D2.Civ.9.9-12: Choosing and Using Deliberative Processes in Legislatures, Agencies and Communities

Overview

Lesson Procedure

60-80 minutes of class time across 5 phases.

1. Warm-Up5-10 minutes
2. Direct Instruction15-20 minutes
3. Guided Practice20 minutes
4. Independent Practice15-20 minutes
5. Closure5-10 minutes

1. Warm-Up5-10 minutes

   Warm-Up Prompt

   "Your student senate has a rule that any motion must be posted 24 hours before it is voted on. At today's meeting, the president says: 'Everyone here supports this motion, so let's skip the rule and vote now.' Should the senate do it? What could go wrong, today or later?"

   Give students two minutes to write, then take a quick poll and two arguments from each side. Most classes split between "rules are just a formality" and "rules protect people who are not in the room." Keep the answers on the board: Source 1 speaks directly to this question. Then pose the lesson's question: How do you know which deliberative process is the right one for a setting, and how do you carry it out well?

2. Direct Instruction15-20 minutes

   Part 1: What makes a process appropriate? Introduce four questions to ask about any setting before choosing a process: Who is bound by the decision (only the group, or the public)? How many people or interests take part? What is at stake, and must everyone carry out the result? Is there a fixed set of options, or must the group create one? Diagram 1 shows how the answers point toward three families of processes.

   Part 2: Rules in a legislature (Source 1). Thomas Jefferson wrote his Manual of Parliamentary Practice while he was Vice President and presided over the Senate, from 1797 to 1801. Since 1837 the House of Representatives has followed it where it applies and does not conflict with House rules. In Section I, Jefferson quotes Arthur Onslow, Speaker of the British House of Commons from 1728 to 1761. Glosses: "administration" means the government in power; "forms" are rules of procedure; "caprice" is a sudden whim; "captiousness" is a habit of finding fault.

   1Mr. Onslow, the ablest among the Speakers of the House of Commons, used to say, "It was a maxim he had often heard when he was a young man, from old and experienced Members, that nothing tended more to throw power into the hands of administration, and those who acted with the majority of the House of Commons, than a neglect of, or departure from, the rules of proceeding; that these forms, as instituted by our ancestors, operated as a check and control on the actions of the majority, and that they were, in many instances, a shelter and protection to the minority, against the attempts of power." So far the maxim is certainly true, and is founded in good sense, that as it is always in the power of the majority, by their numbers, to stop any improper measures proposed on the part of their opponents, the only weapons by which the minority can defend themselves against similar attempts from those in power are the forms and rules of proceeding which have been adopted as they were found necessary, from time to time, and are become the law of the House, by a strict adherence to which the weaker party can only be protected from those irregularities and abuses which these forms were intended to check, and which the wantonness of power is but too often apt to suggest to large and successful majorities, 2 Hats., 171, 172.

   2And whether these forms be in all cases the most rational or not is really not of so great importance. It is much more material that there should be a rule to go by than what that rule is; that there may be a uniformity of proceeding in business not subject to the caprice of the Speaker or captiousness of the members. It is very material that order, decency, and regularity be preserved in a dignified public body. 2 Hats., 149.

   Part 3: A committee markup (Source 2). Most work on a bill in Congress happens in committees. How Our Laws Are Made is the official explanation of the process, revised in 2007 by the House Parliamentarian, the nonpartisan official who advises the House on its rules. Glosses: a hearing is a meeting where witnesses testify; germane means relevant to the subject of the bill; to table a bill is to set it aside; to report a bill is to send it on to the full House with the committee's recommendation.

   1Upon request by a majority of them, minority party members of the committee are entitled to call witnesses of their own to testify on a measure during at least one additional day of a hearing.

   2Each member of the committee is provided five minutes in the interrogation of each witness until each member of the committee who desires to question a witness has had an opportunity to do so. [...]

   [...]

   3After hearings are completed, the subcommittee usually will consider the bill in a session that is popularly known as the "markup" session. The views of both sides are studied in detail and at the conclusion of deliberation a vote is taken to determine the action of the subcommittee. It may decide to report the bill favorably to the full committee, with or without amendment, or unfavorably, or without recommendation. The subcommittee may also suggest that the committee "table" it or postpone action indefinitely. Each member of the subcommittee, regardless of party affiliation, has one vote. [...]

