explanation is that when adjudications were reviewed by the Unit, the losing companies considered it harder to start a judicial challenge. The same went for the administrative courts, which—if they accepted the appeals from losing companies—should have gone against what had already been reviewed and approved by the ANAC. In both cases, the procedures controlled by the Unit appeared to be ‘reinforced’. A test for the relative strength of decisions taken by the ANAC occurred right at the start, with a row over the contract for service infrastructures (the one that opened the scandals). When 40 International Review of Public Policy, 3:1 corruption emerged, the Lombardy Administrative Court received and accepted the appeal by the company ranked second in the tender assessment. The Court decided in favour ofthe company and mandated Expo Ltd. to replace the former winner, who had been accused of corruption. In the meantime, the ANAC entered the Expo procurement and proposed to subject the contract in question to a special procedure of confiscation, in which the ANAC ouldc appoint a Special Commissioner to run the works without replacing the accused company. The second- order Court eventually agreed with the solution proposed by the ANAC. Although this decision entailed a procedure different from collaborative controls, it signalled the centrality of the ANAC for the Expo procurement. No other appeals would be attempted against any procedures activated or reviewed by the ANAC. The other advantage concerned the relation between Expo Ltd. and the contractors. Interviews show that the controls and recommendations by the ANAC were used strategically by Expo Ltd. to resist pressure to use special powers and implement more discretionary tendering procedures (Expo Ltd. Procurement Manager, personal communication, November 18, 2016). Espe- cially in a case such as the Expo, where the contracting authority enjoyed wide-ranging special powers, having an external constraint could in fact be more of a benefit than a burden. A telling example comes from a dispute between Expo Ltd. and the three-time Academy Award winner Dante Ferretti, who was commissioned to do a series of statues and sculptures decorating public spaces on the event site. Expo Ltd. imposed a stricter specification of the bid by strategically using the constraints imposed by the ANAC, hence requiring a longer time to prepare the bid and eventually starting a dispute on the timely realisation of the works. Overall, by being backed by the ANAC, the ability of Expo Ltd. to resist pressures to use its special powers certainly increased (Luongo, 2019). In all the above cases, the explanation lies in the activation of a mechanism called ‘actor certification’ (Barzelay, 2007; Melloni 2013). Certification entails the validation of actors, their performances, and their claims by external authorities (McAdam et al., 2001). This takes place when an implementer is endorsed by another actor who is considered particularly worthy because of its technical skills, past achievements, political standing, and so forth (Busetti & Dente, 2018). The activation of the mechanism implies a source of certification and the recognition of the value of such certification by implementers. Figure 4 illustrates this mechanism. Figure 4: Actor certification

Source: The Authors Busetti / Dente | When red tape saves time... 41

We have already seen that implementers value certification: Expo Ltd. used it productively to resist pressure and the losing companies stopped making appeals. The source of certification deserves further analysis. The more obvious programme feature activating the mechanism is certainly the procedure of controls; it is through controls that certification is transferred from the ANAC to Expo Ltd. The second programme feature involves the composition of the Unit: police officers who take a tough ‘investigative’ approach to controls. This certainly provides credibility and hence certification well beyond ordinary administrative controls. Finally, there are three context features that need to be considered. First, the then President of the ANAC was not an ordinary bureaucrat. He was a high-flyer with a brilliant reputation and some fame for his job as a magistrate fighting organised crime. After his years in the investigative branch of the judiciary, he worked in an administrative post and began counselling governments on the topics of corruption and organised crime. He was present in the media and known to the public; a ‘legality popstar’ whose name was invoked for almost all kinds of public posts, from mayor to President of the Republic (Fattorini, 2017). Second, at the time of the Expo, the ANAC and its President enjoyed a very special political backing directly from the Prime Minister. Not only was it the Prime Minister himself that had appointed the President of the ANAC and decided to involve the ANAC in controlling the Expo, but throughout his mandate, whenever it came to listing the results of his government, he mentioned the ANAC on almost all public occasions, always presenting the Authority’s activities as best practices. It was no coincidence that when invited to dine at the White House for the last state dinner of President Barack Obama, the Prime Minister took with him a small group of ‘Italian excellences’, among whom were the President of the ANAC (Martini, 2016). Finally, the ANAC actively searched for external endorsement by signing a Memorandum of Understanding with the OECD. This was meant to produce technical feedback on collaborative surveillance through the periodic monitoring of its implementation and effects. Clearly, it was also a tool to increase the recognition of the ANAC as a reliable player. The Authority was new and was implementing a completely innovative procedure for controls. In this respect, the involvement of the OECD worked as a quality assurance for the system: a certification of the certifier. A unique experiment? Collaborative controls were immediately replicated and eventually institutionalised in 2016, when they were incorporated into the Code of Public Procurement and the Unit became permanent. Already in August 2015, the government decided to extend the collaborative surveillance to the procurement process for the Extraordinary Jubilee of Mercy to be held in Rome between 2015 and 2016 (ANAC, 2015a). In 2016, three applications followed: the regeneration of a large industrial area in Naples (Presidenza del Consiglio, 2016), the reconstruction following a major earthquake in Central Italy (ANAC, 2016a), and a selection of procurement contracts of the city of Reggio Calabria, which was considered at risk of pressures by organised crime (ANAC, 2016b). In 2018, the controls were applied to the contracts of the 2019 World Summer University Games (to be held in Naples) and to those for the Italian pavilion and related events for the Expo Dubai 2020. These cases have much in common. Most of them apply to special events managed by contracting authorities that have the liberty to implement out-of-the-ordinary procedures and have 42 International Review of Public Policy, 3:1 an exceptional budget. Some even share a similar context of corruption scandals and lack of trust in the public administration: the Jubilee followed a corruption scandal that gained in- credible media attention, while earthquake reconstructions have a history of mismanagement and easily generate public alarm. Although these replications appear as a homogeneous selection, similarities should be evaluated in causal terms—i.e., by examining whether the original mechanisms apply outside the special context of the Expo and whether some elements can work as the functional equivalents of those that are necessary but missing. In the remainder of the section, we will analyse the three mechanisms in turn. Threat attribution is difficult to replicate with the same intensity as at the Expo. The constant media attention enjoyed by the Universal Exposition and the continuous debate over the delays that were going to spoil the event have no equal in subsequent applications. Similarly, by being the first experiment of collaborative controls, the Expo certainly enjoyed additional commitment and held symbolic value for the ANAC, thereby increasing the threat of a possible failure. However, most replications have something in common that may help conserve the mechanism and reinforce the effect of design features. Most cases require a quick delivery, either because they have a proper deadline (the World University Games, the Jubilee, or the contracts for the Dubai Expo) or because they are known to the public and delays will periodically catch media attention (the post-earthquake reconstruction and partly the regeneration of the industrial site in Naples). These conditions may constitute an important incentive for the Unit to deliver their advice quickly. In fact, in a simplistic interpretation of controls, newspapers attributed delays to the supposed bureaucracy of the ANAC, hence transferring the responsibility from the contracting authority to the Unit, which produced an incentive to maintain the initial performance (e.g., Gentile, 2018). Indeed, if one looks at the Unit performance data in 2018 (when controls on the Expo contracts ended) against an increase in the volume of advice, the Unit kept delivering controls within 3 days on average, well below the legal requirement (ANAC, 2019, p. 264). However, the same argument does not apply to the contracting authority. In fact, the lack of exceptional contextual conditions pertaining to the Expo—daily media attention, a procurement manager arrested, a single-task organisation, a truly inescapable deadline—may have been irreplaceable. For the contracting authorities, in fact, ex-ante controls may even have diluted responsibility and hence hindered the timely implementation of procurement documents. One possibility would have been to design a transparent system for monitoring procurement, which may have helped attribute responsibility and create some threat. As discussed below, however, this should have been complemented with an organisational structure that clearly identifies responsibilities within the contracting administration. If not, transparency may have been of little use in ‘threatening’ the contracting authority. The mechanism of repeated interaction is possibly the most fragile. In the sourcecase, learning and the increase in the quality of contracting derived from the frequency of interaction coupled with a specific capacity of the contracting authority—i.e., its ability to adjust to the Unit’s requirements and actively examine how to redraft contract documents. Concerning frequency, one may only need to be careful in selecting a number of documents to ensure frequent interactions without overloading the Unit and the controlled administration. This is an example of a programme feature that can easily ‘travel’ across cases but may need some simple fine-tuning, such as a re-modulation of the number of contracts exempted from controls. However, the main difficulty with recreating repeated interactions consists in the characteristics of the controlled administration. Small, competent, and committed bodies which concen- Busetti / Dente | When red tape saves time... 43 trate all procurement decisions are not easily found; the exception are perhaps truly special events, such as the World University Games, which seem to reproduce the same interactions found in the case of the Expo (ANAC, 2019). For the Jubilee of Mercy and the post-earthquake reconstruction, these conditions were not met. The Jubilee was managed by a special office within the Rome municipality, which only had coordination functions but no contracting power. Furthermore, the earthquake involved four regions, different regional offices for coordination, and several contracting authorities at the local level. The fragmentation of responsibilities resulted in a major change in the performance of collaborative controls, decreasing the ability of the Unit to influence the contracting and generate learning (members of the Special Op- erative Unit, personal communication, October 25, 2016 and January 5, 2017; ANAC, 2018, 2019). In redesigning controls, the ANAC should consider the capacity of the controlled bodies and fine-tune future controls by ensuring they have the appropriate characteristics for triggering repeated interactions and hence learning. This is obviously difficult. For each new collaborative surveillance, the ANAC signs an agreement establishing the rules of conduct and specifying how communication should be managed between the Unit and the controlled administration. These agreements may vary, but functional equivalents that are easy to imagine—such as the concentration of responsibilities for all procurement—may face obvious resistance and may be difficult or simply impossible to impose (as in the case of an earthquake affecting multiple regions). However, the Unit should examine these issues carefully when activating new controls, discuss them with the controlled administration and—when possible—avoid cases where no learning is to be expected. This is important, since the quality of the procurement does not depend only on the review done by the Unit or on the rate of acceptance of observations but also on the contracting authority which actively works in drafting and correcting documents. Finally, certification is the mechanism more easily conserved across changing circumstances. The ex-ante controls by an investigative military unit will certainly keep providing some certification notwithstanding the context. In addition, although they cannot be assumed as constant, all the non-programme features supporting the mechanism can be controlled by the ANAC. In the case of the Expo, these features included the profile of the President, the direct political backing, and the collaboration with the OECD. During the Expo, ANAC’s reputation was at its peak: it had the strongest political support ever and kept increasing in notoriety by being involved in all the difficult cases of the government of that time (e.g., a major bond mismanagement by banks and the corruption scandal over the project of flood barriers for the Venice Lagoon). This honeymoon effect is typical for new agencies but does not last (Boin & Christensen, 2008). The analysis provided here suggests that maintaining reputation should be a central worry for the Authority not simply as a general resource, which is always good to have, but precisely for maintaining the effectiveness of collaborative controls. In the absence of spontaneous support, the ANAC should search for functional equivalents to balance the possible decrease in reputation. This search may entail finding new allies in a way similar to what was done with the OECD—i.e., ensuring its decisions obtain the endorsement of external actors. One example of this strategy is the implementation of the 2016 Code of Public Procurement, wherein the ANAC was in charge of providing guidelines for implementing several parts of the Code. In issuing such guidelines, the ANAC always asked the ‘Consiglio di Stato’ (the highest Administrative Court) for its judgement and counsel (ANAC, 2017a). This is not only a way of avoiding turf wars but also another form of certification of the certifier. 44 International Review of Public Policy, 3:1

Conclusions As suggested by extrapolation-oriented studies, an attention to the causal mechanisms is fundamental for explaining how outcomes are produced. The risk of spurious attribution, the overestimation of the power of designs, or reducing the entire explanation to very special contextual conditions are typical problems in understanding policy success. An explicit focus on the causal mechanisms may help identify which features are relevant and how they combine to produce outcomes. This knowledge is the starting point for both reforming and designing programmes. It cannot be used for understanding typical cases or to explain average dynamics—i.e., how corruption controls usually work. Instead, it provides a model for future applications embodying the same mechanisms. Although variation across cases is commonplace, having a causal model of the programme is a starting point for designers in the search of reproducing the same outcome obtained in the original exemplar. It serves for both estimating the prospects for ‘conserving’ mechanisms across cases and (re)designing in the face of changing circumstances. Concerning the first point—the portability of mechanisms—there can be cases of complete contextual dependence, cases so special that they work only at a specific time and place. How- ever, notice that we presented a very special case: a major corruption scandal, a unique mega- event, a brand-new anti-corruption authority, and a pilot system of controls. Nevertheless, the lessons from this case are not limited to the Expo. Not only there is a ‘subpopulation’ of cases where the original causality is maintained (notably, the World University Games or future Ex- pos), but some variation is tolerable and does not impede the replication of positive outcomes. The second point follows suit. The applicability of these mechanisms is not entirely ‘natural’; it is partly a matter of design. Future applications may require the introduction of functional equivalents, disregard some of the original elements or fine-tune designs to changing circumstances. This redesigning may be costly and sometimes impossible, but unless designers have a proper causal model of the original exemplar, they do not even have a starting point. Having a clear picture of the causality of the programme is the only way to reproduce the same outcomes in different places and across different target populations instead of surrendering to context dependency. In conclusion, three complementary paths for future research should be mentioned. One is the need to ’discover’ new mechanisms with the ambition of building a catalogue that may enrich the designer’s toolkit. This is no easy task. As observed by one reviewer, this research agenda has surfaced intermittently during the last two decades but without significant innovation in the mechanisms used by researchers. The reasons for this lack of success are hard to pinpoint, but some suggestions can be put forward. Discovering new mechanisms requires empirical investigations based on research-intensive case studies that take an extrapolative orientation towards explaining relevant outcomes. This search demands for specificity in identifying both the causal elements composing the hypothe- sised mechanism and their interaction into consistent causal configurations. This has not been done so far, or at least not enough. Instead, references to mechanisms have been rather intuitive or metaphorical, in some cases providing labels for causal processes that remained largely unspecified. The very definition of mechanisms is uncertain and not yet established, with scholars suggesting examples as varied (and ambiguous) as power (Rueschemeyer, 2009) or coordination (Falleti and Lynch, 2009). Busetti / Dente | When red tape saves time... 45

Such problems may have prevented a wider appeal of the mechanisms’ agenda, and the suggestion can only be to work for greater rigor and specificity in opening the black box of those causal processes that are to be labelled as mechanisms. Notice, however, that there is no theoretical justification for mechanisms to be large in number. Actors in policymaking, implementers and target groups do not change their behaviour in response to policy for an infinite number of reasons. The design elements triggering be- havioural change may certainly be vast in number and varied in nature, but the underlying causal mechanisms need not be. Therefore, a second path for future research is to deepen our knowledge of the several ways by which different design elements may trigger mechanisms, both old and new. Finally, the third path is methodological. There are specific methods, such as process tracing, that promise to identify mechanisms in a rigorous way. These methods may help in identifying the design elements triggering change and in understanding the causal model to be reproduced in future applications. Unfortunately, however, we do not have any guidelines on how designs can be adjusted across cases–i.e., when and how to introduce functional equivalents–or when new cases are to be considered unfit to the replication of a certain mechanism. A similar investigation would be of great use to those who want to learn from existing programmes with the purpose of designing new ones.

Bibliography

List of interviews • Special Commissioner for the canal system of the Expo, December 20, 2016 • Special Commissioner for the service infrastructures of the Expo, December 15, 2016 • President of the ANAC, personal communication, October 10, 2016 • Members of the Special Operative Unit, October 25, 2016 • Members of the Special Operative Unit, January 5, 2017 • Expo Ltd. Procurement Manager, November 18, 2016

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Protecting Rights in the Policy Process: Integrating Legal Proportionality and Policy Analysis

Mordechai Kremnitzer Professor Emeritus, Senior Fellow Center for Democratic Values and Institutions and Center for Security and Democracy, Israel Raanan Sulitzeanu-Kenan Associate Professor, School of Public Policy, The Hebrew University of Jerusalem, Israel

Abstract This paper provides an integrative analysis of legal proportionality and policy analysis, and identifies the inherent potential of integrating the proportionality principle in policy analysis for enhancing the protection of rights in the policy process. Our analysis entails three key recommendations: (1) Mandating the inclusion of a rights-impact criterion in policy analysis in order to increase the likelihood that the three proportionality tests will be addressed; (2) The professional norm of considering several distinct alternatives serves the normative requirement of the necessity test and facilitates the mitigation of rights restrictions through the comparison and modification of the alternatives; (3) Requiring policymakers to present the factual basis for the undesirable phenomenon in the course of judicial review of the policy goal. Such integration of policy analysis and proportionality can streamline the consideration of fundamental rights in the policy-making process and consequently increase their protection. Adopt- ing these practical measures may substantially assist courts in identifying ways to implement judicial review, while respecting the discretion of policymakers. Finally, these proposed practices are expected to fine-tune the incentive structure of policy-makers for conducting quality policy analysis while protecting human and civil rights.

Keywords policy analysis, civil rights, proportionality 52 International Review of Public Policy, 3:1

Introduction Policy analysts often face conflicts between the need to promote desirable policies and the apparent need to apply harmful measures in doing so. One such type of conspicuous case has come to light in recent years as governments in the US and Europe have faced tides of illegal immigrants and refugees. Take, for example, the US government’s practice of separating illegal immigrants from their children. In trying to stop the flow of migrants illegally crossing the border from Mexico to the US, the US administration has begun separating children from their families as a means of deterring future potential immigrants (Hirschfeld Davis & Shear, 2018; Scherer & Dawsey, 2018). While the purpose of the policy (enforcing immigration policies) may be legitimate, its implementation entails severe infringements of human rights. Thesemeans may be scrutinized from the perspective of policy analysis and the policy-making procedure: Was the immigration problem properly specified and defined? Were other alternatives evaluated and weighed against one another, taking into account their deterrent effect? A jurist may, on the other hand, examine the constitutionality of the means chosen and consider whether the infringements involved are proportional to the policy objective of deterrence. However, it is worth considering that these two realms are not as separate as one might think. This article provides an integrative analysis of the relationship between legal proportionality and policy analysis. We propose that it is necessary to break through the current divide between the two fields and to forego the view that proportionality is handled exclusively by courts and policy analysis by policy analysts. Instead, policy-making should and can be conducted in a way that facilitates the proportionality doctrine, while the latter is adapted to the unique goals and practices of policy analysis. Such integration of proportionality in policy analysis can streamline the consideration of fundamental rights in the policy-making process and consequently increase their protection. We further suggest that the proposed integration of proportionality in policy analysis may complement the limitations of courts in performing judicial review of policy, by offering courts procedural criteria, in addition to the often contested substantive criteria. The analysis presented in this paper complements existing studies of ‘constitutional dialogues’ (Fisher, 1988, Hogg & Bushell 1997, Stone-Sweet, 2000, Hiebert, 2006), which describe institutional processes that stem from potential and actual judicial rulings regarding the constitutionality of legislation (Stone-Sweet & Mathews, 2019, p. 128) and their political implications (ibid, p. 135). Such studies take a descriptive approach and focus on the institutional dynamics across different systems. The current study, on the other hand, takes a normative approach to identify specific ways of applying the proportionality principle in policy analysis, and the normative implications of these processes for judicial review. We draw on existing methods of policy analysis and legal principles and follow a normative approach in the sense that we aim to enhance rights protection in the policy process. The implications of this paper delineate clearer and more effective roles for both the legislative and executive branches of government in the protection of rights in general, and with respect to proportionality analysis in particular. These analyses and consequent proposals are appli- cable both in systems where constitutional courts are veto players (e.g., Germany), as well as those in which parliaments maintain the enforceability of a statute after a court has found it to have violated a constitutional right (e.g., Canada, UK and New Zealand)1.

1 — The aim of this paper is not to replace judicial review by integrating proportionality into the policy process, but to improve the protection of rights by integrating proportionality in the policy process, and to offer more concrete specifications for judicial review of policy. In parliamentary democracies where the final determination is made by parliament (dominated by the government), enhancing the role of policy analysis in protecting rights is expected to be even more important. Kremnitzer / Sulitzeanu-Kenan | Protecting Rights in the Policy Process... 53

The article begins with a brief presentation of the two domains: the first section outlines constitutional proportionality and the second section delineates policy analysis. Next, we review key differences between the practice of judges and that of policy analysts, with the aim of designing the stages of policy analysis in a manner that suits its unique characteristics. Drawing on these foundations, we propose broad guidelines for a normative model of policy analysis that accommodates the requirements of proportionality. Lastly, we consider and discuss the implications of this potential development in policy analysis for the practice of judicial review of public policy. Proportionality The proportionality framework is a prominent legal doctrine in many democratic societies for resolving conflicts that often arise between public objectives and individual constitutional rights that may be restricted by the policy (Alexy, 2010; Beatty, 2004; Kumm, 2007; Petersen, 2013; Stone Sweet & Mathews, 2008). Using the proportionality framework, judges determine whether, and to what extent, individual rights can be restricted for the sake of promoting or protecting various public interests. In recent decades proportionality has become a central tenet of global constitutional law and a defining element in the protection of human rights (Beatty, 2004; Hurka, 2005; Jackson, 2004; Sulitzeanu-Kenan et al., 2016). Proportionality analysis is a sequential set of legal decision-making stages: two preliminary stages and three integral stages of the process itself (Alexy, 2010; Kumm, 2007). The first preliminary stage – infringement of rights – involves an assessment of whether the policy in question entails a potential infringement of constitutionally protected rights. The second preliminary stage – goal-worthiness – examines the worthiness or legitimacy of the goal or interest that the policy seeks to promote. Unworthy reasons for limiting constitutional rights may include sectarian, sexist, homophobic, and racist preferences. More generally, this stage may facilitate an assessment of whether the infringement of the right is deliberate, or an incidental consequence of policy implementation (Kumm, 2007). The first integral decision stage of proportionality analysis – suitability – examines whether the measures adopted to further a policy are rationally related to the stated policy objective – i.e., the worthy goal. In other words, suitability is a minimalistic standard of effectiveness, as it requires assessment of whether the policy measure sought is expected to promote the policy objective. The second integral decision stage –necessity or least restrictive means (LRM) – examines whether the policy measure entails the minimum violation of rights necessary. Thus, if an alternative means can attain the policy goal to the same or a similar degree with a lesser infringement of rights, the alternative means must be preferred. Finally, the third integral stage of proportionality analysis – balancing (or strict-sense balancing) – is implemented if the policy means satisfies the previous tests, and it assesses whether the benefits of the policy justify its costs in terms of rights infringement. In other words, it requires an appropriate relationship between the marginal utility gained by promoting the policy goal and the marginal harm to individual rights expected from implementing the policy. The stages of proportionality analysis structure decision-makers’ discretion and bolster a culture of justification (Cohen-Eliya & Porat, 2013) – the notion that government actions must be factually and morally justified in order to be legitimate in general, and in adjudicating rights considerations in particular. However, the existing literature provides little guidance as to the exact methods of doing so, thus leading to a practice that separates policy analysis from the ‘in-house’ rights review (Stone-Sweet & Mathews, 2019, p. 135). This separation is further 54 International Review of Public Policy, 3:1 exacerbated by the fact that the former process is conducted by policy analysts while the latter is performed by legal advisors. We argue that sufficiently detailed methods of rights consideration within policy analysis is lacking, and that this lacuna perpetuates the perspective of rights considerations as peripheral to policy analysis and arguably limits the potential for identifying policy alternatives that are less restrictive of rights. This state of affairs may often result in an exercise in rationalisation rather than reasoning. Legal advisors may offer ex-post justification for almost any decision, even one that was not arrived at through a process of ex-ante analysis and consideration. Furthermore, a better understanding of how rights considerations can be implemented in policy analysis offers better guidance to the conduct of judicial eviewr of policy. Hence we propose a model in which the question of justification – in light of proportionality analysis – is integrated within the process of policy analysis rather than after the fact. Within such a model, the role assumed by the court in judicial review of a policy is to consider the substantive policy, but also the quality of policy analysis, thus providing clearer and more practical guidance to policy analysts. Proportionality and Policy Analysis Proportionality provides a structured evaluation of whether a particular policy can be justified on the basis of public purposes that are appropriate in a liberal democracy (Kumm, 2010). This central characteristic of proportionality stems from the underlying notion that infringement of rights is permissible only if a persuasive justification can be provided. The proportionality tests seek, on the one hand, to identify and specify this justification and, on the other hand, to locate possible inferential failures in this justification, which may lead to the infringement of rights. Such failures may relate to the precise definition and delineation of the policy goal, in an empirically grounded fashion, or to a comparative examination of alternatives and the nature of the effective evaluations of these alternatives. Thus, proportionality includes basic elements of policy evaluation (Kumm, 2010, p. 150). Policy analysis Policy analysis is a complex, multistage process whose full description is beyond the scope of this article. This section will present a concise overview of appropriate policy analysis so as to facilitate the development of the discussion below regarding the relationship between policy analysis and the characteristics of the proportionality doctrine, both during the formulation of policy and in the course of judicial review. A policy-making process is generally motivated by the identification of someundesirable phenomenon (Dery, 2000). Such a phenomenon is defined as some harm to public welfare in a broad sense, whether material or abstract. The harm may reflect a failure to realize potential or a missed opportunity to improve social welfare, such as failing to use solar radiation to produce energy in circumstances where solar radiation and available technology provide the conditions for doing so. Establishing that an undesirable phenomenon exists requires a thorough study of the quantitative and qualitative aspects of the phenomenon and its various dimensions (Bardach & Patashnik, 2019; Weimer & Vining, 2010).2 One example of an undesirable phenomenon is road congestion. A first step in addressing such a phenomenon is to examine its implications, both direct and indirect. For example, in addition to causing traffic delays, road congestion impedes economic productivity due to the loss of working hours, and increases

2 — We acknowledge that a policy problem is the product of an interaction between reality and perception and that what is deemed undesirable may be a matter of political conflict. However, we address policy problems perceived as such within a given society or epistemic community (Haas, 1992). Kremnitzer / Sulitzeanu-Kenan | Protecting Rights in the Policy Process... 55 exposure to air pollution and psychological stress, which entail adverse health consequences. Establishing this factual basis makes it possible to assess, primarily, that the undesirable phenomenon is real. Widespread unfounded misconceptions regarding various undesirable phenomena may sometimes stem from moral panic (Cohen, 2011; Goode & Ben-Yehuda, 2009), often exacerbated by disproportionate media coverage of particularly dramatic and alarming events. Such events attract excessive attention, while questions regarding their actual preva- lence, likelihood of recurrence, or relative severity vis-à-vis other social problems, are often disregarded. For example, tremendous media attention paid to traffic accidents in Israel over the years has led to an inflated public perception that this social problem constitutes a ‘national scourge’. Yet, based on comparative measures, the risk of death in a road accident in Israel is among the lowest in the world (World Health Organization, 2015; OECD, 2017). Therefore, a preliminary requirement of appropriate policy analysis is to ascertain the factual basis of the existence and scale of an alleged undesirable phenomenon.3 In this preliminary stage, it is also necessary to perform an initial assessment of whether the undesirable phenomenon can be addressed by non-governmental measures, either in order to avoid excessive government intervention in society and the economy, to mitigate negative externalities (Weimer & Vining, 2010), or to prevent infringement of rights. As we elaborate below, establishing the factual evidence of the existence and magnitude of the undesirable phenomenon also serves the goal-worthiness test of proportionality analysis. This process can establish whether addressing the alleged undesirable phenomenon indeed constitutes a real social need, rather than a populist initiative which may serve no clear purpose, or an alternative purpose that does not warrant the rights infringement (Roach, 2015). Once the existence and scale of the undesirable phenomenon have been established, policy analysts must define the policy problem whose solution is expected to lead to a significant mitigation of the phenomenon (Bardach & Patashnik, 2019; Dery, 1984; Reich, 1988). For example, when considering road congestion (the undesirable phenomenon), one may define the problem as one of insufficient infrastructure, thus leading to a particular set of policy alternatives, whereas problem definitions such as ‘concentration of demand for road-use during peak hours’ or ‘inadequate use of public transit’ would lead to different sets of policy alternatives. Estab- lishing a causal link (even if uncertain) between the solution to, or mitigation of, a problem and an expected reduction in the scale of the undesirable phenomenon is an important consideration in choosing between alternative problem definitions. Moreover, such a process of problem definition may help in avoiding policy alternatives whose intended aims depart from the declared policy goal. Defining the problem whose resolution can be expected to reduce the undesirable phenomenon efficiently is followed by formulating policy alternatives. A policy alternative is a course of -ac tion that is meant to reduce the undesirable phenomenon, and which coheres with the problem definition. For example, alternatives such as adding lanes and intersections mayminimize the undesirable phenomenon when the problem is defined as insufficient infrastructure, whereas the alternative of staggered work hours for different sectors or geographic areas, in order to reduce peak traffic congestion (Henderson, 1981; Arnott et al., 2005), would accord with the definition of the problem as the concentration of the demand for road use.

