What is Public Policy and Why Do I Care?

Public Policy is any action (or inaction) taken by the government. Most of us think about policy as something that Congress fights over, passes, and then pays for with our salaries. But Public Policy is much more complex than legislation that passes through Congress. Public Policy includes a range of actors, interests, and institutions that interact with ideas to produce outcomes.

This blog examines case studies in Public Policy to understand why public policies exist and what drives the creation of new policies, where these policies come from, and what shapes these policies.

Case Study on Net Neutrality

What is Net Neutrality:

A neutral Internet is a place where the owners of networks (communications corporations like AT&T or Comcast) which enable data to be transferred over the Internet allow content to flow in a way that does not discriminate on the creator, user, or type of content. Net Neutrality is a term that refers to the open ended, or neutral, access that subscribers and creators have in connecting to the Internet. A neutral Internet guarantees that small start-up companies, where most Internet companies begin, are given a chance to compete with larger firms like Google. It also ensures that the owners of networks are not allowed to charge a premium to companies like Yahoo! or Microsoft to allow one company to gain a bandwidth advantage over the other. Companies that own the networks say that the cost of maintaining and expanding their networks makes these possible revenue sources necessary to sustain affordable broadband access (WSJ 2006). Network providers seek the increased profit that a “non-neutral” internet would generate, but policy experts have argued that a neutral internet is the optimal outcome for consumers and providers.

Here is a look at the Net Neutrality case study:

How Did Net Neutrality Start?

Who Influenced the Creation of Legislation?

What Do Courts Have to Say About Net Neutrality

This case study provides an important glimpse into the process of how ideas and institutions interact to influence policy. Net neutrality began with an important decision by the FCC, given force by a Supreme Court case, and eventually moved into the halls of Congress. Looking at the process through which net neutrality moved out of obscurity and into the mainstream political dialog underscores the most important aspect of public policy: policy does not exist in a vacuum. Decisions by institutions like the FCC, Congress, and the Supreme Court interact with opinions of the public and experts. Public policy is not a linear process. A bill does not suddenly become a law. The process involves a variety of interests, institutions, and actors which allow the government to take action (or not take action) on particular issues.

Why Courts Matter

In 2002, the FCC issued a declaratory ruling reclassifying network providers as “information services” instead of “telecommunication services.” This small distinction had important consequences. Telecommunication services, like telephones, had traditionally been tightly regulated and thus under this definition network providers were required to maintain neutral access to their networks. By classifying network providers as information services, the FCC essentially deregulated network providers and no longer required them to assure neutral access to their networks. When the Supreme Court affirmed the legitimacy of the FCC’s decision, net neutrality, which had been the norm when broadband companies were classified as telecommunication services, suddenly became an issue. After a Supreme Court decision, an issue in Congress can become an entirely new problem complicated by the court’s interference. Courts narrow the scope of possible responses to policy problems because they will strike down policies that conflict with precedent and enacting new legislation may be politically difficult. Although they are not elected and serve lifetime tenure, the justices of the Court shape the policy process through the decisions they produce and the precedent those decisions create.

The Supreme Court has the ability to change the venue in which a policy issue is being considered. Statutory interpretation inevitably impacts policy because justices interpret how a policy will be applied. When Congress passes a law the language of that law may be ambiguous – either intentionally or by accident. Statutory interpretation is the process through which courts engage in the interpretation of legislative language in order to apply it. Whether a court decides on one meaning or another, it is shaping that policy in a way that is removed from the legislative process. These decisions can empower certain agencies to implement a specific policy interpretation. Which agency, or venue, controls an issue impacts how an issue will be considered. Affirming an agency’s purview over a certain issue shifts the authority of decision making toward a specific agency. The power to interpret what legislation means gives courts the ability to give agencies authority and shapes how policy will be implemented. Through statutory interpretation, courts give agencies authority which they would not be able to exercise without the court’s added legitimacy. Agencies execute laws passed by Congress, but Congress can check and balance policies that agencies produce with legislation. Intervention by courts, through interpretation of statutes, disrupts this hierarchy and gives agencies added legitimacy. Court decisions can expand the authority of a federal agency and give it more power to make policy by interpreting a statute in favor of a federal agency.

