The Act of Legitimizing: Political theory and context for a Civic Voice Archive

By Emelia Williams, Civic Voice Archive Fellow

This blog explores some of the political concepts and context, like legitimacy, trust and governance and their intersection with information and data systems so that we can situate the role of a Civic Voice Archive .

United States democracy undeniably suffers from a legitimacy crisis; a marked decline in the public’s confidence in leadership that results from structural failures of the state to respond to the citizenry’s expectations and needs. From the bottom-up, civic voice — through testimony and commentary — has fallen away from the center of lawmaking processes.

A July 2020 poll from the Pew Research Center confirmed that only 20% of American citizens trust the federal government to do what is right most of the time. But in that same survey, 57% of citizens say that, as Americans, we can always find ways to solve our problems. There is a desire to work toward changes that need to happen, but we often lack the tools or opportunities to engage in dialogue, provide feedback, or improve the nation’s institutional and lived memory.

Using the Centre for Public Impact’s framing, legitimacy is the reservoir of support that allows governments to deliver positive outcomes for people. It lives at the whole-of-government level but also has significance with the individual and community. This is extrapolated from other forms of governing legitimacy, like embedded legitimacy (that comes from history, culture, and international norms of recognition) or international legitimacy (that comes from treaty obligations and expectations, or consequences of interventions). There is a process of legitimacy between the state’s capacity to legislate and provide services, and the citizenry’s expectation and engagement. This process of legitimizing, between policymakers and the citizenry, is a process within the system of democracy. A cog in the wheel, or oil in the engine, an essential element that secures the efficacy of the system itself.

To understand legitimacy as part of the democratic structure and the relationship between policymakers and citizens, we can break down the concept into three elements: trust, justice, and data.

Trust, we can frame as the citizen’s trust in individual lawmakers’ integrity and in the process of lawmaking itself, that is, that policymakers are working with the good of the populace in mind and that the process of lawmaking is viable in and of itself. Justice acts as the ability to hold lawmakers accountable when they don’t meet the expectations of the citizenry and as an expectation of the people. It is a value as much as it is an aspiration. The third, data, is the necessary component for context and understanding within the lawmaking and legitimizing process. Without the contextual information to interpret localized trends and to make decisions, lawmakers cannot apply precision and accuracy within the implementation of policy and constituents cannot engage with and provide feedback.

As an example, let’s look at the issue of mountaintop removal’s effect on clean water in Eastern Kentucky. Strip and mountaintop removal mining have extremely adverse effects on the waterways in Appalachia; from sludge ponds to acid mine drainage to valley fills. One of the main pollutants is sedimentation, which often carries a myriad of metals and salts. Under the Clean Water Act, there are systems in place to mitigate water pollution, namely a process where states are required to develop a list of all polluted streams and the contaminants found there. When a stream is on the list, the state is required to place quantifiable limits on any new and existing sources of pollution as a recovery measure. These are called Total Maximum Daily Load limits on pollution.

This isn’t working in the commonwealth of Kentucky because the state has not recognized sedimentation as a pollutant, thus never creating Total Maximum Daily Load limits. This has left 95% of streams in Eastern Kentucky “impaired,” or unable to support their designated uses. Activist groups have mounted campaigns and lawsuits to mandate the enforcement of the Clean Water Act and built capacity for citizen science and community science approaches to monitoring and enforcing altered rivers.

We can move this policy through the process of legitimizing and see where a more defined sense of trust, more similar views of justice, and data could provide a more equitable and legitimate outcome for communities in Eastern Kentucky.

Trust must be built and reinforced over time, from expectations being met to engagement being welcomed and incorporated into lawmaking itself. This is also often where the perception of effectiveness comes into play. Additionally, the ability to trust the federal and state governments is often reflective of a community’s ability to trust other stakeholders, from corporations to other citizens to academia to the media. For example, community science groups, like Kentuckians for the Commonwealth and Alliance for Appalachia , engaging in monitoring streams and rivers under the Clean Water Act must trust that the data they present will be acknowledged during the enforcement of the law.

In order to have justice as an element in the legitimizing process, the two parties, the community of citizens and the policymakers, must have a common idea of what is owed and what is expected of the relationship and outcomes. Expanding ways of collaboration and dialogue are ways of increasing the likelihood that fairness can be agreed upon, with both parties expressing their priorities or needs and the obstacles to having those fulfilled. It’s evident that there is a lack of justice within this specific legitimizing process in Eastern Kentucky; there are two completely different expectations with a lack of receptive government engagement.

Data, as a third element of legitimacy, can be an equalizing force and can provide empirical evidence as a tool for lawmaking. When its access is prioritized, authority on an issue can be localized; information can often implicate control. The need for independent water monitoring is recognized by these organizations due to the lack of historical precedent in holding coal companies accountable. They recognize this need for data and organize around community-based water testing, providing this data not only to the state agencies but also on accessible online platforms . The ball is now in the state government’s court, back at the top of the diagram above, in the recognition that the delivery of services is not adequate and new policy needs implementation.

Most conversations on legitimacy within governance systems take a top-down approach, where there is an end goal of having a populace that trusts and respects the rule of law and the state has the exclusive authority on enforcement. This idea of legitimacy, at its base, is more aptly a description of sovereignty. It is needed, but is not enough on its own. This narrow idea of a legitimate government often causes the breakdown of lawmaking, when policies don’t serve the people, because there is a weak system for information in the formative period, and the stages of monitoring and evaluation. Trust can be a tenuous agreement in this system, because when broken, there are few or faulty mechanisms for citizens to truly engage or express expectation outside of civil unrest.

In a democratic society, a more complex idea of legitimacy must be sought out, one that navigates authority from the top down, but also from the bottom-up, as a process, not an end-state. At an institutional level, this means Congress must serve in this middle out facilitator role, one that provides a balancing force to actions of the Executive Branch while reflecting the civic voice of local communities. However that successful facilitation hinges on the amount of legitimacy-making opportunities embedded along the supply chain of information and data.

Within the process of legitimizing, where are the inflection points for providing more legitimacy-via-information from the bottom-up, from the constituents to the policymakers? How can we multiply but also reinforce these inflection points? Where in the process of lawmaking is the ideal place to reinforce the authority of citizens? What is the point at which to create a completely new system?

Through dialogue and fact-seeking, we do the work of legitimizing. If trust, justice, and data are the elements that can bolster the legitimizing process, SIDE (Shareholder, Individuals, Data, and Evidence) events and the proposed Civic Voice Archive can act as the inflection points. The SIDE event bolsters the legitimizing process and modernizes the lawmaking process by taking advantage of digital methods, now that due to COVID19 zoom meetings are a possibility, and act as a compromise between a Town Hall and a Field Hearing. Through this method, Congressional Members can bolster civic voice by entering district-based, standardized public witness testimony in the official committee record.

In the U.S. today, we need systems that reflect the two-way street of information and data, and thus, authority — between constituents and elected leaders. We must move past the idea that the social contract is at one point in time recognized and thus, legitimized. Citizens, and their elected representatives, must be able to access a mechanism that acts as a legitimizing force from the bottom-up. SIDE Events and a Civic Voice Archive are essential parts of the legitimizing process, needed tools in the portfolio of democratizing solutions; a new way of accountability, a new way to question the permissibility, and inform possibility from the lawmaking structure to the districts themselves.

Originally published at https://www.openenvironmentaldata.org on December 17, 2020.

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