3 — Note that establishing the existence and scale of the undesirable phenomenon involves a value judgment regarding how public welfare is measured (e.g., the value of human life, economic utility, or more abstract values such as equal- ity). Therefore, these values should be stated explicitly. 56 International Review of Public Policy, 3:1

Appropriate policy analysis requires a conscious effort to identify several alternatives. The identification of alternatives relies on individual and group creative thinking and on learning from past experience – both domestic and international – through various consultation processes. The process of developing alternatives should be separated from the evaluation stage. These methods help policy analysts to overcome known obstacles to creativity, such as a fixa- tion on standard solutions. Other obstacles to creativity are often related to a sense of urgency, whether justified or not, that accompanies policy-making. In order to minimize the harm that a sense of urgency could wreak on the quality of policy, it is sometimes desirable to develop alternatives aimed at ‘buying time’ and/or collecting information in order to provide a temporary response in the short-term, while creating conditions conducive to formulating optimal long-term policy (Hammond et al., 2015).4 The next stage of policy analysis includes a comparative evaluation of the alternatives and consequent selection of the optimal one. The alternatives are evaluated against a set of criteria or considerations. One central criterion is effectiveness – the degree to which an alternative is expected to mitigate the undesirable phenomenon. Additional criteria to be included should reflect various dimensions and consequences of the alternatives, such as cost, technological feasibility, externalities, and ramifications in terms of various values, including constitutional rights. After formulating a set of criteria, each criterion must be assigned a relative weight, as there is no reason to expect all the criteria to be of equal importance. Evaluation of alternatives must be based on the best evidence available to the policy analysts, including: scientific knowledge; past experience, whether domestic or international, in implementing similar policies; pilot programs; and any other reliable source. On the basis of this evidence, each alternative should be evaluated based on each criterion, in a process that is as clear, explicit and logical as possible. Subjective judgment should be used only where it is necessary (e.g., where direct evidence is lacking) – and be recorded as such. After the alternatives have been evaluated, the aggregate valuations of each alternative based on the weighted criteria are compared, and the alternative with the best overall score is selected. This description of policy analysis is generic, in the sense that it can be implemented for a wide variety of policy problems, including those that have no impact on rights. This article aims primarily to point out how systematic policy analysis can be integrated with an explicit normative position regarding the protection of rights in policy formulation, as reflected in the principle of proportionality. The next section presents this integration. Integrating Proportionality and Policy Analysis The current professional separation between legal proportionality analysis and policy analysis hinders the implementation of proportionality by policy analysts and consequently diminishes their practical capacity to perform their duty of protecting rights, alongside legal advisors and courts. This predicament may lead policy analysts to assign insufficient weight to rights -con siderations in formulating policy recommendations and therefore to choose alternatives that unduly infringe civil rights. Moreover, this separation denies the courts clear guidelines for effective judicial review of theprocesses that have produced a particular policy. In this section, we identify the potential relationships between policy analysis and legal proportionality, as applied by judges. At the outset, we consider the different characteristics of the two functions – adjudication and policy formulation – in order to identify ways of integrat-

4 — However, one should consider the unintended implications of temporary measures, inter-alia for the protection of rights (see: Motsenok et al., 2020). Kremnitzer / Sulitzeanu-Kenan | Protecting Rights in the Policy Process... 57 ing the proportionality tests within policy-making processes, and to delineate the appropriate expectations and demands of policy analysts that courts should apply in judicial review pro- ceedings. We begin by pointing out some key distinctions between policy analysis and judicial review; next, we examine how an integrated analysis of these activities enables us to identify ways of facilitating the protection of rights in policy-making, and to illustrate how a better judicial understanding of well-conducted policy analysis can improve the judicial review of policy. Policy Analysis and Judicial Review Alec Stone Sweet argues that ‘governing with judges also means governing like judges’ (Stone Sweet, 2000, p. 204), suggesting that policy-making and legislative processes in countries that employ judicial review are affected by the way that courts evaluate policy. This argument rests on the prevalent assumption that, in order to satisfy legal requirements, a policy-making process should emulate ex ante the way in which courts conduct judicial review of policy. Further- more, policy-makers rely on legal advisors, who naturally draw on what they are familiar with, i.e., how judges operate when they review policies. This naïve approach of emulating the court appears even more inexorable in the absence of a specified method for applying proportionality in the policy process. Yet, despite the obvious need of policy analysts to consider the process of judicial review, this does not entail that they should mimic the methods used by judges. Our main argument is that, given the differences between policy analysis and judicial review, the concept of proportionality analysis should be implemented differently in the two domains in order to achieve more effective and streamlined protection of rights. The differences between thetwo processes include the order of the steps involved, the way the proportionality tests are implemented, and their relative importance. It should be noted that this article is not intended to outline a procedure that will guarantee success in passing judicial review (that would require a very different text), nor are we concerned here with ex-post justification of policies. Rather, we are at- tempting to integrate proportionality analysis within policy formulation throughout its stages. The first difference between the two processes pertains to their goals. Policy analysis seeks solutions to public problems, whereas the goal of judicial review is to guarantee protected values and rights. Thus, while policy analysis may be carried out in contexts where there is no potential infringement of rights, as well as in circumstances where rights are involved, an infringement of a right is a primary and necessary condition for initiating proportionality analysis in judicial review. Relatedly, judicial review is dependent on a petition to the court and judicial proportionality decisions tend to be ad-hoc in nature (Beatty, 2004), focusing on the case in front of the court. Notably, only a small proportion of cases in which a right is violated are reviewed by courts, even under a liberal approach to standing rights (Felstiner et al., 1980). On the other hand, policy analysis must consider the question of proportionality of potential infringements of rights, even in the absence of any court proceeding, and well before any right is violated. These differences suggest that policy decisions affect the quality of life of millions far more pervasively than does judicial review of policy; thus democracy and civil rights are better served when proportionality is incorporated into the policy-making process than when it is merely a way of judging faulty policy after the fact. For these reasons, it is important to specify a method and guidelines for the evaluation of rights infringements in the policy process. Second, given their divergent goals, judicial review and policy analysis also differ in their main criteria. In judicial review the dominant criterion is whether an infringement is justified, whereas in policy analysis it is whether the policy is effective and efficient in achieving 58 International Review of Public Policy, 3:1 its goals (Kumm, 2010, p. 150). For policy analysts, effectiveness is the initial motivation and the essence of the analysis. They are guided by the question of whether the chosen means can substantially mitigate the undesirable phenomenon. From a policy-analysis perspective, rights infringements are usually considered by-products and – where an obligation to uphold rights exists – as an undesirable by-product. In judicial review, infringement of a right and justification of the infringement take centre stage, while in questions of policy effectiveness, judges tend to defer to policymakers (see: Steiner et al. 2020, p. 568, who review the practice of apex courts in six countries). Thus, the objectives of policy analysis are broader and more diverse, even when the policy in question involves violations of rights. A full and precise specification of the undesirable phenomenon, followed by the most comprehensive identification possible of causes and problems, are the central, most important elements of policy analysis, yet they are not part of judicial proportionality analysis. Third, proportionality analysis conducted by courts differs from policy analysis in its timing, and consequently in the scope and type of considerations involved. Policy analysts evaluate policy measures and their potential infringement of rights ex ante, while courts adjudicate these policy measures ex post. Furthermore, policy analysis is a continuous process and proportionality may be applied throughout the process, while judicial review applies proportionality in a limited timeframe. This distinction points to an important advantage of applying the proportionality principle in policy analysis, as it provides a process that can be adaptive to changing circumstances. For example, in 2014 the Israeli Supreme Court reviewed the government’s policy regarding individuals, mostly African refugees and economic migrants, who entered the country illegally. This policy was intended to discourage future attempts at illegal immigration into the country by restricting the rights of those who managed to enter the country. However, since border control has significantly improved over time, the court suggested that the policy should be re-evaluated given these changing circumstances, which rendered the infringement of the immigrants’ rights less justifiable (HCJ 7358/13). When courts evaluate the proportionality of a particular policy measure, they do not consider its merit or efficiency (Kumm, 2010, p. 150), except in extreme cases of overt unreasonable- ness. In contrast, policy analysts are tasked with meticulously identifying and selecting the best policy measure, primarily in view of its effectiveness. This means that the considerations that play the most important role in policy analysis receive much less attention in judicial review. Courts consider effectiveness and efficiency against a minimum threshold of suitability for achieving the policy goal, as well as in the more comprehensive evaluation that is part of the final balancing test. Considerations of administrative expediency are not central to judicial review (e.g., see: Stacey, 2020, p. 250 [South Africa], Steiner, 2020, p. 350 [Israel]), whereas they may have great importance in the evaluation of policy alternatives. Policy consistency is addressed by courts mainly when inconsistency raises particular concerns, such as discrimination, or when it may indicate that the explicit policy goal masks another, covert purpose (Pe- tersen, 2014a, 2014b). Legitimate priorities that might be critical to the policy-making agency, or even to the government, may not concern the court in its proportionality analysis. Constitutional judicial review thus reflects a certain minimum threshold that a policy program must meet, while the expectations of policy analysis are different and much higher. Policy analysts are expected to attain the optimal aggregate outcome based on many derivative tasks and projects and are required to allocate resources efficiently among these tasks. The court, on the other hand, typically reviews a particular policy program with regard to one central criterion – the justification of an infringement of a right. This difference is analogous to maximizing an Kremnitzer / Sulitzeanu-Kenan | Protecting Rights in the Policy Process... 59 average score across a set of tasks (the administrative utility function), as opposed to requiring a passing grade on one particular task (the judicial requirement). Hence it would likely be detrimental to the quality of policy if analysts were to adopt the judicial implementation of the proportionality tests. For example, when the suitability of a policy measure for advancing a policy goal is evaluated in the context of judicial review, judges merely examine whether the measure is expected to advance the goal, leaving aside the level of effectiveness and the likelihood of the desired effect. In contrast, we expect policy analysts to identify the course of action that is most likely to promote the goal in the most effective way. In the same vein, in applying the necessity test, courts assess whether there is a similarly effective alternative that involves a lesser infringement of rights. They do not ask whether the chosen alternative is themost effective, as this is not their role. It is clearly the task of policy analysts to identify the best policy alternative, not merely one that passes the minimal constitutional requirement. We elaborate on these requirements in section 4.2. Policy analysis is also procedurally distinct from judicial review. The court evaluatesone policy alternative only – the one already chosen and adopted by the legislature or executive branch. On the other hand, when policy analysts assess a particular plan, it is just one of several alternatives, as yet undecided upon. There is a difference between assessing a pre-selected alternative and one that is currently being considered. Policy analysts seek to specify the best and most suitable plan, given reasonably available resources. Therefore, they value the possibility of considering an alternative and of modifying, discarding or replacing it with another. An adequate method of policy analysis may involve dimensions stemming from its open, often unstructured nature, which cannot be part of an ex-post judicial review, as the judicial review begins after the policy-making process has ended and a particular policy plan has been chosen. A further distinction between policy analysis and judicial review stems from the different capabilities, experiences and qualifications of the agents involved. Policy analysts have several advantages in terms of carrying out the function of selecting policy goals, as well as specifying and evaluating the appropriate means of achieving them. They are much more qualified for, and experienced in, gathering information and conducting various assessments – technical, economic or social – whether independently or by hiring experts. In contrast, legal interpretation is clearly the domain of the judicial branch, which is more experienced and has more training in formal value judgment than other branches (Roach, 2015, p. 410-411). The ‘division of labour’ between policy-making and judicial review must take these differences in qualifications into account. Inasmuch as courts rely on policy analysis conducted by the executive and legislative branches regarding the first two tests – selecting and specifying a worthy goal, and identifying a suitable policy measure to promote it – and given the latter’s superior ability to assess them, it is important that policy analysis is adequately carried out. Appropriate policy analysis, as we shall demonstrate below, offers a method in which the proportionality tests can receive a more thorough and comprehensive handling than courts can usually offer. Better acquainting judges with policy analysis may assist and guide them in the process of judicial review. Such an approach infuses practical content into the distinction between the role of judicial review – which is limited to the evaluation of decisions – and the role of policy-making. Understanding that a policy may involve infringement of rights, combined with awareness of the fundamental differences between policy analysis and judicial review, calls for better integration of the proportionality process in policy analysis. Relying on existing practices of policy analysis to implement the principle of proportionality can give policy analysts a greater role in protecting rights. Furthermore, a better understanding of policy analysis by judges may im- 60 International Review of Public Policy, 3:1 prove the way in which judicial review is conducted and may potentially diminish the tension between the branches of government. Proportionality and policy analysis In view of the differences discussed above between policy analysis and judicial review, this section presents a plausible, prescriptive method for integrating proportionality into policy analysis in order to improve the protection of rights in the policy process. The worthy goal test This test require that the goal be worthy, and different legal systems offer minimalist and- ex pansive approaches to this requirement. The worthiness of a policy goal is primarily dependant on the factual question as to whether it is indeed publicly important. As noted above, a key preliminary stage in well-conducted policy analysis is to establish and specify the undesirable phenomenon that the policy is intended to mitigate. This professional standard forms the basis for prioritizing policy problems and the limited resources available for addressing them. In a similar vein, a clear specification of the undesirable phenomenon also serves the purpose of the worthy goal test, as an important first step in weighing the normative costs of policy, such as infringements of rights. Rights infringements While policy analysts are accustomed to considering policy goals, they are much less experienced in evaluating rights infringements which are often less transparent and harder to detect. It is important for policy analysts to understand and routinely evaluate potential rights infringements. In this regard they should appreciate both the individual and the societal implications of such infringements. For example, it is impossible to assess fully the social cost of a restriction on the freedom of political speech without understanding the essential role of political speech in the functioning of a democracy, as well as the chilling effects of such infringements beyond the direct ones. Such considerations can be addressed by legal advisors in the policy process and it is thus advisable to seek their input from the early stages of the analysis. Policy analysts should primarily assess whether they are capable of addressing the problem effectively without infringing on any right. This point of departure stresses the professional importance of generating alternatives. A well-conducted policy analysis cannot rely on evaluation of a single alternative. When an alternative involves an infringement of rights, a normative reason to consider additional alternatives is added to the professional reasons. The constitutional obligation to protect certain rights requires that policy analysts exert creative effort in identifying alternatives for addressing the policy problem. These alternatives should vary in their levels of rights infringement. As explained above, policy analysis is a much more flexible procedure than legal proportionality analysis and allows policy analysts to formulate alternatives that entail a lesser infringement of rights, or to revise existing alternatives in order to minimize their restriction of rights (narrow tailoring). However, in order to simplify the identification of the impact of potential alternatives on rights, it is recommended that a list of categorically unacceptable policy measures be drawn up. The core of such a list may include violations of pertinent international norms.5 To this, one may add measures that the policy analysts and their legal advisors deem

5 — Some examples are: torture; cruel, inhuman and degrading treatment; arbitrary killing; collective punishment; hostage-taking; medical experiments without consent; and violations of basic due process requirements (such as being tried in front of an impartial tribunal or being informed of the evidence against oneself). Kremnitzer / Sulitzeanu-Kenan | Protecting Rights in the Policy Process... 61 to be cruel, inhumane or degrading. Although the content of such a list may be contested, we think that it is important and useful to make a collective effort to create one in overnmentg agencies (where the constitution or legislation does not provide one). The comparative evaluation of alternatives – an integral part of policy analysis – must address the potential for rights infringements. This practice is required as part of the state’s duty to respect constitutionally protected rights.6 We suggest that, in practice, this duty requires inclusion of a rights-impact criterion in the evaluation process. Such a criterion should address the potential of the alternative to restrict, protect or promote rights. Including such a criterion may be an effective means of preventing rights infringements due to unawareness, since policy analysts would have to weigh the impact on rights of the alternative being considered, and explicitly state their conclusions in the comparative evaluation of the alternatives (see: Nelson et al., 1997). This key step of integrating a rights-impact assessment in policy analysis requires policy analysts, aided by legal advisors, to evaluate the potential effect of policy alternatives on rights and assign the appropriate weight to this criterion, which would then be factored into the comparative assessment of the alternatives. The rights-impact criterion utilizes the process of alternatives evaluation in order to integrate normative considerations, which are the key goal of courts in reviewing policy, within policy analysis. A key difference between proportionality analysis conducted by courts and the consideration of rights in policy analysis is that the former tends to focus on one particular public goal, while policy analysis jointly weighs alternatives that promote more than one public goal and/ or potentially infringe on more than one right. In this process, policy analysis should compare infringements of rights by different alternatives, while also assessing the various options for minimising the policy problem and the undesirable phenomenon. How should policy analysts weigh an infringement of a right against the benefits of a policy alternative? In such instances, legal advisors can make a professional contribution by advising them as to the relative weight and degree of harm of an infringement. In making these determinations, one may consider two options: a categorical ban on alternatives that infringe rights (especially when other feasible alternatives do not) or a very restrictive approach. In the case of the latter, a rights-infringing alternative can be permitted only if it is highly effective in promoting a highly important policy goal, with a high level of certainty (Alexy, 2010). The suitability test Unlike the courts’ application of the suitability test as a threshold assessment, policy analysis is better at conducting an extensive examination of suitability. A recent comparative study suggests that apex courts in Germany, Israel, Poland, and Canada typically adopt a deferen- tial approach, as they ‘sum up the suitability stage in one or two sentences by finding that a measure is suitable or rationally connected to the goal, without further analysis. Furthermore, many courts seem not to insist on evidence to support the claim that the policy can effectively promote the goal, instead accepting statements made by policy-makers’ (Steiner et al., 2020, p. 568). Conversely, effectiveness assessment is a pivotal feature of policy analysis. A central criterion in the evaluation of policy alternatives is effectiveness, measured by the degree to which the undesirable phenomenon is expected to be mitigated by implementing the assessed policy alternative, and the level of certainty (or probability) of this effect. The expected mitigation by

6 — It is required, for example, by: the U.S. Constitution, Amendments I-X; the preamble to the French Constitution; Article 1 GG of the German Constitution; and Chapter 2 of the South African Constitution. 62 International Review of Public Policy, 3:1 implementing the policy represents its expected positive effect on the policy goal – which constitutes the suitability test. Effectiveness estimates regarding the various alternatives must be based on the best available evidence, including: past experience in the relevant country and in others; scientific research; and further conventional methods of assessment. Such a practice offers a sound basis for policy analysis and alleviates tendencies, especiallyamong those proposing a particular policy, to over-estimate the potential of the policy by exaggerating its effectiveness or its probability of success, as well as the tendency to follow ‘fashionable’ but unsubstantiated solutions. Careful effectiveness estimates also facilitate communication of the process to parties who were not involved in the actual policy analysis – a particularly crucial aspect in the case of important public policies, including those that affect constitutional rights. The necessity test There are two main legal interpretations of the necessity test. According to the first, a policy fails this test if a less restrictive alternative is available – provided that this alternative is equally effective in promoting the policy goal (Barak, 2012, p. 323-324). The second interpretation places the emphasis on whether a less restrictive alternative exists, even if the latter is not equally effective (see: R. vs. Big M Drug Mart Ltd. 1985; R. vs. Oakes 1986). While the latter interpretation leaves some ambiguity as to the required similarity of effectiveness, the former appears to be intended to prevent only Pareto-inefficient alternatives.7 Even if one endorses the interpretation of the necessity test as requiring the least restrictive mean to be equally effective, it is clearly not appropriate for this approach to be followed in policy analysis by institutions that respect rights. First, this interpretation implicitly assumes that policy-makers are not obliged to give any weight to the protection of rights. Second, well performed policy analysis is more comprehensive than is proportionality analysis. Given that proportionality analysis was intended for courts rather than policy analysts, it utilized four separate distinct evaluations, rather than a comprehensive analysis. Specifically, when courts evaluate compliance to the necessity test, they restrict their scrutiny to the comparison of effectiveness and rights infringement across alternatives; but when they implement the balancing test, they compare effectiveness and rights infringement within the chosen alternative. However comprehensive assessment of alternatives – which is an integral part of policy analysis – involves trade-offs between the different criteria across alternatives. When such analysis involves a criterion of rights impact, it practically incorporates both necessity and balancing. Under such circumstances, as noted earlier, requiring policy-makers to opt for an equally effective alternative that is less restrictive of rights is a minimalistic requirement, since no cost difference (in the currency of effectiveness) offsets the infringement of rights; thus it implicitly requires no more than zero weight for rights. In practice, such a requirement addresses a case in which the policy analyst failed to identify the infringement of a right entailed by the policy, and/or failed to detect an equally effective and less restrictive alternative, and these failures were detected in the course of the judicial review. However, when policy analysts are aware of such an alternative in the course of the policy analysis, they are obviously required to opt for it, since – as public agents – they are expected to give appropriate weight to the impact on rights as part of their duty to respect constitutional rights. Such circumstances, in fact, describe a situation of a dominant alternative (Colman, 2015, p. 219): the alternative is equal in all ways but one to a competing alternative, while being superior in that one criterion – rights impact – and thus must be chosen. Assigning a non-negligible weight to rights

7 — Moreover, the set of alternatives that satisfy the requirement of strictly equal effectiveness may be exceedingly small. Kremnitzer / Sulitzeanu-Kenan | Protecting Rights in the Policy Process... 63 therefore requires that policy analysts prefer less restrictive alternatives, even at the cost of some effectiveness. Assigning a non-negligible weight to rights in policy analysis requires a more flexible application of the necessity test. Selecting between alternatives based on a set of criteria that includes rights impact means that the policy plan that is not the best in terms of effectiveness, but which offers the best weighted average score across the set of criteria, should be selected.8 Our discussion of the implications of the necessity test for policy analysis so far can be summarized as making a case against adoption of its strict judicial version (which requires the least restrictive mean to be equally effective). However, we maintain that the essence of this test implies a positive conclusion: namely, the enhanced duty actively to seek alternatives that minimize rights infringement, and/or engage in narrow tailoring (revising and adapting the chosen alternative) in order to do so. Policy analysis based on a single alternative is generally undesirable for reasons of policy quality and is more susceptible to opportunity cost neglect (Persson & Tinghog, 2020; Cohen-Blankshtain & Sulitzeanu-Keenan, 2021). This is particularly true when the policy may impact on protected rights; in such a case, a normative disadvantage is added, since the single alternative is evaluated against the status quo only (i.e., the undesirable phenomenon). Under such conditions the likelihood of adopting the policy is high given the dominance of the policy goal, and the consequent restriction of rights is more likely to be perceived as an unavoidable side-effect (Steiner et al., Forthcoming). Developing several real alternatives which address both the policy problem and the undesirable phenomenon to appropriate degrees facilitates a more significant assessment of considerations that might otherwise be assigned lesser priority, such as the protection of rights. A particular policy analysis that is related to the necessity test is narrow tailoring – the careful consideration and adaptation of alternatives so as to minimize the likelihood and extent of rights infringements. This may include assessing whether a policy is too broad, whether it is sensitive to diverse populations and circumstances, and whether it overly burdens certain disadvantaged social groups. For example, in 2000, the South African Supreme Court found that the government’s failure to issue guidelines for the exercise of a regulatory discretion to allow spouses of permanent residents to remain in South Africa while applying for residence status amounted to an unjustifiable limitation of the right to dignity. The court accepted that controlling immigration is a legitimate policy objective and that the challenged limitation was rationally connected to that objective. However, issuing guidelines as to when and how discretion should be exercised would have been a less restrictive means of achieving that objective; thus the absence of such guidelines provided no guarantee that the discretionary powers would be exercised in a way that is congruent with constitutional values (Stacey, 2020, p. 276). Policy analysts should consider whether those whose rights are affected by the policy can be expected to understand the policy even if they do not accept it, and to perceive it as a fair ar- rangement, or at least not see it as unjust. In other words, policy analysts should figure out whether promoting the policy goal by means of the chosen policy would benefit society in such a way that its individual members, including those whose rights are infringed, would be able