Court decisions constrain policy alternatives and narrow the range of possible outcomes. Once courts interpret a statute, those decisions become the law of the land and affect the way Congress and federal agencies act. Some decisions determine what legitimate policy is and what will not pass constitutional muster. Legislation that flies in the face of precedent can be struck down by courts through the process of judicial review. Policymakers can be forced to pick from options that are legally possible. Even if a majority of legislators support a policy alternative it must fit within the framework established by courts. In statutory cases, if the Supreme Court sides with an agency Congress has the ability to pass clarifying legislation. The process of amending a law post facto can be difficult. Court decisions create new constituencies within agencies and among interest groups who agree with a decision. Stripping an agency of power it already has or taking away benefits from people who are already receiving them is much more difficult once the court’s interpretation becomes the status quo. Courts can create constraints on alternatives that did not exist when the original policy was being considered. Without Congressional clarification, agencies in the executive branch are charged with executing the decisions of the judicial branch. But court decisions also constrain the range of possible actions federal agencies can take. A specific interpretation of a statute binds the actions of a federal agency to that interpretation. Federal agencies cannot override judicial interpretation once it is made. Court decisions frame the environment in which federal agencies are able to act. Decisions made by courts limit the way a policy can be changed or carried out.

The FCC’s controversial declaratory ruling to change the status of cable modem providers would not have survived without the legitimacy the courts granted the decision. In 2002, the FCC reclassified cable modem providers as information services (FCC 2002). This freed network providers from many regulations attached to a telecommunications status. The declaratory ruling was immediately challenged in court. A small company called Brand X challenged the FCC’s authority to make this decision based on the Telecommunications Act of 1996 (Oyez). The Supreme Court was eventually called upon to make a statutory interpretation of the Telecommunications Act. In National Cable and Telecommunications Association v. Brand X Internet Services the Court affirmed the FCC’s authority to determine the regulatory status of network providers based on the language of the statute (Oyez). The Court’s statutory interpretation solidified the FCC’s declaratory ruling in a way that provided legitimacy. The decision also contained the venue where net neutrality would be considered within the FCC by affirming its ability to make decisions regarding network policy. The Supreme Court’s decision ensured that the FCC’s ability to regulate internet providers was legitimate.

Political actors seeking to address the issue of net neutrality with policy alternatives were constrained by the Brand X decision. The Court’s decision altered the status quo in a way that changed the way Congress considered the issue of net neutrality. By the time Brand X was decided, the FCC’s interpretation had been the status quo for three years. Overturning the decision through clarifying legislation required stripping the FCC of power it already exercised and based policy on. Moreover the FCC’s decision created constituencies which supported (or opposed) the declaratory ruling. It initiated polarization over an issue on which there had been political consensus. Accepting the Court’s ruling made congressional attempts to address net neutrality more complicated. Congress had to work within the court’s framework, where regulating network providers included regulating cable networks and other information services. The Brand X decision also meant that the FCC no longer had the power to regulate network providers. In 2007 the FCC fined Comcast for disrupting certain internet users from downloading content (Comcast). Comcast sued the FCC, citing Brand X, arguing that the FCC could not regulate Comcast. A court of appeals ruled that the FCC was not allowed to regulate Comcast like a telecommunications service because of the way the Brand X ruling (Pacer). The agency’s options for encouraging net neutrality were reduced to two possibilities; the FCC could have taken the unprecedented step of regulating information services or it could reverse its 2002 declaratory ruling (Owen). Neither was a political viable solution (Owen). The policy alternatives to existing network policy were narrow because the Brand X exerted tight constraints on what steps federal agencies can take to regulate network providers.

Courts are one of the most powerful institutions in the policy making process because of the constraints they can set on traditional policy actors. Through statutory interpretation, courts can decide what legislative language means and what processes to execute that language are legitimate. Decisions by courts influence how policy is carried out, but also control how future policy can be created. The decision by the FCC to reclassify broadband providers was given force by support from the courts through the Brand X decision. But federal agencies cannot enact policies that conflict with the Court’s interpretation in Brand X. Because support for clarifying legislation did not exist in Congress the court’s interpretations directed how policy would be carried out. The Supreme Court’s Brand X ruling expanded the power of the FCC and established the scope of possible approaches for ensuring a neutral internet. Intervention by the courts is a mechanism that makes certain interpretations of policy legitimate; ensuring that this view dominates the way a policy is executed. The issue of net neutrality was reformed by the Courts and will continue to exist within the scope of debate established by the Brand X decision.

