United States: Joe Andrew Addresses The American Chamber Of Commerce In Warsaw, Poland

Last Updated: June 11 2013
Article by Joe J. Andrew

Dentons Global Chair Joe Andrew delivered opening remarks to a recent Warsaw gathering of more than 70 representatives of leading businesses and government agencies in Poland.

Contrasting the role of outside stakeholders in the American and Polish legislative and rulemaking systems, Andrew’s presentation focused on what he called “the four ‘Ts’” for increasing meaningful stakeholder participation in government: timing, transparency, trust and thought leadership.

The second in a three-part series sponsored by the American Chamber of Commerce in Poland called, “US standards in law making – why it makes sense to talk”, the event featured a panel discussion moderated by Dentons Warsaw partner Igor Ostrowski and including Adam Jasser, Secretary of State in the Chancellery of the Prime Minister and Chair of the Permanent Committee of the Council of Ministers; Mariusz Haładyj, Deputy Minister of Economy, Krzysztof Kwiatkowski, former Minister of Justice and current Member of Parliament; Mirosław Barszcz, former Minister and Adviser to the Minister of Justice. Panelists concentrated on the fourth T: “thought leadership” and emphasized the need of state agencies to cooperate with other stakeholders which possess the relevant expertise throughout the legislative process, not just during a limited public consultation window. In order for this to occur, all stakeholders need to ensure that the dialogue is built on high ethical standards, ensuring that trust and transparency are the founding blocks of the process. Transfer of the relevant know-how from the U.S to Poland is essential in this respect.

The event took place Tuesday, May 21, 2013.

***

I want to thank all of you for coming this morning, and especially express my thanks to American Chamber of Commerce in Poland for sponsoring this very well attended event, and my thanks to the members of this distinguished panel, particularly the current Ministers.

Thank you also for that very warm introduction. There are two facts hidden in that introduction that are relevant to our conversation today. First, I served as the National Chairman of the Democratic Party in the last two years of President Bill Clinton’s term, which means that I was there during two Constitutional crises—first the impeachment of President Clinton and second the contested recount in Florida during Vice President Al Gore’s campaign for President.

As one of my more conservative partners told me, “if you can defend Bill Clinton during the impeachment and promote Al Gore during the recount, then you are qualified to either run a mental institution or a global law firm.”

I responded, “And what is the difference between those two jobs?”

But seriously, when people talk about how the United States’ government is becoming dysfunctional because partisanship has reached such a point that there is complete gridlock, many people point to those two events—the impeachment of the President and the 2000 Recount. Thus, before I give any advice on how your government should work, let me note that we in the US are fair from perfect and far from efficient or effective in all we do.

The second fact hidden in that introduction was that I am from northern Indiana. Standing here in Warsaw, Poland let me give you a sense of where that is. First, imagine where Chicago is. Chicago is the largest Polish city in the world not in Poland. Then move a bit more east to South Bend where Notre Dame, one of the world’s great Catholic Universities, where there are more Polish Professors than almost any other school in the world outside of Poland. Just a half an hour away is Warsaw, Indiana named after Warsaw, Poland. In both Warsaw and in South Bend we celebrate Saint Dingus day on the Monday after Easter, because of the large Polish populations.

But Warsaw, Indiana, where I still today own a lake cottage on Lake Tippecanoe, is in Kosciuszko County, named after Tadeusz Kosciuszko. So, from a very early age, I was aware of Kosciuszko’s role as a patriot in America’s Revolutionary War, just like General Pulaski, the founder of the American Calvary. It wasn’t until I was much older that I discovered that after our War for Independence, Kosciuszko went on to become a revered patriot here in Poland for his efforts to defend the country against Tsarist Russia.

As you know better than I, Kosciuszko was part of the reform movement that influenced the Great Sejm, which met from 1788 to 1792 and produced the first written constitution in modern Europe. Kosciuszko was not a member of the parliament, but he did seek to influence it. For example, he attempted to have the parliament adopt a military model similar to the American tradition of local militias, but the Grand Sejm opted for a standing army instead.

So there is a long tradition of people who have visited America and coming back to Poland and telling people how to do things. Fortunately, for reasons I will come back to, the smart people of Poland do not always listen to such advice. But if I can make up a new Polish proverb here today, May we all benefit, like General Kosciuszko did, from positions we disagree with.

The topics we are discussing today about governance, influence and the exchange of ideas between the United States and Poland is a tradition that is at least 225 years old.

I know today’s discussion will focus mainly on the contrasts between how America and other political systems accommodate the input of outside stakeholders in the legislative and rulemaking process and how these matters are handled in Poland. But I thought it might be good to start by pointing out what our systems have in common.

On the face of it, the impetus for laws and regulations in the US and Poland usually lie within the government. After all, it is the rare private sector business or industry that seeks more regulations and government interference.