8 — It should be noted that a similar approach to the necessity test can be found in Canadian constitutional law, in the sense that it seeks to balance the harm of a rights infringement and the effectiveness of promoting the policy goal. See, for example: RJR-MacDonald Inc. v. Canada (Attorney General) S.C.R. 3 199 (1995); Canada (Attorney General) v. JTI-Macdonald Corp., S.C.C. 30, S.C.R.2 610 (2007), which determined that, although an absolute ban on advertising tobacco products is more effective than a partial ban, the former should not be implemented given the balance between its marginal utility and the marginal harm to rights. 64 International Review of Public Policy, 3:1 to appreciate this. Lastly, in cases of substantial infringements of important rights of stable minority groups, we recommend that the policy-making process include direct consultations or hearings with representatives of these groups. The balancing test As noted above, the balancing test requires us to compare the marginal advancement of a worthy goal against the marginal restriction of rights (Barak, 2012). The former pertains to the effectiveness of an alternative, defined as the expected contribution of the policy to minimizing the undesirable phenomenon (multiplying the effect by its probability). This concrete benefit is the value that should be weighed against the expected impact on rights within the balancing test. For example, the goal of an electronic surveillance measure intended to detect security threats (e.g., by scanning the content of emails) is, in general, national security. However, in order to determine whether the expected infringement of rights (in this case, privacy) is justified, we must assess the expected effectiveness of this policy measure. Specifically, we should estimate the change in the likelihood of preventing attacks and the expected benefits it may bring about (in human lives, etc.). Very few policy measures achieve complete elimination of an undesirable phenomenon;9 instead of abstract goals and marketing slogans, a thorough policy analysis may provide realistic estimates of the expected contribution of the policy to the goal. Our suggestion to require policy analysts to include a rights-impact criterion in conducting alternatives evaluation would lead them to assess the expected effect on rights. The combination of evidence-based estimates of effectiveness and of the impact on rights, for each policy alternative, offers a robust method for applying the balancing test in policy analysis. Implications for judicial review Consistent with the integrative approach of this article, the following section identifies key implications of the proposed implementation of the proportionality principle in policy analysis for the practice of courts in conducting judicial review of policy. The relative weakness of courts in implementing the worthy goal and the suitability tests (Stone-Sweet & Mathews 2019, p. 138) lies in the fact that they typically defer to the position of the executive branch or legislature as to the importance and effectiveness of policies (see: Steiner et al., 2020, p. 562-563). Judicial deference varies depending on the characteristic of the dispute, the gravity of the issue and its level of technicality (Radaelli & Taffoni, 2020). Indeed, the worthy goal test pertains to the political legitimacy of the legislature to determine policy goals, and the suitability test alludes to technical aspects of policy effectiveness; thus courts are less likely to challenge the substance of such legislative and executive assertions. However, the integration of proportionality in policy analysis produces observable outputs that provide procedural criteria for judicial review. Such criteria, as detailed below, offer new options for judges to review the policy processes that impinge on rights, while respecting the political and technical discretion of policy-makers. Well-conducted policy analysis must establish the existence and magnitude of the undesirable phenomenon in a much more thorough manner. This professional standard, along with the normative burden on the state to justify rights infringements (as stated in the constitutions of most democracies), entails that when assessing the worthiness of a policy in the context

9 — Notable exceptions are some cases of public immunization, which practically eradicated several illnesses in countries that implemented them. Kremnitzer / Sulitzeanu-Kenan | Protecting Rights in the Policy Process... 65 of judicial review, courts should require policy-makers to present the factual evidence for the existence and magnitude of the undesirable phenomenon.10 In the absence of factual evidence, a stated goal may be deemed worthy yet superfluous, and thus cannot justify rights infringements. This understanding conforms to the opinion of the Canadian Supreme Court inR. v Oakes (1986), according to which the policy goal should be linked to a ‘pressing and substantial’ public matter becoming a democratic society. The provision of such factual evidence gives substance to the application of the worthy goal prong in judicial review, while respecting the notion of separation of powers. It is the executive or legislative branch which provides the factual basis, while the courts focus on verifying that it has been provided. While courts typically apply the suitability test as a threshold assessment, policy analysis provides a much more extensive examination by forming effectiveness estimates. In order to provide policy-makers with an incentive to conduct this analysis thoroughly, and to leverage it to inform the process of judicial review, we propose that judges who conduct proportionality analysis in judicial review require policy-makers to present detailed information on the suitability of the policy in question (see also: Roach, 2015, p. 416). Specifying the required evidence that should be presented in judicial review, in this way, is expected to reduce the likelihood of presenting an unsubstantiated policy position regarding the suitability tests, as exempli- fied by the Sauve No. 2 (2002) decision of the Canadian Constitutional Court (Stone-Sweet & Mathews, 2019, p. 139-140). Failure to present such established estimates may act against the policy-maker, as the court may conclude that the stated policy goal is not the true purpose of the policy being assessed (Roach, 2015, p. 417). As noted above, assessing multiple alternatives by policy analysts is not only a useful policyanalysis practice, but also facilitates the application of the necessity test. This point is accentu- ated by the relative disadvantage of courts in generating and assessing alternatives, and their dependence on identifying one or more available alternatives that policy-makers could have chosen (Stone-Sweet & Mathews, 2019, p. 140-141). We therefore suggest that judges incen- tivize policy-makers to do so. Courts can do this by emphasizing the merit of alternatives evaluation in their judicial review. Instead of merely asking the parties whether a less restrictive means is possible, judges can ask policy-makers to present the alternatives considered in the policy-making process. Anticipating such a requirement in the judicial review would motivate policy-makers to seek additional policy alternatives ex ante – thus achieving the goal of the necessity test. Second, courts may rely on this as a procedural test in the judicial review, thus being able to engage more with the quality of the policy-making procedure rather than the policy substance, while reserving the option to delve into the latter in extreme cases. Lastly, in addition to requiring policy-makers to present the estimated effectiveness of the policy in question to inform the suitability test, courts conducting judicial review may also require assessments of the expected effect on rights. Such requirements allow the court to assess whether the relevant authority can support the claim that the infringement of a right is justified, and constitute tasks that form an integral part of judicious policy analysis any- way. Adequate policy analysis requires that estimates regarding the effectiveness of a policy be based on factual evidence, not only for the purpose of proportionality analysis. Our suggestion to require policy analysts to include a rights-impact criterion in conducting alternatives evaluation would lead them to assess the expected effect on rights, and such an assessment could supplement the court’s review in this regard.

10 — Some may argue that such a requirement unduly limits the prerogative of the executive and legislative branches to determine which goals are worthy. We join Roach (2015: 416) in arguing that this limitation applies only to policies that may infringe on constitutionally protected rights. 66 International Review of Public Policy, 3:1

Discussion This article discusses the potential for integrating the proportionality principle in policy analysis, for enhancing the protection of rights in policy-making, and thus for improving the quality of policy. We acknowledge that these two bodies of knowledge are utilized by different officeholders in different professional sectors and fora. However, mutual understanding and appre- ciation across these domains may enhance the application of the principle of proportionality as a method of protecting rights, both by policy analysts and judges. Our aim is not to turn policy analysts into lawyers, nor to convert judges into policy analysts. Rather, we seek to increase mutual understanding, and especially to come up with practical suggestions that may address current limitations in the protection of rights by both policy analysts and judges. In the following, we present our conclusions and point out the limitations of our analysis, as well as the challenges that remain unanswered here. Figure 1 depicts the relationships between the various stages of policy analysis and the different proportionality tests. These relationships are represented by the arrows, with each arrow’s direction indicating the direction of influence, and each relationship labelled with a capital letter. Including a rights-impact criterion in a well-conducted policy analysis is consistent with the state’s duty to respect constitutionally protected rights, and means that the three proportionality tests are likely to be addressed suitably to the best of the policy analysts’ judgement. Requiring policy analysts to include this criterion [B]11 is expected to reduce the likelihood of restrictions on rights due to lack of awareness of the issue (Nelson et al., 1997). Furthermore, thorough policy analysis involves assessing the effectiveness of the various policy alternatives and creates the relevant information for implementing the necessity test. Incorporating the rights-impact criterion in the alternatives evaluation is a way of implementing the balancing test naturally. Lastly, the necessity test [C] provides a normative justification, which coincides with the professional norm of evaluating multiple real alternatives and assessing the possibility of minimizing the restriction of rights by amending and adapting the alternatives under consideration. We also find that a better understanding of policy analysis by judges has practical implications for the judicial review process. Since a well-conducted policy analysis is based on detailed factual inspection of the undesirable phenomenon, it makes perfect sense that this factual basis would serve as background for a judicial review of the worthiness of the goal [A]. Similarly, mere statements regarding the expected effectiveness of a chosen policy are not sufficient for the suitability test, and given that detailed effectiveness estimates are an integral part of policy analysis, they should inform any legal analysis of the suitability test [D]. Lastly, in its application of the balancing test, the court can consider the evidence presented by the policy-making body regarding the concrete goal (the marginal contribution of the policy to mitigating the undesirable phenomenon) and the expected impact of the policy on rights [E].

11 — Much like similar requirements to include environmental impact assessments in planning processes. Kremnitzer / Sulitzeanu-Kenan | Protecting Rights in the Policy Process... 67

Figure 1: The relationship between policy analysis and proportionality analysis

Source: The Authors The proposed approach outlined in this article requires that the judiciary not merely settle the concrete disputes brought before it, but also guide policy analysts regarding the consideration of rights in the policy-making process. In line with the notion of deference, which shapes the division of powers between the judiciary and other branches of government (see: Dotan, 2020), such guidance can be substantive in areas where the judges have a relative advantage (e.g., articulating rights and stating their limits) and procedural with regard to rights considerations in the policy-making process itself. Thus the court can fulfil its duty to review the policy, rather than replacing the policy-makers’ discretion with its own. Moreover, with this approach, the court can convey informative incentives for the promotion of rights considerations in the policy process, and fulfil its duty to seek to minimize infringement of rights. The implications that we infer from the integrative analysis of the proportionality tests and the method of policy analysis rely on these generally accepted bodies of knowledge. In this respect, we take a conservative approach, in the sense that its novelty lies in integrating current professional norms of policy analysis with basic legal norms that exist in most constitutional democracies – particularly the duty of state institutions to respect the rights protected by the constitution. As far as judicial review is concerned, our approach is consistent with established views that emphasize procedural criteria in reviewing decisions of the executive and legislature (Bar-Siman-Tov, 2011; Coenen, 2002). One important advantage of this approach is that specific steps that can enhance the protection of rights are identified and can then immediately be implemented, without prerequisite reforms in the proportionality test or in established methods of policy analysis. Yet the limitations and shortcomings of our approach should also be noted so that critical readers can assess whether it is convincing on balance. 68 International Review of Public Policy, 3:1

A notable limitation concerns a characteristic of policy analysis which might be termed ‘goal uniqueness’. Policy analysts are typically guided by the question of whether a policy is likely to be effective at minimizing the undesirable phenomenon. For policy analysts, restriction of rights amounts to an adverse side effect – and, in our view, a required criterion in alternatives evaluation. One may question, however, whether constitutional requirements that state institutions respect human and civil rights are consistent with a policy-making process in which rights are not a goal in their own right, but merely a criterion. An alternative to this might identify rights as additional goals, beyond the specific policy goal. This does not mean making the promotion of rights a goal to be taken into account in all policy analyses, as many policies have no impact on rights; it applies only in those cases where they do have such an impact. This alternative approach can be justified in at least two ways. First, it reflects the constitutional requirement that public institutions respect rights, implying that restrictions of rights must be exceptions that require powerful justification. Second, it counter- balances the subservient status that rights may have in practice in the policy-making process. This status may stem from a tendency to perceive rights as the interest of individuals, unlike the public interest, which is typically associated with the public at large.12 Forming a clear and comprehensive understanding of the meaning and implications of restricting rights is extremely challenging. This challenge is exacerbated by the professional motivations of policy analysts, who are typically entrusted with promoting public interests. Conversely, because the current practice of policy analysis does not require that protection of rights be a policy goal, requiring such a general policy goal is much more challenging and uncertain. Moreover, it is plausible that mandating a rights-impact criterion in policy analysis is sufficient for the protection of rights in most cases. Obviously, in cases where the policy goal is indeed the promotion of rights, there is no practical reason not to do it. This is the case for both negative rights, such as preventing discrimination, and positive rights, such as the right to education (Berlin, 1969; Currie, 1986). In such cases the infringement of the right constitutes the undesirable phenomenon, and the entire policy will be aimed at minimizing it. Note that, even in such cases, a rights-impact criterion should be required in order to assess potential restrictions of rights other than the one intended to be promoted by the policy. To conclude, the present study points out the inherent potential of integrating the proportionality principle in policy analysis for enhancing the protection of rights in the policy process. First, mandating the inclusion of a rights-impact criterion in policy analysis is expected to increase the likelihood that the three proportionality tests will be addressed in the analysis. Sec- ond, the professional norm of considering several distinct alternatives satisfies the normative requirement of the necessity test and facilitates the mitigation of rights restrictions through the comparison and modification of the alternatives. Third, since professional policyanalysis must rely on establishing a factual basis for the undesirable phenomenon, it stands to reason that this factual basis would be presented in the course of judicial review of the policy goal and the three proportionality tests. Adopting these practical measures may substantially assist the court in identifying ways to implement its judicial review, while respecting the discretion of the executive branch and/or legislature. Finally, these proposed practices are expected to streamline the incentive structure of policy-makers for conducting quality policy analysis while protecting human and civil rights.

12 — When the right in question is that of an ‘other’ – not a member of the majority group – its weight suffers even more. Kremnitzer / Sulitzeanu-Kenan | Protecting Rights in the Policy Process... 69

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Investigating ACF Policy Change Theory in a Unitary Policy Subsystem: The Case of Ghanaian Public Sector Information Policy

B. Timothy Heinmiller Brock University, Canada Emmanuel M. Osei Ph.D Student, University of Toronto, Canada Eugene Danso Concordia University, Canada

Abstract In 2019, the government of Ghana overhauled its access to public information rules through the Right to Information Act. Prior to this legislation, access to public sector information was not formally regulated and the new legislation provided a legal framework for making public sector information accessible to the general public. From an Advocacy Coalition Framework (ACF) perspective, the passage of the Right to Information Act represents a major policy change and provides a case in which the ACF theory of major policy change can be investigated. This case is also interesting because it took place in a unitary policy subsystem, as opposed to a competitive or collaborative subsystem. Unitary subsystems are characterized by a single, dominant advocacy coalition, in this case a pro-transparency coalition, and are relatively uncommon in the ACF literature. The purpose of this paper is to investigate ACF policy change theory in the Ghanaian public sector information policy subsystem – as a unitary subsystem – to determine whether it can explain the major policy change that took place with the passage of the Right to Information Act. The investigation finds strong empirical support for the ACF’s ‘pathways’ hypothesis and moderate support for the ‘power’ hypothesis.

Keywords Advocacy Coalition Framework, Ghana, policy change theory, unitary policy subsystem Heinmiller / Osei / Danso | Investigating ACF Policy Change Theory in a Unitary Policy Subsystem 73

Introduction/Background In 2019, the government of Ghana overhauled its access to public information rules through the Right to Information Act. Prior to this legislation, access to public sector information was not formally regulated. Public institutions were under no obligation to honour information requests and generally exercised arbitrary discretion on the kinds of information suitable for public consumption (Kuunifaa, 2012). The adoption of theRight to Information Act provided a legal framework for making public sector information accessible to the general public. The law ensured that, with the exception of sensitive information exempt from public access, Ghana- ians had the right to access information in the custody of public sector organizations. The law effectively guaranteed maximum disclosure of information and the government was enjoined to furnish the public proactively with information (Yawson, Armah, & Dadzie, 2010, p. 330). From an Advocacy Coalition Framework (ACF) perspective, the passage of the Right to Informa- tion Act represented a major policy change and provides a case in which the ACF theory of major policy change can be investigated. The ACF defines a major policy change as one involving the introduction of new core attributes to a policy, shifting policy in a new direction in pursuit of new objectives. Prior to the 2019 reforms, Ghana’s access to information regime rested on the government’s discretionary powers and was mostly designed to allow the government to avoid public scrutiny. After the reforms, the presumptive policy objective is government transparency, institutionalizing a process of access to information and reducing government’s control over the release of information, even information that might be embarrassing to it. Thus, a shift in the policy’s core attributes – from government opacity to government transparency – has taken place and the Right to Information Act constitutes a major policy change. For ACF scholars, the Right to Information Act provides an intriguing case due to the nature of the policy subsystem that produced it. Anecdotal evidence suggests, and empirical investigation in this paper confirms, that the Ghanaian public sector information policy subsystem was unitary in structure, as opposed to competitive or collaborative. Unitary subsystems are characterized by a single, dominant advocacy coalition, in this case a pro-transparency coalition, and are relatively uncommon in the ACF literature. Currently, it is assumed that ACF policy change theory applies to all policy subsystems regardless of their structure and this case allows us to probe this assumption by investigating the theory in an atypical subsystem type. Unitary subsystems have a distinctive politics and it is reasonable to question whether current theory adequately captures and accounts for this politics. Accordingly, the purpose of this paper is to investigate ACF policy change theory in the Ghanaian public sector information policy subsystem – as a unitary subsystem – to determine whether it can explain the major policy change that took place with the passage of the Right to Information Act in 2019.1 The investigation finds strong empirical support for the ACF’s “pathways” hypothesis and moderate support for the “power” hypothesis. This study is also the first application of ACF policy change theory to Ghanaian policymaking. Previous Ghanaian applications have used elements of the framework to inform their analyses, demonstrating its viability in the Ghanaian context, but have not formally investigated the ACF theory of policy change. Accordingly, this article opens an important line of research, providing insights into democratic policymaking in Ghana, as well as insights into the functional- ity of ACF theory in a non-Western democratic context.

1 — In Ghana, some actors use the terms ‘public sector information policy’ and ‘Right to Information Act’ interchange- ably. In our use of these terms, public sector information policy is the policy area being studied and the Right to Infor- mation Act is a specific policy outcome – a major policy change – in this policy area. 74 International Review of Public Policy, 3:1

Theoretical Framework: The Advocacy Coalition Framework (ACF) First developed by Paul Sabatier and Hank Jenkins-Smith in the late 1980s, the ACF has been one of the most widely applied policy process theories of the last two or three decades. The unit of analysis in the ACF is the policy subsystem and within each policy subsystem are the various actors who claim a stake in a policy area and who regularly participate in policy processes. The boundaries of any policy subsystem are defined by both a substantive focus and a geographical scope (Sabatier & Weible, 2007, p. 193) which, in this case, is access to public sector information within Ghana. The ACF further assumes that actors in a policy subsystem are fundamentally driven by their beliefs and their desire to see their beliefs reflected in policy. The framework distinguishes between beliefs operating at three different levels of abstraction. At the deepest level are deep core beliefs, which are quite broad in scope, predominantly normative, and very slow to change in response to empirical contradiction. These beliefs are relevant across a broad range of policy subsystems and include such things as one’s left-right ideological orientation. At the next deepest level are policy core beliefs which are intermediate in scope because they involve the application of deep core beliefs to a specificpolicy subsystem. Policy core beliefs are resistant to change, “…but are more likely to adjust in response to verification and refutation from new experience and information than deep core beliefs” (Weible, Sabatier, & McQueen, 2009, p. 123). At the shallowest level are secondary beliefs which are narrowest in scope and which pertain to the details of various policy issues, such as preferred modes of policy implementation. Although secondary beliefs are linked to policy core beliefs, they are more empirically based and are therefore more amenable to change (Sabatier & Weible, 2007, pp. 194-96). Actor beliefs are important in the ACF because policy core beliefs, the mid-level beliefs described above, serve as the rallying point for advocacy coalitions. Like-minded actors in policy subsystems often make common cause in pursuit of their policy goals simply because they are more effective working together than working in isolation. When a group of actors shares a set of policy core beliefs and engages in a non-trivial degree of collective action, they form an advocacy coalition (Sabatier & Weible, 2007, p. 196). The ACF hypothesizes – and researchhas largely confirmed – that advocacy coalitions tend to be relatively stable over time, despite some turnovers in coalition membership, so that, on most major controversies in a policy subsystem, there is a characteristic line-up of coalitions seeking to influence policy (Jenkins-Smith, Nohrstedt, Weible, & Sabatier, 2014, p. 195). The number of advocacy coalitions in a policy subsystem typically ranges between one and five, with the exact number constituting an empirical question (Sabatier, 1993). Advocacy coalitions are central in ACF theory because the dominant coalition in any policy subsystem shapes the policy decisions made. Heinmiller / Osei / Danso | Investigating ACF Policy Change Theory in a Unitary Policy Subsystem 75

Figure 1: A Diagram of the Advocacy Coalition Framework

Source: Weible et al. (2011, p. 352) Since its inception, the ACF has spawned three lines of theory relevant to policy and policy- making: a theory of advocacy coalitions; a theory of policy-oriented learning; and a theory of major policy change. Each line has developed distinctive hypotheses which have been repeat- edly tested in empirical research. These empirical results have informed periodic revision of the hypotheses and even some revisions to the framework itself. While all three lines of theory are relevant, the most pertinent to this study is the theory of major policy change, which outlines the factors causing such change. The ACF has a distinctive conception of public policy that differentiates between major and minor policy change. In the ACF, policies are assumed to be interpretations and reflections of policy-oriented beliefs. Just as policy-oriented beliefs have core and secondary aspects, so too do public policies. Core aspects of a policy have to do with its overall direction and goals, and a change in the core attributes of a policy is considered a major policy change. In contrast, the secondary aspects of a policy pertain to the implementation of core goals, and a change in the secondary attributes of a policy is considered a minor policy change (Jenkins-Smith, Nohrstedt, Weible, & Sabatier, 2014, p. 201). The ACF theory of policy change is a theory of major policy change. Minor policy changes are assumed to result from dominant advocacy coalitions accepting new secondary beliefs – sometimes reluctantly – and translating these beliefs into policy, but there is no explicit ACF theory of minor policy change. The ACF theory of major policy change consists of two distinct but 76 International Review of Public Policy, 3:1 inter-related hypotheses, each specifying a necessary condition, which together provide an explanation of major policy change. The first hypothesis holds that at least one policy change pathway must be present for a major policy change to occur. It states: Significant perturbations external to the subsystem, a significant perturbation internal to the subsystem, policy-oriented learning, negotiated agreement, or some combination thereof are necessary, but not sufficient, sources of change in the policy core attributes of a governmental program (Jenkins-Smith, Nohrstedt, Weible, & In- gold, 2018, p. 147). In other words, the hypothesis specifies four possible policy change pathways: a shock external to a policy subsystem, a shock internal to a policy subsystem, policy-oriented learning, and negotiated agreement between coalitions (Weible, Sabatier, & McQueen, 2009, p. 124). These are each potential policy change pathways because they shake up a policy subsystem enough to create openings for major policy change. Multiple pathways may be at work in any given policy change, but the presence of at least one pathway is considered necessary for major policy change to occur. The second ACF policy change hypothesis focuses more directly on advocacycoalitions and the balance of power between advocacy coalitions within a policy subsystem: The policy core attributes of a government program in a specific jurisdiction will not be significantly revised as long as the subsystem advocacy coalition that instated the program remains in power within that jurisdiction – except when the change is imposed by a hierarchically superior jurisdiction (Jenkins-Smith, Nohrstedt, Weible, & Ingold, 2018, p. 147). This hypothesis claims that major policy change only occurs when the coalition that introduced the status quo policy is no longer in power, except when policy change is imposed by a hierarchically superior jurisdiction. Given the close relationship between coalitions’ policy core beliefs and the core attributes of policy, this claim makes sense: when the coalition that installed the policy status quo is no longer in power, a new coalition with new core beliefs can shape policy and bring about major policy change. While ACF policy change theory is limited to explaining major policy change, there are no limits to the scope of the theory in terms of policy subsystem structure; the theory is assumed to apply to all subsystems regardless of their structural characteristics. ACF scholars have identified two subsystem structural dimensions as particularly important: whether a subsystem is nascent or mature, and whether a subsystem is unitary, competitive, or collaborative. The first dimension differentiates policy subsystems based on how long they have existed and how much they have developed. Nascent subsystems are those that are relatively recently formed, while mature subsystems are those that are more long-standing and further developed. Mature subsystems are far more common in the ACF literature and, as we will see, the Ghanaian public sector information policy subsystem is an example of a mature subsystem. The second dimension differentiates policy subsystems based on the number of advocacy coalitions present and the level of conflict between them. Unitary subsystems have only a single dominant advocacy coalition and there is typically little conflict in these subsystems as most actors share similar policy core beliefs. Collaborative subsystems have two or more coalitions and the coalitions share some beliefs, usually at the secondary level, resulting in an intermedi- Heinmiller / Osei / Danso | Investigating ACF Policy Change Theory in a Unitary Policy Subsystem 77 ate level of conflict and some coordination or cooperation across the coalitions. Competitive subsystems also have two or more coalitions but share few beliefs and typically compete with each other for policy influence, sometimes quite intensely (Weible, 2008). The differences between unitary, collaborative, and competitive subsystems represent different types of coalition politics in policymaking, and it is therefore reasonable to question whether a single policy change theory adequately explains major policy change in all three contexts. This is the question that we begin to address in this paper. Although there has yet to be a comprehensive survey of the empirical frequency of each subsystem type, it is probably fair to say that unitary subsystems are relatively uncommon given the limited number of these that have been identified in the ACF literature. Only two ACF studies have explicitly identified unitary policy subsystems: Ingold and Gschwend (2014) and Rinscheid (2015). Both of these studies examine policymaking in unitary subsystems, and Nohrstedt and Weible (2010) speculate on how unitary subsystems will respond to external shocks, but no study has yet investigated the ACF policy change hypotheses in a unitary subsystem. This study will be the first to do so. This study will also be the first to investigate ACF policy change theory in Ghanaian policy- making. The ACF was developed – and subsequently revised – with US and Western European democracies in mind and it is worthwhile applying the framework and its theories to younger, non-Western democracies in order to assess their applicability in these contexts (Jenkins- Smith, Nohrstedt, Weible, & Ingold, 2018, pp. 156-159). Thus far, the framework has been applied to Ghana in at least two studies, both with promising results. Ainuson (2009) used ACF hypotheses about coalition formation and policy-oriented learning in order to understand Ghanaian water policy processes and concluded that the framework provided an effective way of understanding these processes. Similarly, Marfo and McKeown (2013) used the ACF as a heuristic framework to explain a negotiated policy change in Ghanaian forestry policy and also concluded that the framework was useful in the Ghanaian context. Thus, there is literature showing the utility of the ACF for understanding some aspects of Ghanaian policy processes, but there are no formal applications of ACF policy change theory, and this study will provide a first test of the theory in the Ghanaian context. Methodology This paper uses a case study approach to probe the limits of ACF policy change theory. The case selected was the passage of the Ghanaian Right to Information Act in 2019 and this was chosen because it was a major policy change in a unitary subsystem. This allows us to investigate ACF policy change theory in a distinct subclass of major policy change cases. Such an approach follows the advice of George and Bennett (2005, p. 77), who argue that using a case study to investigate a subclass (major policy change in unitary subsystems) of a general phenomenon (major policy change in all subsystems) is a useful way of contributing to theory-building by testing a general theory within a specific and somewhat atypical context. In this approach, the Right to Information Act is considered a “most likely” case in which ACF policy change theory is expected to work since there are no existing theoretical scope conditions that would preclude its application to this case (Gerring, 2007, pp. 120-121). If the theory is supported in our investigation, the theory’s existing claim to general application across subsystem types is strengthened. If, however, the theory is not supported in our investigation, then we must consider whether unitary subsystems require differential treatment in ACF policy change theory. Either way, testing the ACF policy change hypotheses in the Right to Informa- tion Act case makes a contribution to the ongoing development of the theory. 78 International Review of Public Policy, 3:1