What Experts and Academics Do to Policy

Policy entrepreneurs select experts’ policies when public opinion on an issue is muted. With indecisive public opinion, entrepreneurs are able to invest resources in policies that reflect the attitudes of experts. When entrepreneurs looked for solutions to address problems with broadband networks they initially selected policies that were influenced by experts. As public opinion changed, so did the incentives for entrepreneurs investing resources in net neutrality.

Policy entrepreneurs influence the policy process by selecting certain policies and ignoring others. One way that policy is generated is in what Kingdon calls a policy soup, a way to describe how policy communities influence the creation of policy (Kingdon 117). A policy community, as defined by Kingdon, is a place where specialists (experts) in a given issue area circulate policy ideas or alternatives (Kingdon 117). Experts influence the creation of policy in this soup but have no role in promoting a policy alternative beyond their policy community. Moving a proposal out of a policy community requires the efforts of policy entrepreneurs, who can be members of Congress or other elite actors like the President. These actors do not always select policies that are generated by policy communities, however. Public opinion can increase the cost of supporting a policy that is unpopular. If public opinion is muted or indecisive, the benefits for entrepreneurs gained by selecting alternatives from policy communities outweigh the costs incurred by taking a position on an issue. When public opinion on an issue is polarized, entrepreneurs will select solutions that are more responsive with public opinion or invest political capital – an entrepreneur’s ability to credibly support different issues – to change public opinion. The influence of experts on policy decreases when an issue is salient in public opinion because entrepreneurs are constrained by public opinion.

Experts are able to exert influence because most issues are ignored by the public. When an issue does not have a large issue public, entrepreneurs are less constrained and are able to select a policy from a community of experts that suits their personal interests. If people do not care about a piece of legislation then enacting it costs less political capital. Once a policy is selected, elites can influence public opinion. In a paper on elite leadership of public opinion, authors Brody and Shapiro identify conditions under which public opinion is unified. When elites are unified the public responds to opinion leadership because all the information they receive is in support of elite policy (Brody and Shapiro). Entrepreneurs can select alternatives created by experts that have a small issue public and generate elite consensus (which stifles public opinion) with relatively little political cost, or political capital. If an issue public grows because of special interests or the elite consensus dissolves then an issue becomes polarized. In this environment public opposition means supporting the issue requires more political capital. Entrepreneurs are less likely to select expert alternatives in opposition to public opinion because the costs outweigh the benefits. A polarized environment means that experts have less influence, but they can still soften up public opinion and calm opposition to future legislation (Kingdon 128). Experts can influence policy that is not on the public’s radar or help soften up a polarized electorate.

Net neutrality began with a small issue public and opinion in major polls showed that the public was indecisive on whether they wanted a neutral internet or not. The public didn’t really understand the proposed regulation of broadband access and so the issue public simply included network providers, who had a large stake in regulation and were directly affected by it. A poll taken in 2006 showed that only 7% of people had ever heard of net neutrality or knew what it was (Fisher). Public opinion was not divided it was non-existent. Indecisive or uneducated public opinion is similar to unified public opinion in that it does not constrain entrepreneurs. Taking a position on an issue that people do not know or care about requires less resources and political capital. This was an environment where the potential for expert influence was high because public opinion was undecided. Net neutrality proponents had the opportunity to introduce their expert alternative under the radar and build an elite consensus so that the cost for supporting their legislation was low. The lack of influence public opinion had in 2006 opened a window for entrepreneurs to make less constrained decisions.

Experts produced policies that would have increased the FCC’s ability to regulate the internet and unconstrained policy entrepreneurs were able to introduce policy that reflected these alternatives. In 2006 the CEO of Google, Eric Schmidt, produced an “open letter” arguing in favor of net neutrality (Schmidt). Released on Google’s technical blog, the release impacted the way that the neutrality policy community considered the issue. The letter produced momentum to support internet neutral policies. In 2005, RAND Corporation, a policy think-tank, produced a policy analysis memo assessing the issue of broadband access. Their research attempted to determine “policy options for government intervention” (RAND 1) in regulating broadband internet access in North American (and Europe). The RAND proposal included a suggestion that governments encourage “open, non-proprietary and user-led standards” for internet access (RAND 5). Expert consensus was that net neutrality was the best regulatory system, and policy entrepreneurs nudged forth by interests like Google brought the ideas out of this policy community and into Congress.