   4At full committee meetings, reports on bills may be made by subcommittees. Bills are read for amendment in committees by section and members may offer germane amendments. Committee amendments are only proposals to change the bill as introduced and are subject to acceptance or rejection by the House itself. A vote of committee members is taken to determine whether the full committee will report the bill favorably, adversely, or without recommendation. If the committee votes to report the bill favorably to the House, it may report the bill with or without amendments. [...] A committee may table a bill or fail to take action on it, thereby preventing its report to the House. [...]

   Ask: which rules in Source 2 give the minority a voice even though the majority will win the vote? Students should find at least two. Then preview Activity 1, where the class runs a markup under these rules.

3. Guided Practice20 minutes

   Consensus in a federal agency (Source 3). Federal agencies write rules (regulations that have the force of law) under laws passed by Congress. Usually an agency drafts a rule and then invites public comments. The Negotiated Rulemaking Act of 1990 lets an agency try a different process first: it brings representatives of the affected interests together in a committee to negotiate a draft rule by consensus, with a facilitator running the meetings. Glosses: concurrence means agreement; an interest, in the Act's own definition, is a set of parties with a similar point of view; "notice and comment" is the usual public-comment step.

   §562. Definitions

   For the purposes of this subchapter, the term— [...]

   (2) "consensus" means unanimous concurrence among the interests represented on a negotiated rulemaking committee established under this subchapter, unless such committee—

   (A) agrees to define such term to mean a general but not unanimous concurrence; or

   (B) agrees upon another specified definition; [...]

   (4) "facilitator" means a person who impartially aids in the discussions and negotiations among the members of a negotiated rulemaking committee to develop a proposed rule;

   (5) "interest" means, with respect to an issue or matter, multiple parties which have a similar point of view or which are likely to be affected in a similar manner; [...]

   [...]

   §563. Determination of need for negotiated rulemaking committee

   (a) Determination of Need by the Agency.—An agency may establish a negotiated rulemaking committee to negotiate and develop a proposed rule, if the head of the agency determines that the use of the negotiated rulemaking procedure is in the public interest. In making such a determination, the head of the agency shall consider whether—

   (1) there is a need for a rule;

   (2) there are a limited number of identifiable interests that will be significantly affected by the rule;

   (3) there is a reasonable likelihood that a committee can be convened with a balanced representation of persons who—

   (A) can adequately represent the interests identified under paragraph (2); and

   (B) are willing to negotiate in good faith to reach a consensus on the proposed rule;

   (4) there is a reasonable likelihood that a committee will reach a consensus on the proposed rule within a fixed period of time; [...]

   [...]

   §566. Conduct of committee activity

   (a) Duties of Committee.—Each negotiated rulemaking committee established under this subchapter shall consider the matter proposed by the agency for consideration and shall attempt to reach a consensus concerning a proposed rule with respect to such matter and any other matter the committee determines is relevant to the proposed rule.

   (b) Representatives of Agency on Committee.—The person or persons representing the agency on a negotiated rulemaking committee shall participate in the deliberations and activities of the committee with the same rights and responsibilities as other members of the committee, and shall be authorized to fully represent the agency in the discussions and negotiations of the committee. [...]

   [...]

   (d) Duties of Facilitator.—A facilitator approved or selected by a negotiated rulemaking committee shall—

   (1) chair the meetings of the committee in an impartial manner;

   (2) impartially assist the members of the committee in conducting discussions and negotiations; and [...]

   • Applying Jefferson to a student senate (Source 1)

     Return to the Warm-Up. The senate's majority wants to skip its 24-hour notice rule because everyone present supports the motion. Using Source 1, should it?

     Result: No. Onslow's maxim says the rules "operated as a check and control on the actions of the majority" (Source 1, paragraph 1). The notice rule exists for members who are not present or who would want time to prepare an objection; the people in the room cannot speak for them. Even if the motion would pass anyway, following the rule today protects the next minority, which may be the current majority. The appropriate move is to post the motion and vote at the next meeting, or to use a written rule for emergencies if the senate has one.

   • Counting a markup vote (Source 2)

     An invented 9-member subcommittee marks up a bill. An amendment passes 5 to 4, and the motion to report the amended bill favorably passes 6 to 3. Are both majorities? Does party matter in the count?