We investigate the development of the Right to Information Act using the congruence method. Our approach is congruence, rather than process tracing, since we operationalize and investigate causal factors – the ones outlined in ACF policy change theory – but do not posit and investigate explicit mechanisms linking the causal factors and the outcome of major policy change (Beach & Pedersen, 2016, pp. 269-71). We do not investigate explicit causal mechanisms as none are specified in current ACF policy change theory, making them beyond the scope of the current analysis. Much of the data for this paper are derived from a content analysis of Ghanaian media articles using methods similar to Olofsson, et al. (2018) and Heikkila et al. (2019).The sample of articles was created using ghanaweb.com, a website that serves as a clearinghouse for Ghana- ian news stories. Ghanaweb.com provided the most comprehensive archive of Ghanaian news stories that we could find, providing coverage from 2001 to 2019, which we took as our period of study. The ghanaweb.com news archives were searched for the following terms: “right to information bill” and “freedom of information bill” in order to identify relevant articles. These searches produced 826 news stories which were reviewed to remove duplicate stories, columns and opinion pieces, and stories that made no reference to a policy actor. The sample was further limited to include only articles from the Ghana News Agency, the Daily Graphic Online, and myjoyfmonline, three news outlets judged as credible due to their non-affiliations with political parties or political movements and their relatively muted ideological orientations. A total of 256 articles was included in the final sample. Media articles as a data source havethe benefits of being accessible, low-cost, and replicable, but reliance on them also limits the data to what is reported in the media and we tried to overcome this limitation by supplementing our analysis of media articles with data from other sources. The purpose of the content analysis was to identify the actors who were active in the policy subsystem, to identify these actors’ policy core beliefs, and to identify patterns of agreement and disagreement between them. The media articles did not provide coverage of all the actors in the policy subsystem, but did provide coverage of the most high-profile actors, which was sufficient for identifying advocacy coalitions. The coding unit in the content analysis was the descriptions of policy actors. The article sample was segmented by reviewing each article and identifying all instances in which an actor was described as being involved in freedom of information debates or processes in any way. Each actor description was given a unique identification number and was subsequently coded, the coding decisions guided by a coding frame. The coding frame was designed to capture several relevant actor attributes, including: individual names, organizational affiliations (if any), organizational types (political parties, domestic NGOs, international NGOs, etc.), policy core beliefs (whether they were pro or anti freedom of information), policy core belief rationales (their justifications of their pro/anti stand), agreements with other actors, and disagreements with other actors. Appendix A lists these coding dimensions and the categories used in each dimension. The coding frame was outlined in detail in a coding guide and, using this common coding guide, two coders coded the sample independently. The coding results with respect to policy core beliefs – the most important actor attribute from an ACF perspective – were then compared and all coding discrepancies were identified. These discrepant coding units were removed from the dataset so that there was 100 percent agreement between the coders, ensuring a high degree of inter-coder reliability on this crucial attribute. The final dataset had a total of 360 coding units with 84.7 percent agreement between the coders on organizational type and 83.1 percent agreement on core belief rationales. Any remaining coding discrepancies on these attributes Heinmiller / Osei / Danso | Investigating ACF Policy Change Theory in a Unitary Policy Subsystem 79 were treated as unreliable and excluded from the analysis. The data on agreementsand disagreements between actors proved to be unreliable, with only 69.7 percent agreement between the coders, and these were excluded from the analysis. The content analysis data, supplemented with other observations, were used to investigate the presence of advocacy coalitions in the policy subsystem, thereby determining the subsystem’s structure. The data on policy core beliefs were analyzed to determine which ideological group- ings, at the policy core level, existed in the policy subsystem. Observations of collective action within each ideological grouping were then sought in the public record to determine whether there was a non-trivial level of collective action amongst actors holding the same policy core beliefs, which would indicate the presence of an advocacy coalition. Ultimately, the number of advocacy coalitions supported by the data indicated the policy subsystem structure which, in this case, was unitary. We then investigated the first ACF policy change hypothesis by operationalizing the policy change pathways that may be present in this case: internal shocks, external shocks, and policy- oriented learning. The negotiated agreement pathway – a fourth pathway specified in the hypothesis – was not operationalized or investigated given the structure of the subsystem. The negotiated agreement pathway is logically impossible in a unitary subsystem since the subsystem, by definition, has only a single dominant coalition and negotiated agreements between multiple coalitions are precluded. Any negotiation in such a subsystem will be intra-coalition and will likely be restricted to secondary policy attributes. Internal/external shocks were operationalized using data on media coverage from ghanaweb. com. The assumption in this operationalization is that, when a policy subsystem experiences a shock, it should be evident through increased subsystem activity and increased media coverage of that subsystem. We collected data on the number of new stories matching the search terms “right to information” and “freedom of information” with the data aggregated by annual quarter for our entire period of study. We analyzed this data by looking for substantial spikes in media coverage, taking into consideration the fact that the extent of online news coverage increased over time during our period of study. Spikes in media coverage were then investigated to determine the reasons for each spike, whether these reasons constituted shocks to the subsystem, and whether each shock was internal or external to the subsystem. Policy-oriented learning was operationalized using data from the content analysis. The content analysis coded for actors’ policy core beliefs as well as their rationales for these core beliefs, and we examined these data to determine whether there was any shift in core beliefs or core belief rationales that might indicate the presence of policy-oriented learning. The data spanned 2001 to 2019 and were divided into four time periods, each period corresponding with a different presidential administration and different efforts to pass freedom of information legislation. The beliefs in each of these four time periods were analyzed to look for any evidence of shifting beliefs between these periods, which might indicate the presence of policy-oriented learning. The second ACF policy change hypothesis was investigated by operationalizing its two hypothesized causal factors: policy imposition by a hierarchically superior jurisdiction, and the advocacy coalition(s) “in power”. Since the only jurisdiction with the potential to impose policy on the Ghanaian parliament was the Supreme Court of Ghana, policy imposition was operationalized by investigating events surrounding the adoption of the 2019 Right to Information Act to determine whether it was motivated or compelled by a Supreme Court decision. To operationalize the second hypothesized factor, we drew on the ACF literature to determine when an ad- 80 International Review of Public Policy, 3:1 vocacy coalition is “in power”. Sabatier and Weible (2007, pp. 201-204) have identified several political resources that advocacy coalitions can draw upon in seeking power, including public opinion, information, mobilizable troops, financial resources, skilful leadership, and formal legal authority to make policy decisions. Nohrstedt (2011) and Heinmiller (2013) (2016) have further argued that, out of these, the most important resource is the formal legal authority to make policy decisions because wielding influence over legislators is necessary to get policy reforms through the veto points of the legislative process. Thus, we considered an advocacy coalition to be “in power” if it was aligned with a political party possessing the formal legal authority in the Ghanaian political system to make policy decisions. Data Analysis and Results: Structure of the Ghanaian Public Sector Information Policy Subsystem The first step in our analysis was to investigate the structural characteristics of the Ghanaian public sector information policy subsystem. This analysis, based largely on the content analysis data, revealed that the subsystem was unitary and mature. The policy core belief data from the content analysis overwhelmingly show that the Ghanaian public sector information policy subsystem was dominated by a pro-transparency advocacy coalition, supporting greater freedom of public information, throughout our period of study. Only one actor in the entire dataset had anti-transparency beliefs, with all others showing either pro-transparency beliefs or unclear beliefs. Appendix B shows the organizations, excluding individuals without organizational affiliations, which were politically active and which espoused pro-transparency beliefs during the four presidential administrations of our period of study. It shows how pro-transparency actors came from a wide variety of organizations and organizational types, with even the two major political parties, the left-leaning National Democratic Congress (NDC) and the right-leaning New Patriotic Party (NPP), both espousing pro-transparency beliefs. All of this shows the degree of core-belief consensus in the policy subsystem, characteristic of a unitary subsystem. There is also evidence that several actors with pro-transparency beliefs undertook collective action in an effort to secure freedom of information reforms. The best and most important example of this was the formation of the Right to Information Coalition-Ghana (RTI-Ghana) in 2003, the members of which are bolded in Appendix B. RTI-Ghana was an umbrella group comprising several organizations representing lawyers, journalists, and democracy and civil rights advocates, and which also had participation and support from several transnational organizations including the Commonwealth Human Rights Initiative and the West Africa Media Foundation. RTI-Ghana formed the core of the pro-transparency advocacy coalition and played a crucial role in educating the public, rallying supporters, and lobbying government until the 2019 legislation was adopted (Commonwealth Human Rights Initiative Africa Office, 2019, p. 14). The presence of RTI-Ghana shows clear evidence of collective action amongst many actors with pro-transparency beliefs, confirming the presence of a pro-transparency advocacy coalition. Moreover, this pro-transparency coalition was unopposed by an anti-transparency coalition, resulting in a unitary subsystem dominated by the former. Evidence also suggests that the Ghanaian public sector information policy subsystem was a mature subsystem rather than a nascent one. To distinguish between nascent and mature subsystems, Sabatier and Jenkins-Smith (1999, pp. 135-36) outlined four necessary and sufficient characteristics of mature subsystems (shown in italics below), all of which appear to be present in our case: Heinmiller / Osei / Danso | Investigating ACF Policy Change Theory in a Unitary Policy Subsystem 81

1. Subsystem participants who constitute a semiautonomous community and who share a domain of expertise. As shown in Appendix B, the subsystem had many actors with expertise in this policy domain, and who participated in freedom of information politics spanning multiple presidential administrations. These actors also had regular interactionand seem to constitute a semiautonomous community (Commonwealth Human Rights Ini- tiative Africa Office, 2019). 2. Subsystem participants who have endeavoured to influence policy for a long period of time, usually a decade or more. The origins of the subsystem stretch back to at least the mid- 1990s when new motivations for transparent and accountable governance emerged after Ghana’s 1992 transition to democracy in the Fourth Republic. A freedom of information controversy erupted in 1996 when the Bank of Ghana refused to give information on interest rates, inflation rates and national debt to the Institute of Economic Affairs, a domestic thinktank, citing national security reasons. This incident motivated several actors to take up the freedom of information cause and prompted the first draft bill on the issue in 1999 (Yeboah, 2019) 3. The presence of specialized agencies to deal with the subsystem topic at all relevant levels of government. The Government of Ghana has had a Ministry of Information, sometimes on its own and sometimes merged with another ministry, throughout the Fourth Repub- lic and even before. The Ministry of Information also shows up as a regular participant in freedom of information policy debates in multiple presidential administrations, as shown in Appendix B. 4. The presence of interest groups that have mobilized to deal with the subsystem topic. Organ- ized interests dedicated to government transparency in Ghana have existed for some time, the best examples being those who formed the RTI-Ghana coalition in 2003. While the Ghanaian public sector information policy subsystem is both unitary and mature, it is the unitary characteristic that offers a potential challenge to ACF policy change theory. Mature subsystems are quite common in the ACF literature and there is little reason to question whether ACF policy change theory has application in these subsystems. However, unitary subsystems are uncommon in the ACF literature and have a distinctive politics that may challenge ACF policy change theory. For this reason, it is worth investigating the ACF policy change hypotheses in this unitary case to see how they fare, as we endeavour to do in the next two sections. Data Analysis and Results: Investigating the ‘Pathways’ Hypothesis As described above, the first ACF policy change hypothesis, the pathways hypothesis, was investigated by collecting data on internal/external shocks and on policy-oriented learning. The data on internal/external shocks show several potential shocks during our period of study. Figure 2 shows the number of new stories on “right to information” and “freedom of information” in each annual quarter of our period of study, as compared with a five-year rolling average. The data have been adjusted to show only positive variance; that is, quarterly coverage that is above the mean. Any negative variance below the mean has been standardized to zero. Comparing quarterly coverage with a five-year rolling average was necessary in order to con- textualize the data, as Internet news coverage increased steadily and substantially during our period of study for technological and social reasons that had nothing to do with the subsystem under study. The most relevant findings in Figure 2 are the substantial and short-lived spikes in media coverage that are evident at least five times during our period of study, as these are preliminary indications of internal or external shocks to the policy subsystem. 82 International Review of Public Policy, 3:1

The most pertinent of these spikes, for our purposes, occurred in the first and fourth quarters of 2018, just prior to the passage of the Right to Information Act in early 2019. We investigated events during and prior to this time to determine whether any might have qualified as being shocking to the policy subsystem. Given that most internal shocks are the results of policy failures, and that there was no status quo right to information policy at this time that could have failed, we discounted the possibility of an internal shock. Most external shocks in the ACF come from “External Subsystem Events” (see the ACF flow diagram in Figure 1) and four types of these events are identified: changes in socioeconomic conditions, changes in public opinion, changes in systemic governing coalition, and changes in other policy subsystems. Comparing actual events with these four event types, the evidence suggests at least three external shocks to the public sector information policy subsystem in the 2016-18 period. The first external shock was a change in the systemic governing coalition when the NPP won the 2016 elections. The opposition NPP, under the leadership of Nana Akufo-Addo, secured 53.72% at the first round, defeating the incumbent President John Dramani Mahama, of the NDC, who managed 44.53% of the total valid votes. In Parliament, the NPP won overwhelmingly with 169 out of 275 seats, leaving the NDC with 106 seats (Electoral Commission of Ghana, 2016). This electoral verdict effectively guaranteed the incoming government exclu- sive executive and legislative control, creating an enabling environment for the pursuit of new policy priorities. During its eight-year rule, the NDC missed several opportunities to pass right to information reforms, including a last-ditch attempt that failed when Parliament expired in early 2017. In its election manifesto, the NPP promised to pass such reforms when it came to power (New Patriotic Party, 2016, p. 40), and the RTI coalition had cultivated good working relationships with some members of the NPP, so the change in government seemed to open a new window for reform and to add urgency to the RTI coalition’s reform efforts. The second external shock was a change in public opinion that developed from accumulated corruption scandals. Corruption has always been a major election issue in Ghana and the 2016 elections were no exception. During the campaign, the opposition NPP waged a strong anti- corruption campaign, highlighting the corruption scandals that stunned the nation during the Mills/Mahama eight-year rule (2009-2016). Key among the scandals – which are summarized in Appendix C – were the Ghana Youth Employment and Entrepreneurial Development Agency (GYEEDA) scandal, the Bus Branding scandal, and the embezzlement of funds at the Savanna Accelerated Development Authority (SADA). The rest were the GH¢ 51.2 million WOYOMEG- ATE, the Mahama Ford Gift scandal and the financial malfeasance at the National Service Sec- retariat (Stacey, 2016; GhanaWeb, 2016; Gyampo, Graham, & Yobo, 2017, p. 35). Many people, including the Executive Secretary of the Media Foundation for West Africa (MFWA), believed that the NDC government lacked the political will to be transparent and to fight corruption, hence its inability to pass right to information reforms (GhanaWeb, 2018a). Upon assuming office after the 2016 elections, the new NPP government commissioned independent audits across various state institutions, leading to additional allegations of financial malpractice involving officials of the past administration. Key among the new revelations were the Mobile Money Interoperability debacle (MyNewsGh, 2018), the Cocoa Marketing Board (COCOBOD) scandal (GhanaWeb, 2018b), and the Social Insurance and National Insurance Trust (SNNIT) software scandal (GhanaWeb, 2018c). The situation was further aggravated when scandals involving officials of the new government began to emerge in 2017. The Bulk Oil and Storage Transportation (BOST) saga (Ullo, 2018) and the Metro Mass Transit scandal (Kumsah, 2018) were significant among several allegations levelled against officials of the new regime. When prosecutions were not forthcoming, calls to fight corruption went wild and even key mem- Heinmiller / Osei / Danso | Investigating ACF Policy Change Theory in a Unitary Policy Subsystem 83 bers of the ruling government threatened to campaign against Akufo-Addo. With the near- consensus that significant measures were needed to fight corruption, the NPP government felt overwhelming pressure to act and the RTI bill became regarded as a crucial tool to improve transparency and reduce corruption. The third external shock was an impact from another policy subsystem when the Special Pros- ecutor’s Bill was passed in 2017, and Martin Amidu was appointed to the Special Prosecutor’s position (Osei-Amoako, 2018; Osei, 2017). In addition to right to information reforms, the NPP promised to establish the Office of the Special Prosecutor, an institution independent of the executive, dedicated to investigating and prosecuting corruption cases involving political officeholders and politicians (New Patriotic Party, 2016). In December 2017, the Office of the Special Prosecutor was created by an Act of Parliament and Martin Amidu, a former Attorney General who served in the NDC regime from January 2011 to January 2012, was appointed as Ghana's first Special Prosecutor. Consequently, the first quarter of 2018 was dominated by discussions on corruption and on how to ensure that the new Special Prosecutor would be effective and there were loud calls from activists, opposition parties and civil society organizations to pass right to information reforms to support his work. Altogether, the evidence in support of the presence of external shocks is compelling. A change in government, a change in public opinion, and a spillover from a related subsystem converged in early 2018 to focus unprecedented attention on the right to information issue and to motivate government action on the issue. During the 61st independence anniversary celebration in March, President Akufo-Addo suggested that the missing link in the corruption fight was a Right to Information Bill. After the summer holiday, this set off a flurry of subsystem activity in the third quarter of the year, as evidenced by the second spike in media attention during 2018, ultimately culminating in the passage of the Right to Information Act. Thus, there is not only strong evidence of external shocks, there is also strong evidence that these external shocks were contributors to the major policy change. 84 International Review of Public Policy, 3:1

Figure 2: Media Coverage of Freedom of Information Issues, 2001-19

Source: The Authors With respect to policy-oriented learning, neither the core belief data nor the core belief rationale data showed any evidence of policy-oriented learning. Given that pro-transparency core beliefs dominated throughout the entire period of analysis, there was no evidence of shifting policy core beliefs, as no actors flipped from anti-transparency to pro-transparency beliefs, or vice versa. The data on core belief rationales are summarized in Table 1 by providing the percentage of actors citing each rationale in each of the four time periods investigated. In all four periods, the overwhelmingly predominant rationale was one of fighting government corruption and improving government transparency, with all other rationales constituting mi- nor parts of the discourse. This indicates that actors’ justifications for supporting freedom of information legislation did not evolve much over time, that there was no mass movement from one rationale to another, and that policy-oriented learning at this level was not evident. Given that there was no evidence of significant changes over time in either policy core beliefs or core-belief rationales, we conclude that the policy-oriented learning pathway was probably not present in this case. Heinmiller / Osei / Danso | Investigating ACF Policy Change Theory in a Unitary Policy Subsystem 85

Table : Pro-Transparency Belief Rationales, 2001-19

Rationales Cited for Support- 2001-2009 2009-2012 2012-2017 2017-2019 ing Freedom of Information (Kufuor) (Mills) (Mahama) (Akufo- Legislation Addo)

Fighting government corruption/ 14 (58.3%) 25 (58.1%) 38 (73.1%) 14 (43.8%) improving government transparency

Supporting economic growth/ 0 (0%) 4 (9.3%) 2 (3.8%) 1 (3.1%) development

Legislation does not go far 1 (4.2%) 2 (4.7%) 1 (1.9%) 0 (0%) enough (i.e., the legislation allows too little access to information)

Improving journalism 2 (8.3%) 3 (7.0%) 4 (7.7%) 3 (9.4%)

Total Actors 24 43 52 32 Source: The Authors Altogether, our investigation found considerable evidence supporting the presence of the external shock pathway, but found no evidence supporting the presence of the internal shock pathway, or the policy-oriented learning pathway. The negotiated agreement pathway was not investigated since the presence of only a single advocacy coalition made negotiated agreement between multiple coalitions impossible. While only one pathway was present, the presence of the external shock pathway alone is sufficient to support the first ACF policy-change hypothesis in this case. Data Analysis and Results: Investigating the ‘Power’ Hypothesis The second ACF policy change hypothesis is a necessary condition with two sufficient parts: one of these is policy imposition by a hierarchically superior jurisdiction, and the other is that the advocacy coalition that instated the policy status quo is no longer “in power”. Each of these sufficient factors was operationalized independently to investigate this hypothesis. The results with respect to policy imposition are straightforward. Only the Supreme Court of Ghana had the authority to impose the 2019 Right to Information Act on the Ghanaian Parlia- ment, but an investigation of events leading to the introduction of the Act found no connection between a court decision and the reform. Thus, there is no evidence of policy imposition in this case and this part of the hypothesis is not supported. The second part of the hypothesis was operationalized based on whether an advocacy coalition was aligned with a political party possessing the formal legal authority to make policy decisions, and the results are more complex. 86 International Review of Public Policy, 3:1

In Ghana’s Fourth Republic, the formal legal authority to make policy decisions is shared between the parliament and the presidency, both of which are veto points in the legislative process. Thus far, every election has resulted in the same political party controlling both the parliament and the presidency simultaneously, with periods of power alternating between the NDC and the NPP. The content analysis data show that, for our entire period of study, both the NDC and the NPP held pro-transparency core beliefs, aligning with, and sometimes participating in, the pro-transparency advocacy coalition that dominated the Ghanaian public information policy subsystem. This indicates that the pro-transparency coalition was in power, and that an anti-transparency coalition could not have been in power, in the lead-up to the 2019 reforms, which is consistent with the second ACF policy change hypothesis. However, the hypothesis also implies that, sometime prior to our period of analysis, there was an anti-transparency coalition that was displaced from power by the pro-transparency coalition revealed by our analysis. This anti-transparency coalition would have been responsible for instating the policy status quo that was replaced by the 2019 Right to Information Act. Given the non-democratic governments in Ghana’s recent past, such an anti-transparency coalition is plausible and even probable, but our data do not provide a direct observation of such a coalition and its past presence and eventual displacement can only be inferred. Overall, our investigation found no empirical support for the presence of policy imposition but some empirical support that the coalition that instated the policy status quo was no longer in power. It is clear that a pro-transparency coalition was in power during the passage of the 2019 reforms, but it is less clear whether there was an anti-transparency coalition in the past that was displaced from power by the pro-transparency coalition, as the hypothesis implies. Thus, the available evidence is consistent with the ACF second policy change hypothesis, but additional research beyond our period of study would provide more certainty that the hypothesis is fully supported. Discussion/Conclusion The main purpose of this paper was to investigate the ACF policy change theory in a unitary policy subsystem dominated by a single advocacy coalition. There is reason to believe that unitary subsystems have a different politics than their competitive and collaborative counterparts and that, therefore, the ACF policy change hypotheses might struggle to explain major policy change in unitary contexts. The unitary subsystem we examined was the Ghanaian public sector information subsystem and, specifically, the 2019Right to Information Act reforms. Our investigation found empirical support for both of the ACF policy change hypotheses, although the evidence supporting the first hypothesis was stronger than that supporting the second hypothesis. With respect to the first hypothesis, there is clear evidence that a series of external shocks buffeted the policy subsystem in the 2016-18 period, providing a pathway for major policy change. Although none of the other pathways were present, evidence of the external shocks is strong and the presence of this pathway alone is sufficient to support the first hypothesis. There is also empirical evidence supporting the second hypothesis, but it is more equivocal. Evidence suggests that a pro-transparency coalition was “in power” during the development of the Right to Information Act, which is consistent with the hypothesis’s predic- tion, but we have no direct evidence that the pro-transparency coalition overcame an anti- transparency coalition, as is implied in the hypothesis. So the available evidence is consistent with the hypothesis but is somewhat incomplete. Heinmiller / Osei / Danso | Investigating ACF Policy Change Theory in a Unitary Policy Subsystem 87

Ultimately, we conclude that ACF policy change theory was largely successful in explaining this case of major policy change in a unitary policy subsystem. This provides some support for the theory’s implicit claim to be a general explanation for major policy change across policy subsystems of all types. However, this study was the first to investigate the ACF policy change hypotheses in a unitary subsystem, so its findings do not confirm the hypotheses and further investigations in other unitary subsystems – and collaborative and competitive subsystems, for that matter – are warranted. Only through repeated and accumulated investigations of this sort will we be able to confirm ACF theory as a general theory of major policychange across all policy subsystem types. This study was also the first to investigate ACF policy change theory in Ghanaian policymaking, with the results largely supporting the theory. This suggests that the ACF hasat least some application in explaining how major policy changes take place in Ghanaian policymaking, even though the theory was developed with established Western democracies in mind and Ghana is a relatively young, non-Western democracy. Much further investigation, in other Ghana- ian cases of major policy change, is needed before confirming the utility of ACF theory in this context, and this represents an important line of future research. Such research is also important for understanding how Ghanaian policymaking takes place and how Ghanaian democracy functions in practice.