In 2006, legislation regarding broadband regulation favored a net neutrality approach; it represented the views of experts because public opinion was non-existent. The change in tone of legislation and the ultimate failure of net neutrality legislation to win a majority vote in Congress was the result of a change in constraints on policy entrepreneurs, in this case members of Congress. When network providers realized what was at stake they polarized public opinion and fractured the elite consensus. Interest groups lobbied Congressman (Bosworth) and changed the incentive structure of these entrepreneurs by raising the political cost of supporting net neutrality legislation. The issue was polarized and taking a position required investing political capital. Entrepreneurs’ incentive structures began to favor opposition to net neutrality legislation instead of support for it. Interest groups are one way that public opinion interacts with entrepreneurs to increase the constraints on their vote and make it more difficult for politicians to ignore public opinion. Once the cost of investing resources to support the policy outweighed the benefits of supporting the legislation, it lost support. Instead of selecting policy based on personal preference they made a vote based on electoral incentives because public opinion changed the constraints on entrepreneur’s vote.

The cost of passing net neutrality legislation was too high for policy entrepreneurs in Congress. The potential influence of experts on policy was reduced by the constraints of public opinion. Experts have power when entrepreneurs act unconstrained by public opinion, the ultimate electoral incentive. In the case of neutrality, initial public indecisiveness created a low cost for entrepreneurs to support expert policy which they believed in. The development of competing interest groups increased the costs of passing the legislation and consensus on net neutrality broke down in Congress. This does not mean that experts’ opinion has had no influence. Although the issue is polarized, experts can continue to influence public opinion by softening up the public. Net neutrality’s failure may put the issue on the map in a way that sees public opinion change over time because of the influence experts exerted in 2006.

How Venues Affect Policy

Net Neutrality is an issue that began as a policy monopoly in a small venue and eventually developed into a part of the government agenda in 2006. When a political opportunity presented itself, the issue of net neutrality moved from the government agenda to the decision agenda.

Net Neutrality is an example of a policy monopoly that was gradually eroded. Before 2005, there was no alternative to the government’s status quo policy and most people outside the FCC (Federal Communications Commission) did not discuss the issue. This allowed a specific group, the FCC, to exert considerable influence over the issue and maintain a policy monopoly. In Instability in American Politics, Baumgartner and Jones follow the erosion of the nuclear policy monopoly in order to identify two forces which help break down policy monopolies: changes in the image of an issue and the venue in which that issue is being considered. From 2005 to 2006 the policy monopoly over the issue of net neutrality was destroyed because its image in the public changed and the venue it was considered in expanded

Two key developments contributed to the expansion of the policy venue in which net neutrality was being considered. In 2002 the Coalition of Broadband Users and Innovators (CBUI) was formed (Greenfield 2006) and by 2003 the group included companies like Yahoo! and Microsoft. This was the first time an interest group had formed in opposition to the government’s status quo policy on net neutrality. In 2003, a small internet provider sought access to a larger cable companies’ network as a public good, but the FCC said the cable company had private ownership over their network. In 2005 the U.S. Supreme Court ruled in National Cable and Telecomm. Assn v. Brand X Internet Services (Brand X) that the FCC was right in allowing cable companies to have private ownership over their networks (Oyez 2006). By 2005 the Supreme Court’s ruling and the formation of a powerful interest group took the issue of net neutrality and ownership of networks outside the confines of FCC regulatory meetings, where the issue had survived since before 2004 (Greenfield 2006), and brought the issue into focus for a wider public and into the halls of Congress.

The expansion of a venue coincided with the development of a new public image toward net neutrality. By 2005 large corporations like Yahoo! and Microsoft had staked out a claim in opposition to network provider’s rights to monopolize internet access. As the issue was discussed in the public, the “neutrality” position gained popularity. A New York Times editorial suggested without net neutrality we would “stifle promising innovations” and that this was a time for the “public interest” should “trump the special interests.” (NYT 2006) In the Press the issue began to be covered with a David and Goliath theme. Even the name net neutrality implies that the opposition is not neutral, unfair or even corrupt. Baumgartner and Jones’ work argues that “changes in venue reinforce changes in image” (Baum/Jones 13) such that as an image becomes viewed more negatively it begins to show up in more venues (the media, courts, and Congress) and the more people learn about the issue the more they dislike it (which helps expand the venue even further). This is exactly what happened with net neutrality in 2005. As interest groups brought the issue to Congress and out of small FCC meetings a negative image began to be associated with private network control. Net neutrality became an issue only when it began to be viewed negatively by the public. After the status quo is no longer accepted and the policy monopoly deteriorates an alternative policy is necessary to address what the public begins to see as a problem.