     Result: Both are majorities: more than half of 9 is 4.5, and 5 and 6 are both more than 4.5. Party does not change the count, since "each member of the subcommittee, regardless of party affiliation, has one vote" (Source 2, paragraph 3). The 4 members who lost the amendment vote still had their say: each had five minutes to question each witness (paragraph 2), and "the views of both sides are studied in detail" before the vote (paragraph 3).

   • Is negotiated rulemaking appropriate? (Source 3)

     An invented federal agency must set launch times for commercial rafting companies and private boaters on a river in a national forest. Three interests are affected: the companies, the private boaters and the agency. Apply section 563(a)(1)-(4).

     Result: (1) There is a need for a rule: launches crowd the river. (2) The interests are "a limited number" and identifiable: three. (3) A balanced committee seems possible if the boaters choose representatives "willing to negotiate in good faith." (4) Consensus within a fixed period seems likely if the season's deadline is clear. The process fits. It would fit badly if one interest refused to bargain at all, since then criterion (3)(B) fails and the agency should use the usual notice-and-comment process.

   • Integration, not compromise (Source 4)

     In an invented service club, Maya wants a Saturday park cleanup. Theo wants a project that students who cannot do heavy outdoor work can join. A compromise would split the day: a short cleanup, then a short indoor project. What would Follett's integration look like?

     Result: Follett asks for a "composite idea" that is "better than what I had wanted alone" (Source 4, paragraph 2), not a split. The club could plan one cleanup with several kinds of work: a crew that collects litter, a team at a shaded table that sorts and weighs what is collected, and a mapping team that records problem spots for a report to the city. Maya gets her cleanup, Theo gets a project everyone can join, and the report is a new idea neither started with.

   Pair task: Pairs fill in a blank copy of Diagram 1 from memory, then check it against Sources 1-4 and add one quotation to each column.

4. Independent Practice15-20 minutes

   Students read Source 4. Mary Parker Follett (1868-1933) was a Boston social worker and political thinker who helped open public schools in the evenings as community centers, where neighbors met to discuss local problems. Her 1918 book argued that democracy depends on how small groups think together. Students then complete Activity 3 and, in groups of five, use Follett's process for ten minutes on an invented question: "Our school has one free afternoon in May. Plan how the whole grade should spend it." Each group hands in its group idea and a two-sentence evaluation: did any member "courteously" waive a view, and did the group create something no single member proposed?

   1The object of a committee meeting is first of all to create a common idea. I do not go to a committee meeting merely to give my own ideas. If that were all, I might write my fellow-members a letter. But neither do I go to learn other people’s ideas. If that were all, I might ask each to write me a letter. I go to a committee meeting in order that all together we may create a group idea, an idea which will be better than any one of our ideas alone, moreover which will be better than all of our ideas added together. For this group idea will not be produced by any process of addition, but by the interpenetration of us all. This subtle psychic process by which the resulting idea shapes itself is the process we want to study.

   [...]

   2We find in the end that it is not a question of my idea being supplemented by yours, but that there has been evolved a composite idea. But by the time we have reached this point we have become tremendously civilized people, for we have learned one of the most important lessons of life: we have learned to do that most wonderful thing, to say “I” representing a whole instead of “I” representing one of our separate selves. The course of action decided upon is what we all together want, and I see that it is better than what I had wanted alone. It is what I now want. We have all experienced this at committee meetings or conferences.

   [...]

   3I have described briefly the group process. Let us consider what is required of the individual in order that the group idea shall be produced. First and foremost each is to do his part. But just here we have to get rid of some rather antiquated notions. The individual is not to facilitate agreement by courteously (!) waiving his own point of view. That is just a way of shirking. Nor may I say, “Others are able to plan this better than I.” Such an attitude is the result either of laziness or of a misconception. There are probably many present at the conference who could make wiser plans than I alone, but that is not the point, we have come together each to give something. I must not subordinate myself, I must affirm myself and give my full positive value to that meeting.

   4And as the psychic coherence of the group can be obtained only by the full contribution of every member, so we see that a readiness to compromise must be no part of the individual’s attitude. Just so far as people think that the basis of working together is compromise or concession, just so far they do not understand the first principles of working together. [...]

   5But at the same time that we offer fully what we have to give, we must be eager for what all others have to give. If I ought not to go to my group feeling that I must give up my own ideas in order to accept the opinions of others, neither ought I to go to force my ideas upon others. [...]