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Appendix

Appendix A – Coding Frame for Content Analysis ● Coding Unit Identification Number ◦ Each coding unit has a unique identification number in the format: DD-MM-YY-NN-AA ● Date ◦ The date the article was published in the format: YYYY-MM-DD ● Source ◦ The newspaper, website, broadcaster, or source of the article ● Actor’s Name ◦ Their individual name, if provided in an article ● Actor’s Organizational Affiliation ◦ The organization an actor represents, if provided in an article ● Actor’s Organizational Type ◦ Coded as one of the following (select only one): Government ● A politician or staffer from the political party forming government at the national level Opposition ● A politician or staffer from a political party not forming government at the national level Public Servant ● An administrator working for a core government department or an arm’s-length agency at the national level Local government ● A politician, staffer or administrator from a sub-national government Domestic NGO ● A non-profit advocacy or interest group that is based in Ghana and seeking social change in Ghana International NGO ● A non-profit advocacy or interest group that is based in Ghana and other countries and seeking social change in Ghana and other countries Industry/Business ● Private for-profit business or business representative International IGOs ● International organizations created by governments (e.g., World Bank, IMF, UN, etc.) Heinmiller / Osei / Danso | Investigating ACF Policy Change Theory in a Unitary Policy Subsystem 91

Journalist ● Print, broadcast, or online journalist or journalist representative Academic or consultant ● Researchers based in universities or private consulting firms Other Unclear ● Actor’s Core Beliefs on Access to Government Information ◦ Coded as one of the following (select only one): Pro ● The actor states in the article that they are in favour of a general right to government information; or, the article describes the actor as being in favour of a general right to government information Anti ● The actor states in the article that they are opposed to a general right to government information; or, the article describes the actor as being opposed to a general right to government information Neutral or mixed ● The actor states in the article that they are neutral or ambivalent about a general right to government information; or, the article describes the actor as being neutral or ambivalent about a general right to government information ● The actor expresses both support and opposition to a general right to government information; or, the article describes the actor as both supporting and opposing a general right to government information Unclear ● The actor’s support or opposition to a general right to government information cannot be determined in the article ● Actor’s Rationale for their Core Belief on Access to Government Information ◦ Coded as one or more of the following (select as many as apply): Corruption Government spending/waste Economic growth and development Democracy, transparency and accountability Public demand International image Legislation goes too far (i.e., the legislation allows too much access to information) Legislation does not go far enough (i.e., the legislation allows too little access to information) Need for more study/information Electoral mandate (i.e., actor was elected to pursue/block reform) Improve journalism Other Unclear 92 International Review of Public Policy, 3:1

Appendix B: Actors with Pro-Transparency Core Beliefs

Org. Types 2000-09 2009-12 2012-17 2012-17 Pres. Kufuor Pres. Mills Pres. Mahama Pres. Mahama (NPP) (NDC) (NDC) (NDC)

Domestic ABUNTU for Construction Architects Ghana Center NGOs Development and Building Registration for Democratic Materials Council (ARC) Development Workers Union (CDD-Ghana) (CBMWU) of Ghana Anti- Trades Union Corruption Congress (TUC) Association of Coalition Building & Civil Citizen Ghana (GACC) Engineers Movement Contractors Editors Forum Ghana Ghana (EFG) (ABCECG) Ghana Anti- Ghana Bar Corruption Association Coalition (GBA) Ghana Aid Association of (GACC) Effectiveness Ghana Industries Forum (GAEF) (AGI)

Ghana Ghana Integrity Integrity Initiative Ghana Bar Center for Initiative Association Employment (GBA) for Persons Ghana with Disability Journalist (CEPWD) Media Coalition Association Ghana on RTI Integrity Initiative Federation of Institute of Museum Media Economic Council (FMC) Foundation for Affairs Ghana West Africa Journalist (MFWA) Association Ghana Aid Legal Effectiveness Resources Forum (GAEF) National House Center (LRC) Ghana Trades of Chiefs Union Congress (Northern Region) Heinmiller / Osei / Danso | Investigating ACF Policy Change Theory in a Unitary Policy Subsystem 93

National African Ghana Bar Peer Review Association (GBA) Mechanism Human Rights Governing Advocacy Center Networking Council (HRAC) Center of (NAPRM-GC) Ghana SEND-Ghana Community Radio Network (GCRN) Occupy Ghana National Union Institute of of Ghana Democratic Students Governance (NUGS) (IDEG) Ghana RTI Coalition Independent Broadcasters Institute of Association RTI Coalition Economic (GIBA) STAR-Ghana Affairs

National Union Ghana Institute of Ghana of Architects Students (GIA) (NUGS) Ghana Institute of Planners (GIP) RTI Coalition

Ghana Institute Ghana Trades of Public Policy Union Congress Options (GIPPO)

University Students Ghana ssociation Integrity of Ghana (USAG) Initiative

Ghana Journalist Association

Ghana Medical Association (GMA) 94 International Review of Public Policy, 3:1

Ghana National Association of Small-Scale Miners (GNASSM)

Ghana Private Road Transport Association (GPRTU)

Ghana Union of Professional Students (GUPS)

Human Rights Advocacy Center

Importers and Exporters

Association (IEA)

Institute of Chartered Accountants (ICA)

Institute of Public Relations Ghana (IPRG)

Lady Pharmacist Association of Ghana (LPAG)

Mission of Hope

Musicians Union of Ghana (MISIGHA)

National Association of Graduate Teachers (NAGRAT)

National Catholic Secretariat (NCS)

National Union of Ghana Students (NUGS) Heinmiller / Osei / Danso | Investigating ACF Policy Change Theory in a Unitary Policy Subsystem 95

Occupy Ghana Perfecter of Sentiments Foundation (POS)

Pharmaceutical Society of Ghana (PSG)

Polytechnic Teachers Association (PTA)

Presbyterian Church Ghana

Private Newspapers Publishers Association (PNPA)

RTI Coalition

SEND-GHANA

Ghana Trades Union Congress

University Students' Association of Ghana (USAG)

Int’l NGOs Commonwealth Africa Freedom All Africa Commonwealth Human of Information Students Union Human Rights Center (AFRIC) (AASU) Rights Initiative Initiative (CHRI) (CHRI) Amnesty Commonwealth International Human The World Bank Ghana Rights European Union Institute Initiative Election Obser- (CHRI) vation Mission Commonwealth (EUOM) Human Rights Deutsche Welle Initiative Akademie (DW (CHRI) Akademie)

Media Foundation for West Africa (MFWA) 96 International Review of Public Policy, 3:1

Govt. Attorney Ashanti Ghana Revenue Attorney Entities General and Regional Authority General and Ministry of Co-ordinating Ministry of Justice Council Justice Minerals Commission Ministry of Attorney Commission on Information General and Human Rights Ministry of Ministry of and Justice Information and Administrative National Media Relations Justice Commission (CHRAJ) for Civic Information Education Services (NCCE) Ministry of Department (ISD), Office of the Information National Media Western Region President Commission Commission on National Human Rights Commission Office of the and for Civic President Administrative Education Justice (NCCE) (CHRAJ) Office of the Vice President Ministry of National Media Communications Commission (NMC) Volta Regional Ministry of Co-ordinating Information Office of the Council President National Commission for Office of the Vice Civic Education President (NCCE) Parliamentary National Media Service Commission (NMC)

Office of the President

Office of the Vice President

Western Regional Co-ordinating Council Heinmiller / Osei / Danso | Investigating ACF Policy Change Theory in a Unitary Policy Subsystem 97

Political National Convention Convention New Patriotic Parties Democratic Peoples' Party Peoples' Party Party Congress National National Progressive New Patriotic Democratic Democratic People's Party Party Congress Congress National New Patriotic New Patriotic Democratic Party Party Congress

Progressive People's Party

Journalists Diamond FM Enquirer New Crusading Newspaper Guide

Ghana Broadcasting Corporation (GBC)

Academics/ University of Ghana Institute of Consult- Ghana School of Management and ants Communication Public Studies Administration (GIMPA)

Kwame Nkrumah University of Science and Technology (KNUST)

University of Ghana School of Communication Studies

Others Judiciary Human Rights Select Chamber of Network of Committee on Bulk Oil Uganda Constitutional, Distributors (HURINET) Legal & Parliamentary Affairs Committee on Joint Committee Constitutional, on Constitutional, Legal and Legal & Parliamentary Parliamentary Affairs Affairs 98 International Review of Public Policy, 3:1

UT Group

United States World Bank Embassy in National Unions of Ghana Civil Engineering Construction, Furniture and Wood Workers of Nigeria (NUCECFWW)

Open Democracy Advice Center of South Africa (ODACSA)

Parliamentary Committee on Finance (PCF)

Parliamentary Committee on Poverty Reduction (PCPP)

Public Accounts Committee (PAC)

Subsidiary Legislative Committee (SLC)

World Bank

Appendix C: Prominent Corruption Scandals in Ghana (2009-18) • Ghana Youth Employment and Entrepreneurial Development Agency (GYEEDA) scandal: In 2013, a journalist investigated the operations of GYEEDA and uncovered massive corruption. The government set up a five-member committee to probe the allegations and the findings largely corroborated the allegations. This led to the cancellation of all GYEEDA contracts with service providers. • Bus Branding scandal: In 2015, investigations into the branding of 116 Metro Mass Transit Buses involving GH¢3.6million revealed that the company contracted, Smarttys, over-billed the government to the tune of about GH¢1.9million. • Savanna Accelerated Development Authority (SADA) scandal: In 2014, investigation revealed that Ghana’s Accelerated Development Authority (SADA) had embezzled millions of dollars allocated to it. The inquiries showed that SADA paid GH¢32,498,000 to ACICL to plant Heinmiller / Osei / Danso | Investigating ACF Policy Change Theory in a Unitary Policy Subsystem 99 five million trees in the savannah zone but could only account for about 700,000 trees. It also found that SADA spent GH¢15 million on guinea fowl but could only account for a few of the birds. ● WOYOMEGATE: The Government of the National Democratic Congress (NDC), under President John Evans Atta-Mills, fraudulently paid a financier of the party GH¢51.2 million between 2010 and 2011. In July 2014 the Supreme Court ordered Woyome to pay the money back to the state, but the businessman did not do that. ● Mahama Ford Gift scandal: An investigation by Joy FM’s Manasseh Azure Awuni revealed in June 2016 that President John Mahama received a Ford Expedition vehicle, estimated to cost $100,000, from a Burkinabe contractor, Djibril Kanazoe. This sparked condemnation from a section of the public. Opposition politicians and some society organisations accused the President of receiving a bribe, especially after it emerged that the businessman had won two government contracts worth over GH¢100 million after the President received the vehicle. ● Financial Malfeasance at the National Service Secretariat: In 2014, officials of the Bureau of -Na tional Investigations (BNI) uncovered a GH¢7.9 million deep-rooted rot at the National Service Secretariat (NSS). Investigations showed that the amount represented the allowance paid to 22,612 non-existent service people in more than 100 districts across the country. ● Mobile Money Interoperability debacle: The NPP government cancelled an existing contract for the development of a mobile money interoperability system in 2017 and entered into a new ar- rangement to develop the same at a reduced cost. The new system cost the country lessthan $4 million, relative to the earlier GH¢4.6 billion contract amount. ● Cocoa Marketing Board (COCOBOD) scandal: Joseph Boahen Aidoo, the Chief Executive Office of the COCOBOD, alleged that Dr Opuni (former CEO) had conspired with some top officials of COCOBOD to siphon cocoa cash. A whopping $400 million was reported to have been expended during the transition period – between December 20, 2016 and January 6, 2017. ● Social Insurance and National Insurance Trust (SNNIT) software scandal: The Ghana Social Se- curity and National Insurance Trust (SSNIT) software corruption scandal involved the procurement of ICT infrastructure at a cost of $72 million, a price tag that was well over the initial amount estimated for the project. The investigation was started in August 2017 by the Economic and Organized Crime Office (EOCO) after the allegations became known. ● Bulk Oil and Storage Transportation (BOST) saga: Bulk Oil Storage and Transportation (BOST) was accused of fraudulently selling five million litres of contaminated fuel to two unlicensed companies, Movepiina and Zup Oil, which were allegedly set up few days before the sale, making Ghana lose about GH¢7 million in revenue. ● Metro Mass Transit scandal: The staff union of the transport company petitioned the Transport Minister to demand the removal of Mr Aboagye for full-scale investigations into his alleged corruption and procurement breaches. Mr Aboagye was accused of breaching several procurement laws in the acquisition of some 300 buses since taking over the company in 2017. International Review of Public Policy, Vol. 3, N°1, 100-120, 2021, https://doi.org/10.4000/irpp.1638

Ambiguity, Uncertainty and Implementation

Kristin Taylor Associate Professor, Department of Political Science, Wayne State University, USA Stephanie Zarb Ph.D. Candidate, Department of Political Science, Wayne State University, USA Nathan Jeschke Doctoral Student, School of Public Affairs, University of Colorado Denver, USA

Abstract In policy implementation the roles of ambiguity and uncertainty have been theorized but insuf- ficiently tested. This study contributes to the policy process literature by arguing that ambiguity and uncertainty are two sides of the same coin in implementation. Their effects arelinked to the credibility of policy, the clarity of goals, and agency capacity. We analyze ambiguity and uncertainty through the lens of post-disaster policy in local government using primary qualitative data from 22 local government officials across 8 counties and 6 cities that were affected by Hurricane Harvey. We find that the credibility of a policy is evaluated separately from the credibility of the formulator; experience moderates the effects of ambiguity; and uncertainty in implementation has a similar effect as ambiguity and is not lessened with more information. The distinction between the political manipulation of ambiguous circumstances and the rational, technocratic approach to gathering more information to reduce uncertainty may be less clear than previously considered.

Keywords policy implementation, ambiguity, uncertainty, local government, disaster, Multiple Streams Framework

This research is funded through the Decision, Risk & Management Science and Political Science Programs of the National Science Foundation, Award #1763218. Taylor / Zarb / Jeschke | Ambiguity, Uncertainty and Implementation 101

Introduction A fundamental challenge in advancing knowledge of the policy process is understanding the apparent gap between how policy is formulated and implemented (Baier et al., 1986; Matland, 1995; O’Toole, 1995; Pressman & Wildavsky, 1973). There are two common explanations: the first is that ambiguity in formulation allows for political deal making to pave the way for policy change (Herweg et al., 2018); the second is that understanding technical and scientific information in the policy process creates uncertainty that actors must contend with when weighing policy options (Jenkins-Smith et al., 2014; Weible et al., 2009). The extent to which policy actors can manage ambiguity and uncertainty contributes to learning about which policy tools to implement after a failure (Howlett, Ramesh & Wu 2015; May 1992), particularly after a disaster (Albright & Crow 2019; Birkland 1997; Crow & Albright 2019; Sapat et al. 2011). The objective of this study is to examine the role of ambiguity and uncertainty in policy implementation. On one hand, policy implementers face uncertainty, or having to make decisions in the face of limited information (Jones & Baumgartner, 2012). Uncertainty is resolved with more information or better use of existing information, allowing for boundedly rational, technocratic decision-making. On the other hand, ambiguity, or that idea that policy makers will have different ways of understanding policy problems (Herweg et al., 2018; Zahariadis, 2008), is resolved by political activity that allows for different interpretations of the policy problem (Cairney, 2019). We conceive of ambiguity and uncertainty as cross-cutting concepts in the Multiple Streams Framework (Herweg et al., 2018), the Advocacy Coalition Framework (Jenkins-Smith, Nohrsted, & Weible Sabatier 2014), Punctuated Equilibrium Theory (Jones & Baumgartner, 2012), and policy learning (Dunlop & Radaelli, 2018). The analysis relies on data collected from open-ended interviews with 22 local government officials in 14 cities and counties in Texas that were implementing hurricane and flood hazard mitigation policies after Hurricane Harvey. We find that implementation is influenced by ambiguity, but experience with the policy may moderate their effects. We alsofind that uncertainty is not always lessened by more information, therefore rendering its influence to be more similar to ambiguity than previously conceived. A Framework for Understanding Ambiguity and Uncertainty in Implementation: Credibility and Clarity We introduce a theoretical framework grounded in the policy implementation literature focused on evaluating the impact of ambiguity and uncertainty as barriers to policy implementation (Fowler, 2020; Goggin et al., 1990; Manna & Moffitt, 2019; Matland, 1995; O’Toole, 1995; Zahariadis, 2008). By operationalizing key concepts of ambiguity and uncertainty, we can un- pack the influence of each of these concepts on policy implementation within a nested system of government. Broadly speaking, ambiguity refers to the idea that there are multiple ways to interpret policies (Zahariadis, 2008), and uncertainty refers to the idea that policy implementers may not understand those policies (Jones & Baumgartner, 2012). In this study, we examine implementation in the U.S. federal system of government. This means that policy implementation occurs within a nested system of federal, state, and local levels where local policy makers face significant challenges in implementing policies designed by federal and state agencies. The literature makes a clear distinction between ambiguity, which cannot be lessened with more information, and uncertainty, which can be resolved with more information (Cairney, 2019). We use the frame of policy credibility in implementation to articulate the dynamics 102 International Review of Public Policy, 3:1 of ambiguity. Uncertainty is examined in terms of the clarity of policy goals and capacity of municipal governments to implement mitigation and recovery policies. The central theory of this study is that the credibility of policymakers, the clarity of policy goals, and capacity of implementers are important influences on decisions made during implementation. Ambiguity, Credibility and Package Deals In order to implement a policy, local decision makers must come to a consensus on what the policy problem is and which policy tools to use to solve it. Ambiguity refers to the idea that because there are many ways to understand a policy problem (Cairney, 2019), the goals of a proposed policy, and the means to achieve the desired goals (Matland, 1995), it is difficult for officials to come to a consensus. Thus, political gamesmanship develops between policy implementers competing to push forward their preferred problem definitions and policy solutions. Policy implementers may not have the time or ability to gather and analyze all available information and will likely rely on sources they trust and adapt information to beliefs and biases they already hold (Cairney, 2019). The literature suggests there is a clear relationship between the perceived credibility of the institutions which create a policy, the messages they send, and the willingness of local government officials to implement said policy. The communications model of intergovernmental implementation asserts that messages sent by authoritative senders to willing receivers will be more quickly and faithfully acted upon than less credible messages sent to unwilling receivers (Goggin et al., 1990). The concern for how bureaucratic discretion is used is whether the messages being sent from top-level government agencies are perceived as credible, whether the sender is considered authoritative, and whether local governments are willing to act upon the information. In this model, state governments are often in the role of intermediaries and interpreters between national and local governments (Hill & Hupe, 2002). For the use of bureaucratic discretion in the context of policy implementation, two important questions are: (1) whether the messages received from the federal government are perceived to be credible, and; (2) the extent to which those messages are considered to be authoritative as they are sent from federal to state to local officials responsible for hazards and disasters. The relative authoritativeness of the federal government with respect to mitigation has been uneven. For example, federal incentives to mitigate have been relatively ineffective at influencing local planning for disasters (Berke et al., 2014). Operationalizing and identifying credibility can be a challenge because it is based on the perception of the policy by an implementer (May & Jochim, 2013). Political commitment is an important signal for the credibility of a policy (Liu et al., 2018). In a nested governance system, where the local implementing government is on the receiving end of policies that have already been formulated, perceived credibility becomes even more complicated. We distinguish between the credibility of the agency sending the policy message and the credibility of the policy that agency is sending the message about. Decoupling the credibility of the agency and the credibility of the policy allows for the possibility that a credible actor may encourage implementation of a policy that lacks credibility, or an actor that lacks credibility might encourage implementation of a policy that is credible. Thus, this study poses the following: Proposition 1: Policies are less likely to be implemented when the credibility of the actors who formulated the policy is low. Taylor / Zarb / Jeschke | Ambiguity, Uncertainty and Implementation 103

We expect that implementation of various policy tools in the post-disaster environment will be affected by ambiguity. For policy implementation after a disaster in a nested system of government, we expect that where the policy is mostly transactional and administrative – for example disbursing personal assistance to persons adversely affected by the disaster – there will be low ambiguity. In contrast, where the policy is less transactional – for example when changing building codes - ambiguity about the policy’s goals will remain low but the political conflict will be high because changing the building codes, thus increasing cost of construction, is highly contested (Albright & Crow, 2015; O’Donovan, 2017b). Through the lens of ambiguity and conflict (Matland, 1995), we would expect to see outcomes determined by resources in transactional and administrative policy areas and outcomes determined by political power in less transactional policy areas. The idea of political compromise and package deals that happen at the highest policy making levels during formulation can undermine the credibility of a policy in the eyes of the local actors in agencies responsible for implementation (Zahariadis, 2008). This is particularly true when implementation happens in a nested system of government, where the strategies and tactics used in policy formulation happen without the inclusion of the local policy makers responsible for policy implementation. Policies which are a part of a package of policy programs are likely to be the result of political deal making, gamesmanship and manipulation of the policy problem, and are thus likely be more ambiguous. Thus, this study proposes the following: Proposition 2: Policies are less likely to be implemented when they are part of a package of policy programs. Uncertainty, Clarity, and Capacity Understanding the differences between the stated intention of a policy and its outcome is an important problem of policy implementation (Ferman, 1990; Mazmanian & Sabatier, 1983; O’Toole, 1995). The literature suggests that all interested staff and agencies might agreeon what the end result of the policy should be but they do not necessarily agree on how to get there (Pressman & Wildavsky, 1973). Evidence-based policy making (EBPM) suggests that while policy makers may have limited time and attention to deal with problems, they are goal oriented and desire to get decisions “right.” The EBPM model predicts that policy makers desire to seek out evidence to determine the best possible solutions (Cairney, 2019); where policy goals are clear and messages sent regarding the policies are easily interpreted, implementation is more likely. Thus, the clarity of a policy in implementation is critical. In the US context, policy implementation can often take place in a nested system where a great deal of responsibility rests with state and local governments. For example, the role that states play is important because planning mandates, particularly for land use and hazard mitigation, are influential on the capacity and quality of local land use plans (Berke et al., 2014). This is because the federal government shares most resources and creates obligations for states in many cases. State governments are therefore in the middle of the communications chain between the top-level policy designers and local implementers. Crucially, “state level implementers form the nexus for the communication channels and these implementers are the target of the implementation-related messages transmitted from both federal and local level senders” (Lester & Goggin, 1998). Indeed, when the policy standards and expectations about enforcement are confusing, implementation may be undermined (Liu et al., 2018). 104 International Review of Public Policy, 3:1

When the federal government sends implementation messages that are considered unclear, states play an important role in sending more authoritative messages to local governments that implementation is important. When the federal government sends messages about policy preferences to states, the messages can be distorted, either intentionally or unintentionally (Van Meter & Van Horn, 1975). As recipients, “state level implementers must interpret a bar- rage of messages. Structuring the interpretation process are the form and content of the messages and the legitimacy and reputation of the sender. Therein lies the key to implementation’s variability” (Lester & Goggin, 1998). The clarity of a policy output is potentially related to the clarity of the information about the policy goals. Therefore: Proposition 3: Policies are more likely to be implemented when policy makers send clear messages about the goals of a policy. Finally, the capacity of government is important for implementation. We define capacity as the ability of a local government to reduce uncertainty about policy tools. There is a significant body of literature that indicates that mid-level government managers are important for creating the conditions under which ground-level implementers can interpret a policy in a way that is consistent with its stated goals (Cloutier et al., 2016; Hupe, 2011; May & Winter, 2009; Meier & O’Toole, 2002; Ricucci, 2005). We conceive of capacity as the ability of boundedly rational decision makers in local government (Jones, 2003; Simon, 1991)to make a policy choice after disaster. That ability to make a choice is bounded by cognitive ability and governing capacity to interpret policy goals. Munici- palities play an important role in translating national policy goals. The extent to which municipal managers emphasize national goals facilitates consistency in street-level bureaucrats implementing policies that are consistent with the national goals (May & Winter, 2007). If there is uncertainty at the local level about the goals of a policy, its successful implementation is less likely (Goggin et al., 1990), thus: Proposition 4: Policies are less likely to be implemented when policy implementers are unable to interpret the goals of a policy.

Case, Methodology and Data This study uses primary qualitative data on local government decision making after Hurricane Harvey. A qualitative approach is appropriate for this study because our objective is to identify the characteristics of ambiguity and uncertainty, rather than predict the effects of them. Hur- ricane Harvey was selected as the case because of its severity, scope, and impact on varying communities across a wide region of the State of Texas. Hurricane Harvey made landfall near Rockport, Texas, on August 26, 2017, as a Category 4 storm. Harvey affected 32 counties in Southeast Texas, warranting a Presidential Disaster Declaration (Chokshi & Astor 2017). Al- though the damage was widespread, the severity of the Hurricane varied significantly from one community to another. For example, the city of Houston experienced Harvey as a significant rain event, causing urban surface flooding. But communities along the Coastal Bend region experienced the effects of Hurricane as a wind event and the Gulf Coast region of Texas experienced Harvey as a flooding event. It ties with Hurricane Katrina as the costliest hurricane in United States history (Blake & Zelinsky 2018). Cities and counties were selected to account for varying impact of the hurricane—major cities like Houston felt the effects of the disaster, as did rural counties with no major cities, like Brazoria County. Taylor / Zarb / Jeschke | Ambiguity, Uncertainty and Implementation 105

Using an open-ended interview questionnaire that was guided by the literature, we conducted 15 open-ended interviews with 22 local government officials across 8 counties and 6 cities impacted by Hurricane Harvey in August 2018 and March 2019. The interview subjects were selected because we identified them to be key decision makers in their communities about post-disaster policy implementation. The interview subjects included county judges (an elected position in the State of Texas that functions like a county executive), emergency managers, community planners, mitigation specialists, floodplain managers, city managers, and long- term recovery specialists. A codebook was developed to conduct a content analysis of the interview transcripts and we conducted a preliminary analysis of a cross-section of the interviews to pilot test the codebook. Some terms were refined, and additional codes were included to clarify for evidence of credibility, communications, and capacity prior to and after Hurricane Harvey. The interview transcripts were analyzed in QDA Miner, a computer assisted qualitative data analysis package (CAQDAS) created by Provalis Research. Each interview was coded separately by two independent coders. The keyvariables of interest for this paper are included in Appendix A. After the interviews were coded, intercoder reliability was checked. Intercoder reliability was 70.8% for frequency of codes per case, 16.4% for presence or absence per case, and 69.4% for agreement by code importance. Discrepan- cies were resolved by agreement between independent coders. Frequency counts were then conducted of the coded segments of each interview. These frequency counts were then used in the analysis and cross-tabulation. In some charts, the frequency counts were transformed into categorical variables. For example, to determine whether the speaker saw FEMA as credible, not credible, or neutral, the total number of mentions of FEMA was analyzed. If the majority of the mentions were “not credible”, then the interview was coded as “FEMA not credible”; if a clear majority of mentions were “credible”, the interview was coded as “FEMA credible”, if there was no clear majority, or if the majority of mentions were coded as “neutral”, the overall interview was coded as “FEMA neutral.” For some variables, neutral and not frustrated were merged into a single category. Secondary data measuring demographic and political characteristics was also included in this study. The demographic data is from the U.S. Census Bureau. The 2016 voting data was pulled from the M.I.T Election Data Science Lab in the U.S. President Precinct-Level Returns 2016 database (MIT Election Data and Science Lab, 2018). For the municipalities, their individual precinct maps were projected onto a map displaying municipal boundaries to create a list of included precincts for each municipality. If any part of a precinct was inside the municipal boundary, the votes from the entire precinct were included. For community government ex- penditures and revenue, each community’s budget was downloaded from their website. The revenue collected was expected revenue for FY 2018 in the general fund only; no special sources of revenue were included. The number of major disaster declarations per community was obtained from the FEMA (Federal Emergency Management Agency, n.d.). Table 1: Community Characteristics Communities in the Study Area

Source: Compiled by authors 106 International Review of Public Policy, 3:1

Analysis and Discussion We present the analysis of the qualitative data and examine the results on themes of ambiguity and uncertainty. First, we begin by examining ambiguity in implementation in two ways: (1) the credibility of the policy and the agency; and; (2) the credibility of a package of policies. Then, we assess uncertainty in implementation through the lenses of the clarity of policy goals and local interpretation of policy goals. Policy and Agency Credibility The perceived credibility of federal and state actors by local government decision makers was an important element for policy implementation following Hurricane Harvey. Based on the frequency analysis of the interview transcripts, Table 2 demonstrates that FEMA was perceived as not being credible (22 mentions of not credible versus 9 mentions of credible) while agencies in the State of Texas were viewed as credible or neutral. This distinction is important because FEMA, as the federal agency that formulates most national policies for mitigation, is often the source of policy guidance, technical support and funding for local governments to implement disaster mitigation policies. If local governments do not perceive FEMA to be credible, it implies that local governments would be unlikely to implement mitigation policies, secure funding through FEMA’s grants program, or seek out technical assistance to improve capacity. The US Army Corps of Engineers and the Texas Department of Emergency Management were both perceived as being credible actors. Other agencies were mostly neutral, including US Housing and Urban Development, US Small Business Administration, Texas General Land Office, Texas Department of Transportation, and various NGOs. This is important because FEMA’s credibility amongst communities which have experienced fewer disasters is low, while the state agencies continue to be viewed as credible. Table 2: Frequency of mentions of credibility for federal, state, and local agencies