The change in venue and image in 2005 eroded the policy monopoly over net neutrality and when an alternative policy developed the issue of net neutrality moved onto the government agenda. Kingdon describes the government agenda as “subjects people in and around government are paying serious attention to.” (Kingdon 13) Policy monopolies do not appear on the government agenda because a policy monopoly implies that there is little disagreement about how an issue should be dealt with, and therefore people in government are not seriously considering changing that policy. Once a policy monopoly is destroyed however, an issue moves onto the government agenda because there is a need to reconsider a position. Without this need there is no reason to discuss an issue, which is why net neutrality remained off the government agenda until the issue became polarized with differentiated points of view. In 2005 the issue of net neutrality moved onto the government agenda because alternatives were being discussed in congressional committees.

In order for net neutrality to move from being considered on the government agenda to being voted on the decision agenda a policy window had to open. Kingdon identifies three different streams that must be coupled to open a policy window: a political stream, the politics that affect a decision, the problem stream, how and why an issue becomes a problem that must be addressed, and a policy stream, the available policy alternatives (Kingdon 13).In 2006 the problem of net neutrality was evident to policymakers and an alternate policy was being advanced by interest groups, the policy and problem streams were active. The remaining challenge was to couple the political stream with the policy and problem streams.

The passage of related legislation helped make net neutrality politically possible and opened a policy window for net neutrality legislation. Passing one piece of legislation can help open a policy window for another piece of related legislation. Kingdon describes this “spillover” effect as the “increase in probability that a window will open for another similar subject” after a piece of legislation is passed (Kingdon 25). The spillover effect can help align the political stream with the policy and problem streams because it puts issues onto the decision agenda that relates issues can be tied to. This is what occurred when Congress considered the Advanced Telecommunications and Opportunities Reform Act of 2006 (ATORA), a piece of legislation that sought to deregulate the telecommunications industry (NYT 2006). This act was politically viable and opened the window for consideration of related measures like net neutrality. The spillover effect helped couple the three streams together by uniting the political stream with an existing policy that answered a recognized problem. The last remaining piece was a political entrepreneur, what Kingdon describes as “advocates willing to expend resources” (Kingdon 19) to advance a particular issue. Without an individual in Congress advancing a specific position, issues cannot be put onto the decision agenda. A political entrepreneur is an essential part of aligning the political stream with a specific policy in the policy stream. Representative Edward Markey (D-MA) expended his political capital in order to advance an amendment to ATORA which advocated for net neutrality standards (NYT 2006). The spillover effect and a political entrepreneur worked together to couple the political stream. The introduction of the amendment was the final blow to the policy monopoly that had dominated net neutrality. The policy window that had been opened by the coupled streams enabled net neutrality to move from the government agenda to the decision agenda, and ultimately reach a floor vote in the House of Representatives.

The issue of net neutrality moved onto the decision agenda from 2005 to 2006 through a process that combines the models proposed by Baumgartner and Jones and Kingdon. In 2006, three coupled streams (a political reality and a policy addressing a recognized problem) produced a policy window for a decision on net neutrality legislation as Kingdon’s model suggests is necessary. But Kingdon’s model does not provide a convincing framework for considering how an issue comes to be on the government agenda in the first place. Prior to 2002 net neutrality was not being seriously considered in circles of government. Net neutrality moved onto the decision agenda by following a model which combines the strengths of Baumgartner and Jones with the weakness in Kingdon’s policy model. Most government policies exist in a policy monopoly – there is only one position on the issue – and do not sit on the government agenda. When a policy monopoly begins to erode, through a process of changing images and expanding venues, alternative policies are considered. The issue moves from the control of a policy monopoly onto the government agenda and ultimately fits into Kingdon’s analytic framework. Future legislative action can be taken on the issue of net neutrality because the policy monopoly has evaporated. Kingdon’s model suggests that it will move back onto the decision agenda only when the politics stream is coupled with the policy and problem streams.