5. Closure5-10 minutes

   Exit ticket: "Name one setting in your own life (school, work, a team, a family) and the deliberative process from today that fits it best. Give one reason based on the setting's size, stakes or purpose, and one way you would carry the process out well."

   Teacher note on the sources: Sources 1-3 are federal publications. Source 1 is Jefferson's text as the House prints it; Jefferson drew on British practice, and Onslow refers to the House of Commons. Source 2 dates from 2007, and House committee rules change with each Congress, so present it as a description of the process, not of current rules in every detail. Source 3 is current law. Source 4 is quoted exactly from the 1918 edition, including Follett's use of "his" for any person. Sources 1-4 come from different centuries; point out that the problems they address (majority power, getting buy-in, real collaboration) recur in every setting. Source 5 and every bill, rule and project in the activities are invented.

   Homework passage. Source 5 describes three decisions an invented youth council must make, each in a different setting.

   1The Harbor Point Youth Council has 15 members, elected by students at the city's three high schools. The city council asks it to make three decisions this spring.

   2Decision 1: a formal recommendation. The city's youth budget has $40,000 for one new project. Two projects have been proposed: lights for the basketball courts at Bayview Park, which would cost $28,000, and a teen study room at the main library, which would cost $36,000. The city council wants the Youth Council's official recommendation, adopted at a public meeting, and it will read the vote count and any written objections.

   3Decision 2: a dispute over the skate area. Neighbors on Dock Street complain about noise at the Bayview skate area late at night. Skaters want it to stay open until 10 p.m. A daycare center next door wants quiet during its nap time, from 1 to 3 p.m. The parks department, which runs the skate area, must write new hours and rules. It asks the Youth Council to bring the four groups together and draft rules that all of them can accept, which the department promises to use as the starting point for its own rule.

   4Decision 3: a planning team. Five council members must design the city's first Youth Summit, a one-day event in October. They have no fixed options yet: the theme, speakers and activities are all open. The team must hand in one plan that all five will present and defend together.

Differentiation Strategies

Assessment Guidance

1. Question 1 of 20 · Multiple Choice

   According to Source 1, what are "the only weapons by which the minority can defend themselves" against those in power?

   ATheir numbers, when they can win over enough members BPublic speeches that turn the voters against the majority CThe forms and rules of proceeding the House has adopted DAppeals to the Speaker to set aside an improper measure

2. Question 2 of 20 · Multiple Choice

   A club spends an hour arguing over whether to use a long rulebook or its own short rules, and never gets to its business. Which advice best reflects Source 1, paragraph 2?

   AChoose the long rulebook, since a longer set of rules is always the more rational one BPick one set of rules and follow it; having a rule matters more than which CDrop formal rules and let the chair decide each question as it arises DKeep debating until every member agrees which of the two sets of rules is the best

3. Question 3 of 20 · Multiple Choice

   In Onslow's maxim (Source 1, paragraph 1), what does a "neglect of, or departure from, the rules of proceeding" tend to do?

   AThrow power to the administration and the majority BGive the minority many more chances to delay any vote it fears CMake debate faster without changing who has power DWeaken the Speaker and strengthen ordinary Members

4. Question 4 of 20 · Multiple Choice

   Under Source 2, paragraph 1, when may minority party members of a committee call witnesses of their own?

   AWhenever any single minority member asks the chair for it BOnly when the committee chair agrees to it CWhen a majority of the minority members request it DOnly after the committee has already voted on the bill

5. Question 5 of 20 · Multiple Choice

   Source 2, paragraph 4 says "committee amendments are only proposals to change the bill as introduced." What does this mean for the deliberative process?

   AThe House as a whole still accepts or rejects them BThey take effect as soon as the committee votes COnly the chair may offer them during the markup DThey must first be approved by the subcommittee that held the hearing

6. Question 6 of 20 · Multiple Choice

   According to Source 2, paragraph 4, what happens if a committee tables a bill or fails to act on it?

   AThe bill goes to the House without a recommendation BThe bill is sent back to the subcommittee for markup CThe minority may call more witnesses to revive it DThe bill does not get reported to the House

7. Question 7 of 20 · Multiple Choice

   During a committee markup of a bill on electric bicycles on a city trail, a member moves an amendment to raise the entry fee at the city pool. Under Source 2, how should the chair rule?