Source: The Authors Proposition 1 stated that policies are unlikely to be implemented when the credibility of the actors who formulated the policy is low. This follows the finding of Lester and Goggin (1998) that the key to variability in implementation is based on the “legitimacy and reputation of the sender” as well as the “willingness of the receiver.” To further examine whether local governments who perceive FEMA as lacking credibility would decide to implement a federal policy at all or decide to implement it incompletely (Lester & Goggin, 1998) we analyzed the relationship Taylor / Zarb / Jeschke | Ambiguity, Uncertainty and Implementation 107 between perceived agency credibility and policy credibility. Several communities which found FEMA to be not credible still implemented several FEMA polices. Consequently, we examined the perceived credibility of various FEMA policies to determine the impact of the credibility of the sender (FEMA) on the willingness of the local policy implementers to enact various FEMA policies. In terms of the credibility of the policies themselves, the analysis demonstrates that many of the policies to mitigate and recover from Hurricane Harvey that were available to local governments for implementation were viewed as credible. Table 3 shows that land acquisition and relocation, revised building codes, Community Development Block Grants (CDBGs), drain- age projects, base flood elevation modifications, and Hazard Mitigation Grants (HMGs) were viewed as credible. Table 3: Perceived Credibility of Individual Policies and Programs

Source: The Authors One theme that emerged in several of the interviews was that FEMA’s grant programs, which allowed municipalities to apply for federal funds to offset the cost of purchasing homes in the flood plain, were perceived as not credible. For the Post Disaster Buyout Program1 the most frequently cited reasoning for buyouts being less credible was loss of the property tax base. One respondent stated: Once you buyout once, you won’t do it again. I’ve not seen another county do it. It’s too much of a tax burden on the county. In Bevil Oaks, for example, if you buyout a property and the next-door neighbor doesn’t buyout that neighbor complains if you don’t do the maintenance. Buyouts also reduce the tax base. In Port Arthur, you can’t buyout or you lose your tax base. We bought out after Ike. The problem is that we ended up owning the properties and you can’t do anything with them. You lose the tax base. Without one doubt that drove the decision-making. Plus, we have to cut

2 — There are several different FEMA grants which allow municipalities to purchase and remove homes from the flood plain at full pre-disaster value. The majority of post-Harvey buyouts would have been done using Post-Disaster Hazard Mitigation Grants. In this paper we use the generic term “Post Disaster Buyout Program” to refer to homes purchased with Hazard Mitigation Grant money released after a natural disaster. 108 International Review of Public Policy, 3:1

grass. We spend millions of dollars per year cutting grass on properties we can’t do anything with. No one wants a park there. In Texas, property rights are a big deal. Eminent domain lets us do it, but no one in TX believes in it. You are talking about property that’s been in families in generations – you can’t take it. The programs themselves tended to be evaluated independently of the local policy maker’s opinion of the federal organization. This observation is supported by the fact that a community’s overall impression of whether FEMA was credible did not impact their belief in the credibility of FEMA’s guidelines for base flood elevation/building codes. In fact, those who found FEMA to be “not credible” were slightly more likely to find building codes/freeboard/base flood elevation standards credible. For the Post Disaster Buyout Program, communities which found the Post Disaster Buyout Program credible were more likely to find FEMA credible. As shown in Figures 1, 2, and 3, a community’s perspective on the credibility of the Post Disaster Buyout Program did not appear to be related to their view of the credibility of the FEMA standards pertaining to building codes/freeboard/base flood elevation. Figure 1: Perceived credibility of FEMA and the Post Disaster Buyout Program

Source: The Authors

Figure 2: Perceived credibility of FEMA and building codes/enforcement of base flood elevation/freeboard requirements

Source: The Authors Taylor / Zarb / Jeschke | Ambiguity, Uncertainty and Implementation 109

Figure 3: Perceived credibly of the Post Disaster Buyout Program and perceived credibility of restrictive building codes/enforcement of base flood elevation/freeboard requirements

Source: The Authors

To better understand the influence of disasters on implementation, we conceive of them as focusing events (Birkland, 1997), and the accumulation of experience with disasters over time can lead to policy change (O’Donovan, 2017a). Experience with hurricanes appears to be a crucial factor in the communities’ perceived credibility of FEMA. The more major disaster declarations a community experienced, the more likely they were to view FEMA as credible. The crosstab analysis of the number of major disaster declarations a community had experienced between 1997-2017 and their perceived credibility of FEMA revealed that among the communities which had experienced a higher number of disasters, 62% found FEMA credible or were neutral, compared to just 38% which found FEMA not credible. For those communities which experienced a lower number of major disaster declarations related to flooding, 67% found FEMA not credible, whereas 33% were neutral or found FEMA to be credible. Table 4: Number of Focusing Events by Perceived Credibility of FEMA

Source: The Authors The Post Disaster Buyout Program can be characterized as a policy where ambiguity is low. Local policy officials understood the buyout mechanism and the resources required to implement the Post Disaster Buyout Program. For those policy makers which found the Post Disas- ter Buyout Program to be less credible, they often cited the loss of the property tax base and the increased maintenance costs associated with the program. This is consistent with what was observed regarding the buyout program in Texas; where powerful policy makers favored the program, buyouts occurred, and where powerful policy makers opposed the program, it was not implemented. 110 International Review of Public Policy, 3:1

Another policy with low ambiguity is implementing more stringent building codes, including higher standards for base flood elevation and freeboard. However, policy maker’s expressed concern about the rising cost of construction and political push back regarding increased building standards. One theme that quickly emerged was that most of the political pushback, both from policy makers and the general public, subsided after experiencing a flooding event firsthand and observing that those buildings built to a higher standard had a much higher survival rate. This is consistent with our earlier observation that communities which encountered more disasters were more likely to perceive FEMA as credible. Drawing on the work of Lester and Goggin (1998), Proposition 1 stated that policies are unlikely to be implemented when the credibility of the actors who formulated the policy is low. While we did find support for Proposition 1, we found that the relationship between credibility, policy, and policy implementation is multifaceted. Some communities which did not find FEMA credible still found certain FEMA policies credible, and went forward with the plan to implement them. Additionally, communities with more experience tended to find FEMA more credible. Thus, the relationship between credibly and policy implementation varied based on three important dimensions: the credibility of (1) the agency that formulated the policy; (2) the specific policy tool itself; and (3) the experience level of local government policy makers. Credibility and Policy Packages Certain policy tools to mitigate the effects of hurricanes are stand-alone policies, like building code changes and base flood elevation modifications. They are not part of a larger package of policies, in contrast to the Community Development Block Grant—Disaster Recovery program (CDBG-DR), which provides funding for recovery that includes support for mitigation, housing, and other post-disaster recovery efforts that prioritize low-income communities. For stand-alone policies, the goals are clear, the objectives are discrete, and their impact is readily observable. For example, several communities have cited that the reason they believe in these standards is because they could observe, first-hand, how properties built to the new standards faired during Harvey. As one respondent noted: I have a great photo from May 16th when we had a flood. Its aerial from a drone. There is a Mexican food restaurant built to new codes, and it’s high and dry sur- rounded by water. It told the story. In contrast, the CDBG-DR is a major deferral policy that is designed as part of a so- called “package deal” for post-disaster mitigation and long-term recovery, the CDBG-DR program, run through the US Department of Housing and Urban Development. These CDBG grants are large grants of federal aid to rebuild or restore housing, assist with community development and mitigate the future effects of disasters. CDBG grants come with significant funding but are accompanied by many rules and requirements that local governments may perceive as not meeting local standards. The CDBG grants were mentioned in interviews, but the analysis does not demonstrate the phenomenon of package deals as being nearly as problematic as the literature indicates that they should be. CDBG-DR block grants were mentioned in 5 interviews, but their credibility was only discussed in 3 interviews, and in only 1 did the interview subject perceived them to be credible. We did find support for this phenomenon in that the CDBG-DR grants were policies with very high ambiguity. Where political will to implement CDBGs was high, policy makers and grass roots coalitions combined to garner support. The one community where political support was high stated the following: Taylor / Zarb / Jeschke | Ambiguity, Uncertainty and Implementation 111

I’m proud of our commissioners. They are dedicated to using the Community Devel- opment Block Grant for its purpose, for low-moderate income areas and not for cost- sharing with other grant programs. Using for cost-share is not using the CDBG’s how they are intended, and cannibalizes that money. We have a 2.5-million-dollar bond going on the ballot to help us make sure CDBG money stays where it needs to go. We will use federal money to cost share. However, in the other 2 interviews that mentioned CDBG-DR and thought it lacked credibility, they either perceived that it was a federal cram-down or they felt the requirements were inap- propriate for their local context. For example, a comment from one participant with themes about package deals with CDBG block grants was: Storms don’t discriminate based on income, I get why it’s need based, but you can have money that you can spend in a non-low-moderate census track, a pond that benefits a low-moderate track, and it won’t be eligible. That means with regards to infrastructure funding, you may not be able to place the money where it can do the most good for the most people. Thus, we accept that we have mixed and weak findings for Proposition 2 and can neither accept nor reject the theory that policies are unlikely to be implemented when they are part of a package of policy programs. We did find support for the idea that stand alone polices are easier to implement. Clarity of Policy Goals There is still a gap between the way federal policies are designed to work and the way that local policy makers understand how these policies are supposed to be implemented. As Table 5 demonstrates, local policy makers felt the federal communication of information and of policy goals were unclear. Table 5: Local government perception of the clarity of information and messages sent by federal and state government agencies.

Source: The Authors State communication was perceived as being clear (3) compared to being explicitly unclear (1). This reinforces the idea that states can play a key role between the federal government and local policy makers. Public statements by TDEM were nearly identical to FEMA, which suggests that clarity of policy messages, like beauty, may be in the eye of the beholder. Federal policy goals were more likely to be unclear (6) than clear (3). State policy goals were viewed as being unclear in one instance and clear in zero instances. This is consistent with what would be expected because federal flood mitigation policy is constructed at the federal level, and therefore state policy goals are unlikely to be a factor. 112 International Review of Public Policy, 3:1

The EBPM framework suggests that policy makers intend to make the “right” decisions by seeking out evidence to determine the best policy solutions (Cairney, 2019). However, they are restricted by limited time and attention. In the case of post-flooding policy implementation and consistent with what we found in our interviews, local policy makers desired to obtain grants from FEMA to engage in recovery and mitigation projects. One common theme throughout many interviews was that local officials did not have a solid understanding of FEMApolicies or goals. Many respondents expressed frustration and confusion with the intergovernmental implementation process. Despite acknowledging that they had attended FEMA sponsored workshops and received assistance with grant writing, it was clear that many local officials were unable to reduce the uncertainty of the available policy tools. One important example of this confusion is that local governments had an understanding of disaster mitigation that was distinctly different from their federal and state counterparts. At the local level in several municipalities, local policy makers used the term mitigation to broadly apply to many functions that are academically and federally defined as either preparedness or recovery. As a result, there was a great deal of confusion with local policy makers applying for federal mitigation focused grants to accomplish recovery or preparedness related items. These grants were subsequently fraught with problems, going through multiple rounds of drafts or being ultimately rejected. The literature indicates that uncertainty about technical information should be resolved by more information (Jones, 2003; Simon, 1991), yet despite FEMA push- ing information and workshops, local policy makers remained unable to successfully apply for grants, growing frustrated with FEMA in the process. A common example of this uncertainty about what hazard mitigation is generally and what the goals and activities are that are supported by the HMGP is as follows: I have one project that they ruled totally ineligible, which is stupid. It’s all about the communication; every piece of communication was taken out for six weeks. Do you know under the Hazard Mitigation Program I can’t create a fiber optic loop to correct that because it wasn’t there before. It’s the most asinine thing I’ve ever seen. Another example of a local government official expressing frustration about FEMA andtrying to obtain hazard mitigation funding after Hurricane Harvey conflates mitigation with recovery and preparedness activities and demonstrates a misunderstanding of what federal mitigation policies can be used to achieve at the local level: FEMA is terribly slow; we are coming up on 2 years and we don’t have a water tower. We lost our water tower in the storm. The water still flows; the water tower creates pressure. We are maintaining water pressure with pumps. It fluctuates. It’s hard on our infrastructure. When we started with FEMA, we had an 8-leg water tower, but it sat in the flood plain. We wanted to get a modern single stem storm resistant water tower. We sold it as mitigation for the future. Yay all good. But then they said it’s not mitigation, it’s improvement [so] we can only put back what you had. We get to the end of that and they changed their mind again. We are getting what we wanted to start with, but it has been frustrating. In many communities, local policy making officials were frustrated because they failed to understand why their hazard mitigation grants were rejected. Many of these projects were not mitigation projects. An example is grants to “harden critical facilities”, install communication equipment, and build shelters. Contrary to what we would expect, the condition of uncertainty persists despite instructions attached to FEMA grants and local municipalities conveying that they attended workshops hosted by FEMA on the grant process. In our analysis, in communi- Taylor / Zarb / Jeschke | Ambiguity, Uncertainty and Implementation 113 ties whose definition of mitigation did not match FEMA’s, 50% reported being frustrated with FEMA. In communities that understood FEMA’s definition of mitigation, only 21% gave an- swers indicating they were frustrated with FEMA. Unclear communication of policy preferences from the federal level adversely influenced policy implementation, as indicated in Table 6. Table 6: Impact of the understanding of FEMA’s definition of mitigation and a communities’ level of frustration with FEMA

Source: The Authors Thus, we find there is support for Proposition 3; policies are unlikely to be implemented when policy makers send messages about the goals of a policy that are unclear. Capacity and Interpretation of Policy Goals The EBPM framework states that local decision makers are boundedly rational individuals who strive to make the best decisions possible, while operating under significant time constraints (Jones, 2003; Simon, 1991). It argues that decision makers will attempt to gather evidence to make the best decision possible while recognizing that there are barriers (time and attention) that will prevent optimal decision making (Cairney, 2019). The ability of local officials to make decisions should be influenced by both cognitive ability and governing capacity. Governing capacity is conceived of as an important factor for creating the conditions under which ground- level implementers can interpret a policy in a way that is consistent with its goals. Conventionally, we would expect that a lack of understanding about mitigation to be considered uncertainty about technical or scientific information (Jenkins-Smith et al, 2014; Weible et al, 2009). We therefore proposed that municipalities with more governing capacity are likely to be better suited to interpret policy goals. We used the number of full-time equivalent municipal employees and general fund revenue per capita as indicators of governing capacity. We hypothesized that municipal governments with higher rates of employees per capita and revenue per capita would have more resources to invest in interpretation of policy goals. We found that greater governing capacity did not translate to better understanding of the definition of mitigation or less frustration with FEMA. Many of the post-disaster policies available to local decision makers have distinct goals, either recovery or mitigation related. An important part of implementing those policies is submitting a grant application that details how the local government will reach those recovery or mitigation related goals. We found that in communities where there was uncertainty about the goals of a policy, they were unsuccessful in applying for those grants. Interestingly, policy makers from municipalities with less general fund revenue per capita and fewer employees per capita were slightly more likely to understand FEMA’s definition of mitigation and slightly less likely to be frustrated with FEMA. To further understand this phenomenon, we decided to examine the impact of experience with the policy problem as another 114 International Review of Public Policy, 3:1 possible explanation. We operationalized experience with the policy problem as the number of hurricanes for which federal aid was authorized over a 20-year (1997-2017) period. We found that municipalities with more experience responding to hurricanes were far more likely to understand FEMA’s definition of mitigation and to be less frustrated with FEMA. We conclude that while we find support for Proposition 4 - that policies are unlikely to be implemented when policy implementers are unable to interpret the goals of the policy - we posit that experience, not governing capacity, is key to municipalities understanding the goals of policies and successfully implementing them. The results are presented in Table 7. Table 7: Understanding of Mitigation and Frustration with FEMA by Community Charac- teristics

Definition of Mitigation Frustration with FEMA Consistent with FEMA Not Not Consistent Frustrated Consistent Frustrated General Fund Revenue per Capita Higher (>$1000.00) 4 4 7 1 Lower (≤ 999.99) 10 4 8 6

Number of Full-Time Equivalent Municipal Employees per Capita More (> .008) 5 6 7 4 Fewer (≤.007) 9 2 8 3

Number of Focusing Events Several (>15) 11 2 11 2 Some (≤14) 3 6 4 5 Source: The Authors Uncertainty and Ambiguity For Propositions 1, 3, and 4, we find support for the connection between the clarity of the message, the clarity of the goals of the policy, and policy implementation. Most surprisingly, we found evidence of more ambiguity in implementation than we had anticipated. There was ambiguity in how local government officials perceived the federal government’s policygoals and preferences for how to mitigate after Hurricane Harvey. But more importantly there was considerable evidence that the amount of experience local government officials had contributed to both their ability to understand federal governmental activities in disaster governance and their ability to navigate ambiguous conditions surrounding policy implementation. Taylor / Zarb / Jeschke | Ambiguity, Uncertainty and Implementation 115

Successful policy implementation requires reducing both uncertainty and ambiguity, and the literature suggests that where uncertainty can be reduced by more information, ambiguity cannot be reduced because there will always be multiple ways of interpreting situations. In our study, we found overwhelmingly that experience reduced both uncertainty and ambiguity, leading us to conclude that the terms are closer than the literature would suggest, and that experience is key in policy implementation. We find ambiguity and uncertainty to be two sides of the same coin. In our findings training workshops, grant writing assistance, and other programs designed to reduce uncertainty were unsuccessful. This suggests that the distinction between uncertainty and ambiguity may be less clear than the literature suggests, and additional information does not always lessen uncertainty. Results and Implications This study sheds light on the roles of ambiguity and uncertainty in implementation, where ambiguity is related to the credibility of the policy and uncertainty is related to the clarity of the policy. Fundamentally, we find that despite distinctions in the literature that ambiguity lies in political decision making and uncertainty resides in rational decision making, the two concepts effectively pose the same challenges for implementation. Specifically, our findings have three main theoretical and practical implications. First, we find that local governments evaluate the credibility of policies separately from the credibility of the agency that formulate them. With regards to credibility, we proposed that policies were unlikely to be implemented when the credibility of the actors who formulated the policy was low. While we did find support for this theory, we also discovered that policies appeared to be evaluated for implementation more on their impact on the municipality rather than by the credibility of the agency which authored it. Local governments understand the Post Disaster Buyout Program, but buyouts are considered to not to be credible because of their negative impact on the tax base of local municipalities. In contrast, base flood elevation/freeboard guidelines are seen as more credible because local officials have been able to observe the impact of the new standards firsthand. Thus, a community’s overall impression of whether FEMA was credible did not impact their belief in the credibility of FEMA’s guidelines for base flood elevation/building codes. In fact, those who found FEMA to be “not credible” were slightly more likely to find building codes/freeboard/base flood elevation standards credible. Communities which found the Post Disaster Buyout Program credible were more likely to find FEMA credible. However, a community’s view on the credibility of the Post Disaster Buyout Program did not appear to be related to their view of the credibility of the FEMA standards pertaining to building codes/freeboard/base flood elevation. Second, we find that ambiguity is conditional in implementation. The ambiguity around the choice of a policy tool to implement after a disaster is moderated by the experience of a local government and its capacity to implement. This finding adds to our understanding of ambiguity in decision making that previously suggested that ambiguity could not be reduced. Ambiguity is more often present and important than we anticipated in local government decision-making about implementation of hazard mitigation policies. The lack of an agreed upon understanding was a crucial point of failure. Communities which had a definition of mitigation which was not consistent with FEMA’s were far more likely to report being “extremely frustrated” with FEMA. The term mitigation was defined by FEMA in grant instructions and likely covered in grant workshops. When local policy makers failed to understand how FEMA defines mitigation, they became frustrated with FEMA, not the Hazard Mitigation Grant Process, which they 116 International Review of Public Policy, 3:1 still viewed as credible. Another important finding is that communities which had experienced more focusing events were more likely to have an understanding of the term mitigation that was consistent with FEMA’s. Thus, it appears that while ambiguity leads to a great deal of frustration throughout policy implementation, experience is an important mitigating factor. While, broadly speaking, we found experience lessened frustration with FEMA, we also found evidence that experience with a specific policy tool that is being considered for implementation matters. Where policy makers have had the opportunity to observe the efficacy of a policy firsthand (base flood elevation, building codes) they will see it as credible regardless of the credibility of the federal institution (FEMA). Experience also lessened frustration with FEMA, with communities that have experienced more disasters more likely to understand FEMA’s definition of mitigation, to find FEMA more credible, and to be less frustrated with FEMA. The implication is that experience with a policy problem acts as a mediating and facilitating factor in implementation. One important factor to help promote implementation is involvement of state agencies. Over- whelmingly, state institutions and process were viewed as more credible than federal institutions and processes; this reinforces the idea that state governments are important intermediaries between federal and local governments in policy implementation. Third, we find that uncertainty influences policy implementation in a way that is more similar to ambiguity than previously considered. In many instances, uncertainty was not reduced by more information. This suggests that the effect of uncertainty is similar to ambiguity, supporting our “two sides of the same coin” argument about the concepts and their theoretical and empirical roles. Policy and disaster experience act as a moderating effect on implementation conflict and is associated with policies being perceived as credible. In addition, experience lessens both ambiguity and uncertainty. In our analysis we observed frequent misunderstandings of what flood mitigation is and the tools available, resulting in confusion about the types of local projects eligible for federal mitigation programs. Conventionally, we would expect that a lack of understanding of mitigation to be considered uncertainty about technical and scientific information (Jenkins-Smith et al., 2014; Weible et al., 2009) that could be resolved with more information (Feldman, 1989; Wil- son, 1998). However, we found that uncertainty functioned more like ambiguity in that misunderstandings persisted in spite of both FEMA and local officials reporting frequent, high levels of technical assistance. The implication is that the distinction between the political manipulation of ambiguous circumstances and the rational, technocratic approach to gathering more information to reduce uncertainty may be less clear, theoretically and empirically, than previously considered. Finally, we failed to find support for the idea that policies which are part of a package of policy programs are less likely to be implemented. This is inconsistent with other findings in the policy literature, particularly the Multiple Streams Framework (Zahariadis, 2008; Zahariadis & Exadaktylos, 2016). There are three potential explanations: the theory does not withstand empirical testing; our data is insufficient; and the case of Hurricane Harvey is not suitable for testing this piece of the theory. We suspect that packages or policies are indeed problematic and our data hints at this. However, we cannot support this proposition. Furthermore, we are unconvinced that ambiguity is the reason why packages of policies are problematic. We suspect that reluctance to apply federal policy preferences to a local problem might be another explanation. Further study is needed to examine the challenges of untangling the meaning of packages of polices. Taylor / Zarb / Jeschke | Ambiguity, Uncertainty and Implementation 117

In conclusion, there are two broad implication of this research for the study of policy process and policy implementation. First, for theories of the policy process that make assump- tions about ambiguous decision-making circumstances, like the Multiple Streams Framework, or conditions of uncertainty in a policy community, like the Advocacy Coalition Framework, these findings suggest that ambiguity and uncertainty can mediated by experience over time. Furthermore, ambiguity may be lessened by using state agencies, which were viewed by local policy makers as being more credible, to send important messages about policy tools. Some- what confoundingly, in this study, uncertainty was not lessened with more information. This has important implications for theories of the policy process that emphasize the importance of information, like policy learning and evidence-based policy making. Second, for policy implementation, the findings from this study represent a set of empirical findings that are a step forward for unpacking the politics of implementation in a nested system of government. Un- derstanding how local governments choose which policies to implement seems to hinge in part on capacity. However, future research is necessary to assess the influence of the means, willingness and organizational capacity of government on decision making in policy implementation.

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Appendix

Appendix A

Coding of Key Variables Variable Characterization Agency Category Credibility Credible FEMA, DHS, HUD, SBA, Recovery, Mitigation, Army Corps, NOAA, Preparedness, Response, Not Credible TDEM, TDOT, GLO, General Disaster Policy Neutral/No Evidence TASB, SEAGRANT, TEX- AS A&M, Rice, Other Clarity of Clear, Unclear, Federal or State Recovery, Mitigation, Communication No Evidence Preparedness, Response, General Disaster Policy Clarity of Policy Clear, Unclear, Federal or State Recovery, Mitigation, Goals No Evidence Preparedness, Response, General Disaster Policy Frustration Mention that FEMA or TDEM Recovery, Mitigation, conveys the speaker Preparedness, Response, is frustrated General Disaster Policy Instructions/ Mention that FEMA or TDEM Recovery, Mitigation, messages instructions or messages Preparedness, Response, from the sender are clear General Disaster Policy or unclear Ambiguity Mention that conveys FEMA about the speaker has a the definition definition of mitigation of mitigation which is not consistent with FEMA’s definition International Review of Public Policy, Vol. 3, N°1, 2021, 121-136, https://doi.org/10.4000/irpp.1788

Forum Patterns of Democracy Matter in the COVID-19 Crisis A Comparison of French and German Policy Processes

Nils C. Bandelow Institute of Comparative Politics and Public Policy (CoPPP), Technische Universität Braunschweig, Germany Patrick Hassenteufel Université de Versailles-Saint-Quentin-Paris-Saclay / Laboratoire Printemps (UMR 8085), France Johanna Hornung Institute of Comparative Politics and Public Policy (CoPPP), Technische Universität Braunschweig, Germany

Abstract COVID-19 poses a new challenge to governmental decision-making. With a great level of uncertainty regarding the roots, distribution, prevention, and effects of the pandemic, and with scientific insights and recommendations changing on a daily basis, politicians face the difficult task of reacting quickly but justifiably to the developments. Neo-institutional perspectives of policy research can contribute to the understanding of similarities and differences in strategies to deal with the pandemic by focusing on the interrelationship of institutions and the policy process. A comparison of France and Germany highlights the effects of different patterns of democracy. In what way does the national institutional setting, particularly federalism and centralization, contribute to decision-making? How are political decisions instrumentalized in public debates? The findings indicate that the different patterns of democracy in France (unitary majoritarian system) and Germany (federal consensus system) provide distinctive challenges and make it difficult to transfer successful policies from one country to another.