   AIn order, because any member may offer an amendment BOut of order, because it is not germane to the bill CIn order, if a majority votes to consider it first DOut of order, because only the subcommittee may amend

8. Question 8 of 20 · Multiple Choice

   Under Source 3, section 562, what does "consensus" mean on a negotiated rulemaking committee if the committee does not agree on another definition?

   AAgreement of more than half of all the members present BUnanimous concurrence among the interests represented CApproval by the agency's own representative DA general but not unanimous concurrence of the members

9. Question 9 of 20 · Multiple Choice

   According to Source 3, section 566(d), what must the facilitator of a negotiated rulemaking committee do?

   ARepresent the agency's position in the negotiations BVote to break a tie when the interests disagree CChoose which interests may sit on the committee DChair the meetings in an impartial manner

10. Question 10 of 20 · Multiple Choice

    Under Source 3, section 566(b), how does the agency's representative take part in the committee?

    AWith the same rights and responsibilities as other members BAs an observer who may speak but not negotiate CAs the facilitator, since the agency created the committee DWith a veto over any consensus the others reach

11. Question 11 of 20 · Multiple Choice

    Which proposed federal rule is the poorest fit for negotiated rulemaking under Source 3, section 563(a)(2)?

    AA rule on sharing one dam's water among two farm districts and a town BA rule on safety equipment for every car sold in the United States CA rule on grazing times for four ranches sharing one federal range DA rule on cleanup duties shared by a port, a shipper and a city

12. Question 12 of 20 · Multiple Choice

    According to Follett (Source 4, paragraph 1), how is a committee's "group idea" produced?

    ABy a vote that chooses the most popular single idea BBy adding each member's separate idea together CBy the interpenetration of all the members' ideas DBy the chair choosing the best member's idea

13. Question 13 of 20 · Multiple Choice

    Why does Follett say a member should not "facilitate agreement by courteously (!) waiving his own point of view" (Source 4, paragraph 3)?

    ABecause the chair should be the only one to give up views BBecause polite members tend to slow down a committee CBecause giving up your view is shirking your part DBecause the majority must always defer to the minority

14. Question 14 of 20 · Multiple Choice

    Which statement best contrasts Jefferson (Source 1) with Follett (Source 4)?

    AJefferson rejects rules; Follett insists on strict rules BBoth say the majority should decide as quickly as possible CBoth say compromise is the basis of working together DJefferson relies on fixed rules; Follett on a new group idea

15. Question 15 of 20 · Short Answer

    A 40-member student senate must divide a $5,000 activities budget among the school's clubs, and its decision is final. Choose an appropriate deliberative process and describe how you would run it. Justify your choice and at least two of your rules with Sources 1 and 2.

    Show model answer

16. Question 16 of 20 · Short Answer

    An invented federal agency must schedule visitor permits for a popular cave in a national park. Three interests are affected: licensed tour companies, a caving club and the agency itself. Apply Source 3, section 563(a)(1)-(4) to decide whether negotiated rulemaking is appropriate.

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17. Question 17 of 20 · Short Answer

    Explain the difference between compromise and Follett's idea of integration. Give an example from a group you have been part of, real or imagined.

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18. Question 18 of 20 · Short Answer

    In an invented class markup, the chair let only members of her own bloc question the witnesses and then called the final vote before the clerk had read the last section of the bill. Which practices in Source 2 did she skip? Why does it matter, according to Source 1, even if her bloc would have won anyway?

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19. Question 19 of 20 · Short Answer

    Name one risk of deciding by consensus and explain how Source 3 tries to manage it.

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20. Question 20 of 20 · Short Answer

    Which of the three processes you used in Activities 1-3 did you find most appropriate for its setting? Explain, and name one setting where the same process would be the wrong choice.

    Show model answer

These standards connect to D2.Civ.9.9-12: prerequisites to review first, parallel standards at the same level, and next steps that build on it.

Standard text: National Council for the Social Studies (NCSS), The College, Career, and Civic Life (C3) Framework for Social Studies State Standards: Guidance for Enhancing the Rigor of K-12 Civics, Economics, Geography, and History (Silver Spring, MD: NCSS, 2013). NCSS was not involved in the production of this lesson and does not endorse it.