Keywords COVID-19, Patterns of Democracy, Federalism, french politics, german politics, Programmatic Action Framework, health policy

The authors thank Ilana Schröder and Ann Christin Helmik for their great support and the three IRPP refer- ees for their helpful comments on earlier versions of this paper. 122 International Review of Public Policy, 3:1

Introduction France and Germany share a lot of similarities in their starting position for dealing with the COVID-19 crisis. The two founding countries of the European Union both have Bismarckian health systems, financed by contributions of employers and employees and regulated by the state in cooperation with associations (Reibling, Ariaans, & Wendt, 2019). With some 67 and 83 million inhabitants respectively, France and Germany are of a similar size and are both located in continental Europe. As neighboring countries, they had their first official cases of SARS-CoV-2 at the end of January 2020. Both countries used some strategies and policy tools similarly, but they differed substantially in other aspects of their reaction to the pandemic. What explains these similarities and differences in crisis policies? This comparison focuses not only on the impact of past experiences and of the countries’ preparedness for the crisis (Capano, Howlett, Jarvis, Ramesh, & Goyal, 2020), it also looks at the effects of political institutions and the role of actors in the political game of the policy process, as France and Germany represent opposite types of democracy. First case-oriented comparisons of crisis management highlight the relevance of federalism and other elements of power-sharing for COVID-19 policies (Béland, Marchildon, Medrano, & Rocco, 2021; Huberfeld, Gordon, & Jones, 2020; Rocco, Béland, & Waddan, 2020). Accordingly, the following section discusses theoretical expectations regarding federalism, veto players and other institutional and political differences. The third section analyses the preliminary phase of the pandemic policy encompassing the preparation before the first cases were registered. Subsequently the two phases of policy reactions to the two pandemic “waves” are analyzed: the first from Janu- ary 2020 to the end of July 2020, the second from August 2020 until the development of the first vaccines at the turn of the year 2020/21. The fifth section analyses the links between policy processes and the political game, contrasting the high level of public trust in the German government with the high level of blame concentrated on the French executive. The conclusion deals with a systematic comparison of challenges that different democracies face in pandemic policymaking. Political institutions and blame avoidance in different democratic settings Political institutions influence policy strategies and results in several ways. Institutions contribute to the access of relevant actors to the decision-making process, guide the preferences and opportunities of actors and may even influence the interaction orientationof actors (Scharpf, 1997). Various forms of government also result in different opportunities for politicians to claim credit and avoid blame for particular outcomes (Hinterleitner, 2018; Nelson, 2016; Zohlnhöfer, 2007). Similar to retrenchment policies, most decisions that include prevention and diminishing of the negative effects of pandemics affect large numbers of the public (if not everybody) without providing short-term benefits. Prevention policies cost (public) money. Additionally, reactions to the pandemic often restrict individual rights and freedoms. In democratic regimes politicians rely on public support and therefore tend to avoid unpopular decisions (Weaver, 1986). Comparing France and Germany, with their opposing patterns of democracy (Lijphart, 2012), leads to contrasting expectations with regard to blame avoidance. The French unitary majoritarian system puts the president of the state (and leader of the majority party) at the center of each decision, at least in times where there is no political cohabitation (success by the opposition to the President in parliamentary elections)1. Therefore, it is very difficult for the French

1 — Cohabitation is unlikely to happen since the aligning of the presidential and the legislative terms (the last cohabitation occurred between 1997 and 2002 with a socialist majority in the National Assembly under a right-wing president). Bandelow / Hassenteufel / Hornung | Patterns of Democracy Matter in the COVID-19 Crisis 123

President to avoid blame for unpopular and unsuccessful decisions. Additionally, the French protest culture comes with a tradition of public rejection and (partly violent) protest against unpopular policies. Germany’s federal-consensus democracy, on the other hand, distributes power and responsibility between different levels of government, several governmental parties and other veto players. These structures produce hurdles to the implementation of policy change (Tsebelis, 2002). At the same time, they provide ways to shift the responsibility for unpopular decisions to other involved actors (Bandelow & Hassenteufel, 2006). Cooperative political players, such as coalition parties, also offer multiple perspectives of policy problems and can thereby contribute to the expansion of the alternatives discussed in the policy process (Bandelow, 2008). The relation between political institutions and COVID-19 policies is far from being direct and simple, though. The list of countries that were hit particularly hard by the virus includes federal countries, such as the US, Belgium and Brazil, as well as more centralized countries such as the UK, Sweden and Chile (Colfer, 2020; Huberfeld et al., 2020; Petridou, 2020; Van Over- beke, 2020). Neither the level of democratization nor the general pattern of the distribution of power directly explains variances in the outcomes. These outcomes also varied widely during different phases of the pandemic. Some states were very successful during the first months but were hit hard in winter 2020/21 and vice versa. Therefore, this analysis will focus on the policy process without aiming at evaluating the preliminary outcomes. Another usual political suspect in the varieties of crisis management is trust in government before the pandemic (Han et al., 2020). However, both France and Germany faced a government crisis before spring 2020. In France, systemic pension reform and other policy decisions were strongly opposed by the yellow vests, a broad contestation movement born in social media during autumn 2018, and by trade unions. In Germany, all parties in the coalition government that was formed in 2018 (CDU, CSU, SPD) have since lost their party leaders due to election failures, internal conflict and decreasing public support. Therefore, it is necessary to explore the different phases of the policy process to identify the conditions for effective COVID-19 policies. First differences may be found by comparing the level of preparedness with respect to the capability of the health system, specific protection equipment, recent pandemic planning, the economic situation, and a legal framework with clear and suitable responsibilities. Preparedness for the Pandemic The first reactions towards the pandemic were influenced by several factors. While this paper focuses on patterns of democracies, other conditions have to be taken into account to separate the role of political institutions from other relevant factors explaining pandemic handling. Some of these can be summarized as preparedness for the pandemic. Preparedness encompasses several aspects, ranging from the health system to economic and societal conditions. Particularly during the first months, the failure of health systems in parts of Italy and the US shed light on the lack of supply of relevant medical and protective facilities in some countries. Comparing the different aspects of preparedness produces a mixed picture for France and Ger- many. Germany has a much higher supply of hospital beds, especially intensive-care beds, and provisions for extracorporeal membrane oxygenation (ECMO). France provided only 11 intensive- care beds per 100,000 inhabitants compared with 35 in Germany (Hassenteufel, 2020). The German health system also has a dense provision of specialist physicians in private practice and provides a network of local public health departments. Nonetheless, France also performs 124 International Review of Public Policy, 3:1 quite well in terms of health-system comparisons and gets similar or even better evaluations than does Germany (see, for example, GHS Index, 2019, p. 20). Economic conditions are also quite similar, but indicate that Germany was slightly better prepared for the pandemic than was France (Camous, 2020). Regarding GDP per capita, both Ger- many (41,340 Euro) and France (36,060 Euro) are above the European Union and the Euro zone average in 2019 (Eurostat, 2020a). The seasonally adjusted unemployment rate in Ger- many amounted to 3.3 percent in January 2020, before measures were taken to tackle the pandemic. In the meantime, France recorded an unemployment rate of 8.0 percent in January 2020. Considering the total number, France had a seasonally adjusted unemployment rate two- and-a-half times as high as Germany in the time period before the first registered infections (Eurostat, 2020c, 2020d). Taking into account the budgetary policy immediately before the crisis, in regard to the Maastricht criteria, the general government gross debt of European countries to GDP should not exceed 60 percent. Since April 2019, Germany had a national debt of 61.1 percent, which fell to 59.8 percent in the last quarter. The first quarter of 2020, and thus the first quarter of the pandemic, shows an increase to 61.3 percent. In contrast, France recorded a general government gross debt of between 98 and 100 percent in 2019, putting it in fifth to sixth place among the most indebted countries in Europe. Between 2019 and 2020, French government debt increased by 3.1 percentage points to 101.2 percent (Eurostat, 2020b). As stipulated by the European Central Bank, countries with high levels of public debt are more vulnerable to the economic consequences of a crisis (Burriel, Checherita-Westphal, Jacquinot, Schön, & Stähler, 2020). Societal structures indicate that, regarding COVID-19, Germany should be slightly more se- verely affected than France as a result of population density, age structure and the number of people living with two or more chronic diseases. Considering the risk factors of smoking and obesity, which seem to increase the individual risk for severe infection with COVID-19, France was also better prepared than Germany (OECD, 2019, pp. 27, 88, 96). The influence resulting from these numbers is controversial, though. There are other conditions – for example, greet- ing rituals – which differ between and within the countries and which are difficult to measure. Nonetheless, they may be relevant for the spread of the disease. Regarding the specific preparedness for a pandemic, both countries showed weaknesses. Al- though there were pandemic plans (RKI, 2017; SGDSN, 2011), the two countries failed to provide sufficient protection equipment, especially masks for the health system and for the general public. This was partly the result of political responsibilities. In Germany the basic law provides concurrent legislation for the federal state and the Länder, whichin practice means that there is federal legislation that is to be implemented mostly by Länder bureaucracies. With regard to the provision of protection equipment, it was unclear to what extent federal agencies, Länder, hospitals or medical associations were responsible for ensuring sufficient stocks. In France the local and regional authorities lack direct responsibilities and rely on the regional health agencies (ARS) under the authority of the national health ministry. So the central state had full authority (at least at the beginning of the pandemic). Territorial actors criticized the outcome of the central policies given that regional aspects had not been taken into account sufficiently (Hassenteufel, 2020). Hence, the French case provides additional evidence of the poor preparedness of central bureaucracies for the crisis (Bergeron, Borraz, Castel, & Dedieu, 2020; Gay & Steffen, 2020), a situation also visible in other countries such as Italy (Capano, 2020). In summary, the countries showed rather similar weaknesses in their preparation for the crisis. The only obvious difference was the much higher number of hospital beds in Germany. Short- Bandelow / Hassenteufel / Hornung | Patterns of Democracy Matter in the COVID-19 Crisis 125 comings in protection equipment concerned both countries alike. There are also differences regarding administrative preparedness that mirror the respective patterns of democracy. In France, centralism produced problems through not taking sufficient account of regional differences regarding the provision of all kinds of supplies relevant for the pandemic policy. How- ever, the particular lack of protection masks was a contingent result of former developments only indirectly connected to the French type of democracy. France used to have a stock of 714 million protection masks three years before the crisis started. However, apart from a small remainder of only 117 million masks, they were all destroyed because they were either outdated or not compliant (Hassenteufel, 2020). This was related to the French experience with the outbreak of swine flu in 2009/10, during which France took a pro-active stance (Versluis, Asselt, & Kim, 2019, p. 92) which was later considered to be an overreaction (see, for this concept, Maor, 2020). In Germany, federalism enabled internal shifts in responsibilities. On the one hand, there were many access points for organizing pandemic prevention, including the federal state, the Länder and the municipalities, different parties bound together by coalition governments, some 100 sickness funds, private insurance companies, hospitals, and resident doctors. However, multiple responsibilities can lead to rationality traps especially regarding the provision of resources for prevention. They may also result in a confusion of responsibilities at the beginning of a crisis. For example, there is an ongoing debate about the financing of tests and protection provision, given that the social health insurance (SHI) covers only some 90 per cent of the population and therefore does not provide for the rest of the population (mainly civil servants and high earners, covered by state aid and private insurance). First Phase: January until the End of July 2020 The European Union provides a regularly updated overview of the development of the pandemic and of each country’s measures (ecdc, 2021). The first three European cases of COVID-19 were registered on the 24th of January in France, followed by Germany three days later. Both countries faced a first wave of infections which decreased in the summer of 2020. How did centralist or federalist decision-making structures affect the elaboration and implementation of policies and can they be regarded as obstacles to tackling an acute problem? One-and-a-half months after the first infections in France and Germany, the WHO gave the COVID-19 outbreak the status of a pandemic. By this time, both countries had established scientific advisory committees to consult with their respective governments. In France, two expert councils were established by the President. More importantly, the President reactivated the (then) “Defence and National Security Council” (CDSN) whose original role had been to provide decisions at times of military crisis. Formally, the President is the supreme commander of the army and responsible for foreign policy, but has no direct authority for internal affairs including health policy. By using a military institution, Emmanuel Macron gained the undis- puted leadership regarding pandemic policies. He presides over the council and has full authority over its membership and calling its meetings. Effectively, all major decisions have been made by the council which has met regularly since March 2020 (often once a week), bypassing the weekly cabinet meetings (Rousselier, 2021, Lemarié & Faye, 2020). The main decisions have been publicly announced by the President before becoming governmental regulations. Parliament was also bypassed by the adoption of an emergency health law at the end of March 2020, giving broad powers to the executive, including the possibility of adopting many measures by governmental decree. Regional and other local authorities were mostly excluded from 126 International Review of Public Policy, 3:1 this centralized and presidentialized decision-making process, although there was some leverage for territorial actors when lockdown measures were first lifted in June 2020 (Hassenteufel, 2020, pp. 174-175). In Germany, on the other hand, most competencies for pandemic policies lie with the subnational level. On the federal level, legislation required decisions by the parliament (Bundestag) and by the Federal Council (Bundesrat). To speed up the decision-making process and stand- ardize measures, the legislator empowered the health ministry to take protective measures at the end of March, 2020. This (first) law on protection of the population in the event of an epidemic of national concern was very controversial and paved the way for the ensuing combination of strict measures decided at the federal level. The law was even amended in May, 2020 and combined with broad financial compensation to cover the effects of the "soft lockdown" for the economy. The German health ministry recommended the cancellation of events with more than 1,000 participants, but both countries took binding measures only after pandemic status was declared. In March, 2020, most German Länder closed their education and childcare facilities. Germany prohibited major events until the end of August and restricted public offerings such as church services and non-essential retail. In mid-March, 2020, Germany declared contact restrictions which differed depending on the Länder. Since March, 2020, similar measures were taken in France. Slightly earlier than in Germany, France closed all schools and universities on March 12th, 2020. France set up a lockdown, stating that one may leave the house only in exceptional cases essential for life, depending on the completion of an authorization form. This measure, which was stricter than the restrictions in Germany, remained in place until mid-May 2020. Both countries had a similar and inconsistent strategy towards masks. At the beginning of the pandemic, the wearing of masks was not binding and was declared as not helpful in reducing infections. This came as a surprise as it was quite established knowledge, and evendeclared in pandemic plans, that masks were useful. Additionally, the experience of Asian countries, such as Japan and South Korea, provided direct evidence for the epidemiological benefit of the use of masks. The strategies changed when masks were available in higher numbers. In Germany, the Robert-Koch-Institut (RKI, the responsible higher federal authority of the health ministry) gave the first recommendation regarding the use of masks in public areas on April 2nd, 2020. Almost three weeks later, the first Länder decided to make the wearing of masks obligatory in some public areas. They followed the example of the city of Jena which had already made masks obligatory on April 6th, 2020. Jena provided a field test with the impressive result of zero new infections in the first days after implementing the new measure. Under the hard lockdown in France, the wearing of masks was introduced on a voluntary basis until the easing of the confinement on May 11th, 2020 and became mandatory from July 20th, 2020 in some regions. Germany established a high number of tests very early. In mid-April 2020, 17 selected people per 1000 inhabitants were tested in Germany. This first testing strategy only included people who had symptoms and who had contact with infected people or who had been in risk areas. Later testing strategies included more groups such as professional athletes and travel return- ees. France started with a much lower number of 5.1 tests per 1000 inhabitants and only increased the number of tests significantly in August (Hassenteufel, 2020). Even more important than the pure number of tests was the testing and the treatment of infected people during the first phase. In Germany, only 20 percent of infected people were Bandelow / Hassenteufel / Hornung | Patterns of Democracy Matter in the COVID-19 Crisis 127 treated in hospital, while in France 80 percent of tests and 70 percent of treatments were provided by the inpatient sector (Osterloh, 2020). This involved a particular risk of hospital- acquired (nosocomial) infections in France. Even though there is still a lack of reliable data (some numbers for Germany are provided by Schrappe et al., 2020), first reports provide evidence that this may be an important factor in explaining the high number of deaths in France (Vanhems, 2020). Summarizing the first reactions, both countries established decision-making structures to tackle the new situation. Even though there were pandemic plans, the actors, constellations, and strategies changed multiple times as there were neither rules nor scientific knowledge to rely on. However, the federalism in Germany led to some roles being played by subnational governments, which was not the case in France. The German testing strategy was coordinated by the federal agency, RKI, while the decisions on containment measures were taken by the Länder and mostly coordinated by regular virtual conferences including representatives of both the Länder and the federal state. In France, all decisions were made by the central government and hardly took into account the position of local authorities. Second Phase: August 2020 to the Turn of the Year 2020/21 After the relaxation of the situation during the summer of 2020, both countries faced a second increase in infection rates, hospitalizations and deaths of infected people in autumn 2020. This second phase can be seen as a separate case of pandemic reactions. The countries had to react to the results of the first phase: in Germany the outcome was seen as a relative success and the government and scientists enjoyed a high level of trust, while the French President faced strong criticism. The second wave reached its peak in numbers of daily deaths (seven-day moving average) in France in November, 2020, while in Germany the numbers increased until the end of 2020 (Worldometer, 2021). As France faced comparatively high infection rates in late summer 2020, the national government decided on several measures to be implemented from August, 2020. They were all taken by the central executive and prepared by the “Defence Council”. The restrictions were extended to become a curfew related to the regional number of infections. Then a second national lockdown, less constraining than the first one, was decided for the period from the beginning of November 2020 to mid-December 2020 (see timeline). With the first approval of vaccines, the distribution was similarly decided and organized by the French government, on the basis of the recommendations of the National Health Agency (HAS), without including any local authorities. As in Germany, both the experiences of the first phase and the low numbers in early autumn allowed for a relatively relaxed approach; it took until the end of October, 2020 for restrictions to be renewed by federal and Länder governments, coming into force until the end of November, 2020. The most controversial discussion was not about the measures but about the next step of strengthening the federal health ministry by the third law on protection of the population in the event of an epidemic of national concern, coming into force on November 19th, 2020. This “third population protection act”, as it was called, further expanded the authority of the health ministry to act without prior consultation of the parliament. This new power wasused to decide stricter measures on December 13th, 2020. As in France, the federal government (in Germany the Health Minister) issued a regulation to prioritize different risk groups (based on several criteria such as age, housing, profession, and pre-existing diseases). However, as the first group included some eight million people, the Länder were to choose separate subgroups 128 International Review of Public Policy, 3:1 to be vaccinated first. This resulted in some Länder starting only with people in retirement and nursery homes, while other Länder also prioritized elderly people and specific risk groups. The heads of the Länder were also included in all measures decided by informal meetingsbetween the 16 Länder governments, the federal government and some experts in winter 2020/21. The second phase of the pandemic therefore mirrors the vertical structure of both states: although in France the unitary state centralized decision-making and policy implementation, in Germany the regional level still played an important role. This may come as a surprise as the countries established ad hoc institutions to manage the crises and thereby bypassed established political institutions, notably the parliaments. Figure 1: Timeline of COVID-19 related measures

Source: The Authors Bandelow / Hassenteufel / Hornung | Patterns of Democracy Matter in the COVID-19 Crisis 129

COVID-19 and the Political Game COVID-19 started as a challenge for governmental problem-solving. The first reactions to the new pandemic were made by the respective governments in both countries, relying on expert advice. At least within the very first weeks, there was no relevant partisan conflict or person- alization of the new issues. However, as the shortcomings in pandemic preparedness became visible and measures included restrictions and demanded sacrifices that affected population groups differently, pandemic policies became more political. COVID-19 policy was established as a new policy subsystem that was open to different levels of government, political parties, individual politicians, scientists, media and social movements. The actors involved, their strategies, and the policy process follow the conditions of the respective political system. In Germany, despite the governmental crisis at the beginning of the pandemic, the cooperative federalism enabled a political game with quite a high number of players, which nonetheless produced continuously rising support for governmental policies sustained by the so far comparatively good outcome. Very early on, the government included leading scientists in the communication of its policies. Following statements by the Chancellor, Angela Merkel, and the federal Minister of Health, Jens Spahn, the cabinet pursued a strategy of communicative restraint. The RKI took the responsibility for communicating daily the progress of the numbers and the scientific policy suggestions. This was supported by leading virologists. The media dis- seminated the pictures from Bergamo, Italy, contributing to the early and broadly accepted perception of the pandemic as a major crisis. The political strategy of “flattening the curve” to -se cure medical care, especially hospital beds, was not only accepted but distributed by elites from multiple groups in society, including politics, science, and the media. The virologist, Christian Drosten, became a public hero at this time after his team at the Charité in Berlin developed one of the first PCR tests to detect acute infections. Drosten also delivered a regular podcast to explain his interpretation of all developments in state-of-the-art COVID-19 research to a broader public. Despite the broad support for the governmental policies, there were a couple of public conflicts between individual politicians and scientists which usually combined political, scientific and media logic. The most eye-catching political conflict concerned the succession to Angela Mer- kel. Her party, the Christian Democratic CDU, was about to elect a new party leader. There were three officially declared candidates, including the Prime Minister of Germany’s largest Land, North Rhine-Westfalia (NRW), Armin Laschet (who won the election in January 2021). For his campaign, Laschet declared cooperation with his fellow party member, Jens Spahn, the acting federal Minister of Health. The party leadership of the CDU does not automatically lead to a candidature for the post of federal chancellor, as the CDU has to agree with its sister party, the CSU, whose party leader, Markus Söder, is Prime Minister of Germany’s second largest Land, Bavaria. As NRW and Bavaria belonged to the most affected Länder of the pandemic so far, Söder and Laschet could use the pandemic not only to compete for best policies but also to present themselves as suitable candidates for the federal chancellorship. Both politicians come from the same political camp, but they grew, step by step, into competing roles within the pandemic policies. Laschet cooperated with the virologist, Hendrik Streeck, of the University of Bonn, in NRW, who was responsible for the famous and controversial “Heinsberg study” which claimed that there was a high percentage of asymptomatic infections (Breznau, 2020). Both Laschet and Streeck were portrayed as proponents of rather liberal measures. Söder, on the other hand, took the chance to advocate strong measures for his Land. The first political result of the conflict was broad support for Söder from the media 130 International Review of Public Policy, 3:1 and from the public. However, mistakes in the transmission of test results in Bavaria in August 2020 and the still low figures in Germany in late summer endangered the initial popularity of Söder (Serrao, 2020). Other actors took the chance to establish themselves as advocates of radical views. In particular, the former health spokesman of the parliamentary party of the SPD, Karl Lauterbach, a medical professor himself, took a position as advocate of restrictive precautions. This helped him back into the public eye after being defeated as a candidate for the leadership of his own party in 2019 and losing any formal position in the health-policy subsystem before the crisis. Along with other politicians, virologists and journalists, Lauterbach engaged in several specific personal struggles that often included personal attacks on opponents. Despite the emotional and personal public debate, there was always broad support for the general governmental strategy that included most elites and the voters of all large parties except the populist right-wing Alternative für Deutschland (AfD). The AfD is the largest opposition party in the recently elected German parliament but has virtually no support from any elites in media and science. Politicians from the AfD, together with some public figures from culture, sports, and above all social media, raised sharp criticism of the governmental strategy, arguing that the virus was not particularly dangerous. The protest movement included far-right actors and conspiracy theorists, but also some people and families that were not convinced by the necessity for strict measures. In contrast to the former conflict on immigration, the AfD has not yet gained any additional public support by promoting the anti-governmental protests (Naumann, 2020). Even though the government still enjoys a high level of trust and support in Germany, as of winter 2020, there have been some changes. First, the extreme trust in science that arose at the beginning of the pandemic gradually fell in 2020 (Wissenschaft im Dialog, 2020). As the government always publicly emphasized that it took all measures based on “the” scientific evidence (sometimes referring to Angela Merkel’s profession of physicist), this could also be interpreted as a loss of trust in government. More importantly, Germany will have 10 elections in 2021, including a general federal election. This has contributed to changing conditions forthe political game: Germany is governed by a coalition of Christian Democrats and Social Demo- crats that traditionally see each other as their main competitor. Additionally, the Green party is needed for most decisions as it participates in 11 out of 16 Länder governments (as of the end of 2020). Therefore, the proximity of election campaigns is a challenge for pandemic policies: the parties have to avoid blame for mistakes and gain credit for successes, which makes it difficult to find quick and consensual solutions. This became visible when Social Democrats made the Christian Democrats responsible for the lack of vaccines in January, 2021. In France, the pandemic policies also followed the patterns of the political system. The French President and the government, using constitutional tools (decision-making in the Defence Council, delegation of the legislative power to the executive on the basis of an emergency health law), were able to elaborate their policies without facing veto players from other parties or governmental institutions. However, this concentration of authority comes with the price of blame for any failures. France belonged to the group of European countries with the worst results during the pandemic’s first wave and the government and the President were made responsible for this outcome by the public and by the political opposition on both right and left. The mix of pandemic policies and political conflict became obvious with the municipal elections. The decision to maintain the first round on March 15th 2020, just after the closure of schools, universities, restaurants and bars, has been heavily criticized. The governmental party Bandelow / Hassenteufel / Hornung | Patterns of Democracy Matter in the COVID-19 Crisis 131 was defeated in the main cites and the polls showed very low support for the President. At the beginning of May 2020, 62% of French people were dissatisfied with governmental policies, compared with 26% in Germany (Hassenteufel, 2020). Even the Prime Minister, Édouard Philippe, received better results than Macron and was among the very few members of the governmental party to be successful in the second round of the municipal elections, which was postponed until the end of June 2020. Not surprisingly, Macron shifted the blame for the failure of his policies to Philippe, even if he was re-elected as mayor of Le Havre, and replaced Philippe as Prime Minister at the beginning of July 2020. His successor, Jean Castex, doesn't represent another party wing as both he and Philippe come from the conservative Républicains. However, Castex, a former senior civil servant belonging to the programmatic “custodians” of the healthcare state since the mid-1980s (Genieys, 2010; Genieys & Hassenteufel, 2015; Hassenteufel & Genieys, 2020), was responsible for the lifting of the lockdown plan that was implemented after May 11, 2020. The concentration of political blame on the executive also led to the setting up of two parliamentary inquiry commissions (in the National Assembly and the Senate) looking into the management of the pandemic and to the filing of numerous complaints against members of the government: 150 complaints had been lodged with the Court of Justice of the Republic by mid- December, 2020. It was also at this time that the public prosecutor announced the opening of a vast preliminary investigation into the management of the health crisis, including looking at charges such as “manslaughter” and “endangering the lives of others”. The conclusions of the two parliamentary commissions, made public in December, 2020, were very critical and pinpointed several policy failures, particularly the lack of preparedness for the pandemic crises, the lack of coordination in crisis management and the delayed reactions, as explanations of the poor outcomes of the first wave. In addition, the slower start of vaccination in France at the end of December, 2020, compared with other European countries, especially Germany, triggered new criticism from both right- and left-wing oppositions, as well as from local authorities and well-known figures from the medical profession. The yearly survey on confidence in politics, published in February 2021, showed that in France 37% of the people asked were satisfied with the governmental handling of the crisis (39% in April 2020), against 56% in Germany (74% in April 2020). This high level of mistrust in France helps to explain the emergence of new protest figures, in particular Professor Didier Raoult, a well-known proponent of the use of hydroxichloroquine to treat COVID-19 patients, who has been supported by parts of the political class, particularly among the hard-right Rassemblement National (RN) and the hard-left La France Insoumise (LFI) parties, as well as the centre-right LR party. Symbolizing the contestation of the medical and political establishment, Raoult received a lot of support across social networks and among the yellow vests. However, compared with the public protests against COVID-19 measures in Germany, the French protests remained relatively small (Soullier, 2020). This is uncommon for France, but can easily be explained by the much higher number of deaths, which legitimized the restrictions. In summary, both countries experienced a politicization of pandemic policies. In Germany, the leading parties, especially the CDU/CSU, managed to occupy all positions providing relevant public support. Germany also successfully included virologists in the communication strategy. Even though there was a heated political conflict, the core of the policies remained largely un- touched. The French majoritarian system, on the other hand, offers very little room for blame- avoidance strategies in the context of bad policy outcomes. 132 International Review of Public Policy, 3:1

Conclusion: Different Challenges to the Politics of Pandemic Policies COVID-19 policy processes differ from everyday policy-making. Governments are confronted with a lack of knowledge about both the type of problem and the effect of their strategies. Nobody could name a working solution at the beginning of the pandemic. Governments were forced to establish new institutions and strategies. At the same time, they were bound by their established rules, agencies, actors, and history. This paper has confronted the neo-institution- alist view of comparative policy research with the politics of the policies to tackle the pandemic. The comparison of France and Germany provides a complex answer to the question of what explains the similarities and differences of pandemic policies in different types of democracies. Political institutions provide different challenges for each country. The German challenge -re sults from its federal consensus structures, as the German polity brings an obvious and general challenge and a more peculiar challenge often overseen by generalizations of federal countries. The general challenge concerns balancing centralized solutions with clear, unambiguous regulations, on the one hand, and decentralized solutions that take regional situations and preferences into account, on the other. Germany was forced to rebalance its federal state during the pandemic, giving the central state, and especially the federal health ministry, additional competencies. However, while the strengthening of the federal executive may be seen as a problem for democracy as the parliament lost its control options, the Länder level remained important. The heads of Länder governments were included in the informal decision-making. Addition- ally, the Länder always retained the option of implementing central regulations on a regional basis, using their own leeway. The specific challenge concerns the enduring conflict between consensus requirements among the various veto players and party competition in parliamentarianism. During the first phase, party competition was primarily the subject of individual conflicts within the parties. How- ever, this changed in the second phase with increasing competition between parties (especially between the coalition parties: SPD and CDU/CSU) due to the proximity of elections. France, on the other hand, has no problem with finding majorities for quick solutions as all the power lies with the President and his supporters. However, this is also a problem for blame avoidance: the President had to be very careful with his decisions because there was a broad protest movement against the government and the “elites” as a whole. The yellow vests in particular, but also left-wing and right-wing politicians, use every mistake in the pandemic policy to delegitimize the President. A second special feature is based on the centralization of the public debate that forced the President to establish new ad hoc bodies so as to include expertise and legitimacy in his decisions. However, contrary to the German experience, local authorities have not been included in the decision-making process and have only very limited options for implementations that adapt to local circumstances. Thus, local authorities, most of them headed by opposition parties, contribute to the concentration of blame on the President and the government. The comparison clarifies the fact that political institutions are an indispensable element in understanding different pandemic policies. Patterns of democracy do not explain the level of success of these policies but build the frame that determines which actors and strategies are possible and which particular challenges will be faced. Future research on the long-term performances of COVID-19 policies will have to take into account other explanations. For this task, theories of the policy process provide several variables ranging from policy networks, social identities and programmatic groups (Bandelow, Hornung, & Smyrl, 2021; Hornung, Bandelow, Bandelow / Hassenteufel / Hornung | Patterns of Democracy Matter in the COVID-19 Crisis 133

& Vogeler, 2019) to policy instruments (Dunlop, Ongaro, & Baker, 2020) and scientific information and learning (Weible et al., 2020). However, the first results of this two-country analysis suggest that further research should concentrate more on comparisons within similar types of democracies as the causalities proved to be much more complex than could be covered by this first research design.

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Lemarié, A., & Faye, O. (2020). COVID-19 : le Conseil de défense, où se décide la gestion de crise, est prisé par Emmanuel Macron et décrié par l’opposition. Le Monde. Retrieved from: https://www.lemonde.fr/politique/article/2020/11/11/le-conseil-de-defense-outil-de-gestion-de- crise-prise-par-emmanuel-macron_6059306_823448.html (last retrieved from 12 January 2021). Lijphart, A. (2012). Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries (2. ed. ed.). New Haven, Conn.: Yale Univ. Press. Maor, M. (2020). Policy overreaction styles during manufactured crises. Policy & Politics, 48(4), 523-539. https://doi.org/10.1332/030557320X15894563823146 Naumann, E. B., Annelies G.; Wenz, Alexander; Rettig, Tobias; Reifenscheid, Maximiliane; Möhring, Katja; Lehrer, Roni; Krieger, Ulrich; Juhl, Sebastian; Friedel, Sabine; Fikel, Marina; Cornesse, Carina. (2020). COVID-19 Policies in Germany and their Social, Political Psychological Consequences. European Policy Analysis, 6(2), 191-202. https://doi.org/10.1002/epa2.1091 Nelson, M. (2016). Credit-Claiming or Blame Avoidance? Comparing the Relationship between Welfare State Beliefs and the Framing of Social Policy Retrenchment in France and Germany. Journal of Comparative Policy Analysis: Research and Practice, 18(2), 138-156. https://doi.org/10.1080/13876988.2015.1005928 OECD. (2019). Health at a Glance 2019. OECD Indicators. Paris: OECD Publishing. Osterloh, F. (2020). Warum Deutschland die Pandemie besser übersteht als viele Nachbarn. Ärzteblatt. Retrieved from: https://www.aerzteblatt.de/nachrichten/113256/Warum-Deutschland-die-Pandemie-besser-uebersteht- als-viele-Nachbarn?rt=d18b697ac2160e14559115c787a92653 (zuletzt eingesehen am 16. Juni 2020). Petridou, E. (2020). Politics and Administration in Times of Crisis: Explaining the Swedish Response to the COVID-19 Crisis. European Policy Analysis, 6(2), 147-158. https://doi.org/10.1002/epa2.1095 Reibling, N., Ariaans, M., & Wendt, C. (2019). Worlds of Healthcare: A Healthcare System Typology of OECD Countries. Health policy, 123(7), 611-620. doi:10.1016/j.healthpol.2019.05.001 RKI, Robert Koch Institut (2017). Strukturen und Massnahmen. Nationaler Pandemieplan - Teil I. Retrieved from: https://www.gmkonline.de/documents/pandemieplan_teil-i_1510042222_1585228735.pdf (zuletzt eingesehen am 16. Juni 2020). Rocco, P., Béland, D., & Waddan, A. (2020). Stuck in Neutral? Federalism, Policy Instruments, and Counter-cyclical Responses to COVID-19 in the United States. Policy and Society, 39(3) 458-477. https://doi.org/10.1080/14494035.2020.1783793 Rousselier, N., (2021). Le Conseil de Défense : dérive autoritaire ou régime de nécesité?. AOC. Re- trieved from https://aoc.media/analyse/2021/01/14/le-conseil-de-defense-derive-autoritaire-ou- regime-de-necessite/ Scharpf, F. W. (1997). Games Real Actors Play: Actor-Centered Institutionalism in Policy Research. Boul- der, Colo.: Westview Press. Schrappe, M., François-Kettner, H., Gruhl, M., Hart, D., Knieps, F., Manow, P., . . . Glaeske, G. (2020). Thesenpapier 4.0. Die Pandemie durch SARS-CoV-2/Covid-19 - der Übergang zur chronischen Phase. Retrieved from Köln, Berlin, Bremen, Hamburg. Retrieved from: http://www.matthias.schrappe.com/index_htm_files/thesenpapier_4_endfass_200830.pdf 136 International Review of Public Policy, 3:1

Serrao, M. F. (2020, 2020-09-04). Kaum Patienten und Tausende freie Krankenhausbetten: Warum Armin Laschet recht behalten hat und Markus Söder irrt.Neue Zürcher Zeitung. Retrieved from: https://www.nzz.ch/meinung/der-andere-blick/welcher-corona-notstand-laschet-hatte-recht- soeder-nicht-ld.1574981 SGDSN. (2011). Secretariat-General for National Defence and Security: National “Influenza Pandemic” Prevention and Response Plan. Retrieved from Paris: https://solidarites-sante.gouv.fr/IMG/pdf/PlanPandemieGrippale-Version_Anglais.pdf Soullier, L. (2020, 2020-08-29). A Paris, un rassemblement « antimasque » aux multiples revendications. Le Monde. Retrieved from: https://www.lemonde.fr/politique/article/2020/08/29/a-paris-un-rassemblement-anti-masques- aux-revendications-multiples_6050332_823448.html Tsebelis, G. (2002). Veto Players: How Political Institutions Work. Princeton: Princeton University Press. Van Overbeke, T. S., Diederik. (2020). High Politics in the Low Countries: COVID-19 and the Political Consequences of Indequate Policy Coordination in Belgium and the Netherlands. European Policy Analysis, 6(2), 305-317. https://doi.org/10.1002/epa2.1101 Vanhems, P. S.-E., Mitra; Chuzeville, Michel; Marion, Elodie. (2020). Rapid nosocomial spread of SARS-CoV-2 in a French geriatric unit. Infection Control & Hospital Epidemiology, 41(7), 866-867. https://doi.org/10.1017/ice.2020.99 Versluis, E., Asselt, M., & Kim, J. (2019). The Multilevel Regulation of Complex Policy Prob- lems: Uncertainty and the Swine Flu Pandemic. European Policy Analysis, 5(1), 80-98. https://doi.org/10.1002/epa2.1064 Weaver, R. K. (1986). The Politics of Blame Avoidance. Journal of Public Policy, 6(4), 371-398. Retrieved from: http://www.jstor.org/stable/4007281 Weible, C. M., Nohrstedt, D., Cairney, P., Carter, D. P., Crow, D. A., Durnová, A. P., Haikkila, T., Ingold, K., Mc>Connell, A. & Stone, D. (2020). COVID-19 and the Policy Sciences: Initial Reactions and Perspectives. Policy Sciences 53(2), 225-241. https://doi.org/10.1007/s11077-020-09381-4 Wissenschaft im Dialog. (2020). Wissenschaftsbaromenter. Retrieved from Berlin: https://www.wissenschaft-im-dialog.de/fileadmin/user_upload/Projekte/Wissenschaftsbarom- eter/Dokumente_20/WiD-Wissenschaftsbarometer_2020_Broschuere_final.pdf Worldometer. (2021). COVID-19 Coronavirus Pandemic. Retrieved from: https://www.worldometers.info/coronavirus/ Zohlnhöfer, R. (2007). The Politics of Budget Consolidation in Britain and Germany: The Impact of Blame Avoidance Opportunities. West European Politics, 30(5), 1120–1138. https://doi.org/10.1080/01402380701617498 International Review of Public Policy, Vol. 3, N°1, 2021, 137-139, https://doi.org/10.4000/irpp.1741

Book Review Andrew MASSEY (Ed.), A Research Agenda for Public Administration

Petra Svensson Universitetslektor i statsvetenskap/Senior lecturer in Political Science Akademin för lärande, humaniora och samhälle/School of Education, Humanities and Social Sciences Högskolan i Halmstad/Halmstad University, Sweden

A Research Agenda for Public Administration Andrew Massey

Massey, Andrew (Ed.), Cheltenham (UK) & Northampton (USA):Edward Elgar Publishing, 2019, 241 p., ISBN 9781788117241. Hardback: £100.00, $150; Pa- perback: £24.95; £31.96; eBook: £19.96, $31.96 2019 138 International Review of Public Policy, 3:1

The academic field of public administration is characterized by the long-standing debate on what constitutes the field in terms of academic discipline. Which theories, methods, designs and topics define the field, and how are these distinct from other research fields? The question can be daunting, especially for new scholars and students, and therefore a compiled research agenda, such as this book, is welcome indeed. The anthology is a part of the series Elgar Re- search Agendas, targeting research agendas in various fields. In the introductory chapter, An- drew Massey argues that the departure points of A Research Agenda for Public Administration are the diverse character of public administration as research field, and its unifying objects of study: the state, public sector and public realm, rather than its aims, methods and theories. This statement is a necessary one for a book on such a diverse research agenda. The chapters may be divided into two groups. The former covers the more epistemological characteristics of public administration as a field, such as reflections on the development of the public administration research field (Massey and Drechsler), the interpretative turn in public administration (Rhodes), and the relationship between the academic field and practitioners (Pollitt, Walker, Dunlop and Steen, Brandsen & Verschuere). The latter covers specific topicsin the field, such as public administration in East Asia (Kim and Lan), digital governance (Evans, Dunleavy, McGregor & Halupka), governance in small states (Randmaa-Liiv & Sarapuu), comparative public administration (Kuhlmann), regulation and corruption (Dunlop & Radaelli), and public service motivation (Brewer). Each chapter covers the development of the topic at hand and ends with some tensions constituting potential future research paths. The chapters offer consolidated, useful overviews. It is also nice to see a compiled work like this, where the authors represent academic institutions across the globe. Readers more interested in the frontier of research will appreciate the second group of chapters because of their smooth introductions to a range of topics combined with clarification of the most pressing and relevant research questions. Several chapters stress the necessity to consider the impact of geography, culture and local context. The first group of chapters holds distinct value, too, since the development of the public administration field, which takes place in close relation to its subject of study – the state, the public sector and the public realm – is in constant need of revision and reflection. The book takes a firm stand in stating that public administration is specific in its combination of scientific study and its capacity to contribute to improved public service and governance. Massey writes in the introduction: “In order to em- brace this appeal for a responsive PA that addresses the intractable problems of society and seek to do so within a framework of good governance, or at the very least to do no harm (to paraphrase the Hippocratic Oath), future research must be innovative, challenging and above all, it must be brave. It needs to speak truth unto power and meet head on the wicked issues of the day, not the least of which is malfeasance by those who have assumed high office.” (p. 3). In the final chapter, Drechsler discusses how the pressure to publish in specific journals according to pre-determined standards risks making the public administration scholar redundant, since, as he puts it provocatively, a computer could create these algorithm-articles better than the public administration scholar. He raises a serious warning flag. Drechsler also stresses that there are many ways of conducting public administration research. He argues that there is a bias toward European philosophical tradition when understanding the foundation of public administration, at the expense of, for example, Buddhist and Confucian tradition. Although the statement of Western dominance is not any sense a new one, I find the connection to philosophical traditions very interesting and inspiring. There must be room for more texts of this kind. Svensson | A Research Agenda for Public Administration 139

Overall, the volume rightly speaks to its readers as a research agenda for public administration, but not the one and only one. Other topics could definitely have been included, andthe book is also somewhat unbalanced between the chapters discussing the characteristics of public administration as a field and those focusing on specific topics. That said, the book makes for a rewarding read on both. It has distinct strengths in the chapters’ presentations of current tensions and topics of investigation. These are generally broad enough to give overall directions without becoming vague, and still specific enough to serve as a direct inspiration for further studies, both for students and scholars. It also has a clear strength in its firm stance onthe importance of the academic-practitioner relationship and it will be useful to anyone interested in the state of the art of public administration as a research field. Specifically, it is anriginal o ‘framing’ of a somewhat messy research. Graduate students would find inspiration in this book, as well as senior researchers interested in the topics and/or grappling with the relationship between academic public administration and the practice of governance and public management. International Review of Public Policy, Vol. 3, N°1, 2021, 140-142, https://doi.org/10.4000/irpp.1763

Book Review Malcolm TORRY, A Modern Guide to Citizen’s Basic Income: A Multidisciplinary Approach

Arya Pillai Post-doctoral Researcher Economic and Social Research Institute, Dublin , Ireland

A Modern Guide to Citizen’s Basic Income: A Multidisciplinary Approach Torry Malcolm

Torry, Malcolm. (2020). A Modern Guide to Citizen’s Basic Income: A Multidisciplinary Approach. Edward Elgar Publishing. Cheltenham, UK, 336 p., ISBN: 978-1-78811- 786-9. Hardback: $185.00, £115.00; e-book: $40.00, £25.00 Pillai | A Modern Guide to Citizen’s Basic Income: A Multidisciplinary Approach 141

‘Citizen’s Basic Income’ (also known as ‘Universal Basic Income’ or simply ‘Basic Income’) is a social policy that can radically transform work-leisure dynamics. A rise in the level of economic development in recent decades has brought an era of prosperity and higher standards of living for some, while leaving behind a significant proportion of individuals in financial insecu- rity and uncertainty. This is evident from rising inequality, poverty and homelessness, even in some of the most developed nations (World Bank, various years). Coupled with this, the threat of unemployment resulting from automation and shifts in production patterns has led to a renewed interest among policy-makers, academia and citizens in general in the idea of Basic Income and related policies. In such a context, Malcolm Torry’s A Modern Guide to Citizen’s Basic Income is a welcome addition for any student of this concept. The book follows a standard textbook style of prose and adopts a multidisciplinary approach for analysis, as indicated in the subtitle of the book. It is suitable for readers who are new to the concept of Citizen’s Basic Income (CBI), or those who wish to explore the ways in which such a far-reaching policy may impact on various spheres of social and economic organisation. The concepts and ideas examined in the book are well defined and explained in detail, which would suit undergraduate readers. Torry is well placed to comment on the history and development of the idea of CBI through his decades of involvement in the Basic Income movement in the UK. While such close involvement may imply a bias, Torry maintains an objective balance in analysing the merits of the concept and he addresses many of the critiques levelled against it throughout the book. Torry also addresses some of the debates surrounding the meaning of the term “Basic Income” and the appropriate attendant terminology early in the text. The adoption of the term “CBI”, defined as an unconditional income paid to every citizen, offers clarity and consistency in a field where confusion often arises from the different meanings that scholars attribute to the concept, based on linguistic preferences or on their affiliation with various regional Basic Income networks. The analysis is consistently based on the definition mentioned above and Torry does not attempt to analyse the CBI based on its several variants. Throughout the text, he juxtaposes CBI with other existing social policies, such as the UK’s means-tested benefits, and policy instruments such as negative income tax. However, related concepts such as Basic Income Guarantee (in the US context), or Ontario’s Basic Income Pilot, are not extensively covered in the discussion as these do not meet the criteria to be considered as universal or unconditional Basic Income, according to the author. One of the truly refreshing aspects of this book is the heterodox treatment applied in attempt- ing to understand and critique the idea of CBI. Torry’s approach is well balanced in the sense that equal weight and space are dedicated to the discussion of CBI through the lens of various traditions of social enquiry. He examines the feasibility of CBI using concepts from nine different fields of enquiry, from ethics and psychology to political economy and law. The chapters are organised along these lines and the analyses from these different traditions go a long away in explaining an otherwise complex and multifaceted concept. Questions of financial feasibility and undersupply of labour dominate debates on CBI; however, equally important concerns, such as social justice and the indignity of means tests in the current benefits system, are often glossed over by proponents and opponents alike. Torry provides a detailed account of the positive impact that CBI can have on psychology at both individual and social levels, based on the evidence from experiments, while he does not ignore the financial and administrative feasibility debates. The trade-offs associated with such a radical policy, including probable high income-tax on earned income, are considered along with the numerous gains (individual and societal) from such a redistribution. 142 International Review of Public Policy, 3:1

Overall, the book is fairly comprehensive despite its introductory character. Depth is sacri- ficed occasionally for the sake of articulating a more holistic argument; however, this has not impacted on the quality of the book. A reader interested in a particular aspect of CBI, such as financial feasibility, would have to turn to other sources, such as the research repositories of BIEN (Basic Income Earth Network), as this book is a broad introduction rather than an in- depth analysis of a particular aspect of CBI. Indeed, this book clearly demonstrates why such a narrow enquiry might not be sufficient to understand fully the utility of a policy such as CBI. To aid the curious reader further, Torry provides a variety of reading suggestions in the text. While Basic Income experiments and pilots conducted across the world are not discussed in detail (some of these do not qualify as CBI as the term is defined in this book), the case studies at the end of each chapter provide more technical details and practical implications. The UK context features heavily in the discussion throughout the text. However, the author’s close association with the UK’s Basic Income movement, and with the country’s long history of debates around this topic, contributes to the richness and broadness of this book. A more sceptical reader may still need clarification on certain aspects of the implementation and the feasibility of CBI, but the ethical and philosophical arguments that Torry outlines are sound, timely and useful to the reader. To conclude, this book puts forth some compelling arguments in favour of the idea of CBI and of how we can employ it to overcome some of the toughest challenges faced by our society currently and in the near future. World Bank. (n.d.). Gini index (world bank estimate). Retrieved from https://data.worldbank. org/indicator/SI.POV.GINI International Review of Public Policy, Vol. 3, N°1, 2021, 143-145, https://doi.org/10.4000/irpp.1928

Book Review Elin Lerum BOASSON, Merethe Dotterud Leiren, & Jørgen Wettestad (Eds.), Comparative Renewables Policy: Political Organizational and European Fields

Kristin Olofsson Assistant Professor, Department of Political Science, Affiliate Faculty, Environmental Science Graduate Program, Oklahoma State University, USA

Comparative Renewables Policy: Political Organizational and European Fields Elin Lerum Boasson Merethe Dotterud Leiren Jørgen Wettestad

Boasson, E. L., Leiren, M. D., & Wettestad, J. (Eds.), Routledge, 2020, 278 p., ISBN 9780367187668. Hardback: £120. Open access content available at the publisher’s website. 2020 144 International Review of Public Policy, 3:1

How can we look beyond power structures and economic influence to explain the ways in which policy is shaped? A seemingly simple task, but one that perpetually confounds policy scholars. Comparative Renewables Policy: Political, Organizational and European Fields recognizes that, despite the ubiquity of theories on the policy process, we regularly conclude that resources explain why big business interests shape energy policy more often than not. Boasson, Leiren, & Wettestad (Eds.) believe that we can do better. The aim of Comparative Renewables Policy is to create a unifying framework that explains renewable energy mixes between innovation-driven approaches, termed “technology-specific”, that create space for technology development, and government-driven approaches, termed “technology-neutral”, that create stable market conditions that favor the least costly technologies. The framework in the book aspires to fuse several theories of the policy process. This is a monumental task and, despite understandable criticism that sometimes artificial distinction between theories creates competition among those theories, there may be a valid reason why a unifying framework has not yet been developed. The policy process is a wide field and trying to capture the entirety of institutions, actors, organizations, norms, rules, and much more is perhaps too much for any one framework to handle. To explain outcomes in the renewable energy mix, much of the existing literature relies on economic and technological factors, such as the cost of renewable technology or infrastructure investment. The editors assert that these explanations are incomplete and that there is a need for a framework built on a “dynamic multi-field approach” that better incorporates political and social factors. There are three fields that influence policy developments, each with its own distinct characteristics and institutional conditions: the European environment, the domestic organizational field, and the domestic political field. Policy process scholars might recognize these fields as other related concepts, similar to policy subsystems or issue networks. The authors are transparent that their unifying framework draws on many existing theories of the policy process: polycentricity, institutionalism, agenda-setting, and the Advocacy Coalition Framework are prevalent among others. The framework is tested through six comparative qualitative case studies using process tracing. This is not simply an edited volume; Comparative Renewables Policy is a coordinated effort that combines an expanse of information and evidence on one of the most puzzling issues facing scholars and governments alike: how to efficiently regulate while encouraging innovation. The editors and authors are more than qualified on the issue of renewable energy as well as policy scholarship. The theoretical and empirical work of the book was vetted throughout the research process and at various academic and practitioner conferences. The scientific merit of the authors cannot be denied and is one of the strengths of the work, as is the dedication to valid and transparent research design. Yet another strength is that all chapters use the same guiding questions, centered on the ways in which the eponymous fields affect the development of renewable support mixes and how changes in one field influence changes in another. The systematic comparison yields some interesting findings. Not surprisingly, the European environment often has a strong effect on domestic policy choices, but there is marked variation based on the circumstances under which the level of that influence fluctuates. The country applications are all well done and rigorous in their assessments of the framework. The chapter on “Europeanization of renewables support” by Boasson is an excellent coverage of the progress of the European environment in regard to renewable energy policy. Boasson traces the region from disaggregation prior to 1999 through more recent trends of harmonization and state-centered action. She follows this with chapters on Norway and Sweden that stand Olofsson | Comparative Renewables Policy: Political Organizational and European Fields 145 out for their treatment of technology-neutral approaches. The Norwegian case follows the fas- cinating development of one of the “least-generous support-scheme mixes in Europe” (p. 139) in a country that was already approaching 100% renewable electricity production three decades prior. The Swedish case appears largely to hinge on its actions in following the EU in the late 1990s but detached since from the influence of Europeanization. Leiren and Reimer focus on how Europeanization has influenced German policy in their chapter and conclude that, in the highly politicized context of Germany, the domestic political field is perhaps most explanatory for renewable mixes. Szulecki’s treatment of Poland fulfills a special role as the one case with significantly different economic and political conditions, marked most often by instability, in comparison to the other cases in the book. We learn that the influence of supranational bodies can be sizeable and long-lasting, even before formal oversight authority. The authors note that they look forward to applications of the framework in other countries, to understand more about the generalizability of the findings, particularly as regards the organizational field and, to a lesser extent, the political field. In both cases, the research recognizes that domestic conditions – formal and informal – play an outsized role in explaining the shape of policy. It is perhaps here that the lofty goal of the book falls somewhat short, in that initial promises of a unifying framework do not quite pan out. Ultimately, Comparative Renewables Policy may be the victim of the same criticism it hoists upon existing theories – it delivers too little substantively that is transportable across domains. How should this framework be applied outside of the European context? There is vast potential here for application in the United States, for example, where renewables policy varies state to state. There isn’t a European field to account for, so how is that replaced? Much of the book relies on Europeanization and associated mechanisms to account for the influence of a supranational body. This may be a limiting factor in application outside Europe. The potential of the framework would be enhanced with consideration about the transportability of the approach and findings beyond Europe. How- ever, theory development on the role of Europeanization is discussed at length and there is still ample opportunity for application in Europe, nonetheless. In addition, the case insights on domestic organizational and political fields may provide some fodder for application in other regions. Comparative Renewables Policy is suited for policy scholars interested in exploring the ways in which policy development might be considered from a top-down theoretical orientation. The work should be commended for its treatment and inclusion of many disparate theories of the policy process and the attention to detail in developing a testable framework. In addition, the book serves as methodological inspiration for researchers aspiring to develop a wide-scale comparative approach across many differing contexts. Finally, Comparative Renewables Policy is unparalleled in the depth of knowledge about renewable energy policy in Europe. However, given its substantial theoretical focus, it is less accessible to a general practitioner audience as a topical resource. CALL FOR INDIVIDUAL AND INSTITUTIONAL SUPPORT

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