In both countries, stakeholders are allowed to comment in some fashion on regulatory proposals.

In both countries, there is ongoing concern that representatives of interests outside the government may exert undue influence on policymakers.

And, finally, there is agreement that, for good or ill, the government does have the power to regulate commerce and the authority to establish the systems by which those regulations are enforced.

You might ask, given these commonalities, why are we even meeting today? In my case, perhaps we can all draw inspiration from a real Polish proverb that says that, “a guest sees more in an hour than a host sees in a year.”

So as your guest, let me note that the devil is truly in the details. Those details are all about timing, trust, transparency, and thought leadership.

Yes, both of our systems provide for comment periods on proposed rules and laws, but in the American system, consultations with stakeholders are seen as a developmental step; they come in the early stages of the process as policies are being formulated. So timing is an issue.

And yes, regulators and citizens in both countries worry that contact between policymakers and stakeholder advocates can lead to undue influence for the stakeholders at the expense of the public good. But in the American system, there are regulations on both the government officials and the stakeholder representatives that discourage inappropriate relationships while still encouraging the dialogue necessary to make laws and rules. So transparency and trust are issues.

Finally, while both of our countries recognize the primacy of government in creating laws and regulations, in the US, no one would ever claim that policymakers are the only ones with the expertise and the experience to decide what those policies should be. So thought leadership is also an issue.

So I would like to spend a little time focusing on these “four Ts”: timing, transparency, trust and thought leadership – and the role they can and should play in policy making.

Let’s start with timing. It’s my understanding that, in Poland, input from outside interests comes at the end of the legislative and rulemaking processes. This understandably causes tensions between stakeholders and government officials. The policymakers put a considerable amount of time into developing the policies so criticisms that come at the end of their work can be read as dismissive of all their prior consideration. By the same token, given the policymakers’ investment of effort, outside stakeholders can be forgiven for wondering if any suggested modifications so late in the process will be truly given their due.

In the United States, stakeholder consultation comes much earlier and in many forms. Let me note examples of how outside stakeholders are able to provide comments during the rulemaking process.

Early on, all proposed rules are published in the US Federal Register and assigned a months-long comment period during which any citizen, organization, business or interest group can submit endorsements or criticisms. Policymakers consider these suggestions, consider the sources, accept some and reject others before finalizing the regulations.

Agencies may also host public comment sessions where concerned parties can express their opinions in person.

In addition, many agencies have a variety of advisory groups, consisting of representatives from businesses, trade associations and citizens groups who may suggest new regulations and serve as a sounding board for proposed rules.

There are even instances in which his department “open sourced” a policy. Instead of authoring a first draft, the agency asked stakeholders and the public for ideas about how to accelerate the commercialization of research at universities and federal laboratories. After receiving hundreds of comments, they pulled together some recommendations and submitted them to one of the agency’s advisory councils for review. The advisory group then shared the recommendations with the White House and Congress and they served as basis for new procedures.

In Congress, it is not unusual at all for trade associations, labor unions, advocacy groups and not for profit organizations to convince legislators to introduce or sponsor legislation. After the legislation is introduced, legislative committees and subcommittees hold hearings featuring testimony from stakeholder representatives. The subcommittees and committees consider amendments to the draft bill. After a committee approves the legislation, advocates and critics of the legislation contact individual legislators, often working with constituents of the legislators to make the “home town” case for or against the bill. A bill can be amended in the full House or Senate and once it passes one chamber, it goes to the other and the process starts all over again. So there is ample opportunity public commentary on the proposal and there are many points in the process for modifying the proposal.

My goal is not to tell you that this system is perfect. It is merely to show how there are myriad opportunities for rule makers and legislators to accept input long before a law or policy is finalized.

Second, transparency. The type of exchange I just described between citizens, government officials and stakeholders works only if there is overall confidence in the system. As I referenced earlier, there is a noticeable portion of the American public that fears that the access to legislators and rule makers that I just described DOES give undue influence to special interests at the expense of the public good. But these fears are mitigated by restrictions on legislators and regulations of advocates that help maintain transparency and trust in the system.

If I had to describe the overall goals of those restrictions and regulations it would be this: to encourage the maximum amount of contact between policymakers and individual citizens and advocates, which is a constitutionally protected right in the United States, while discouraging behind the scenes deals and personal profiteering. Legislators and officials are prohibited from receiving gifts and meals for the most part. Lobbyists are required to publicly file information regarding whom they lobby for and how much their clients pay them. Campaign finance laws require the reporting of contributions.

Now, all of this is not to say that the possibilities of quid pro quo relationships are completely eliminated. Far from it. But it does allow the press, the public and stakeholders to see who is doing what and why. Voters can then decide for themselves whether they are comfortable with the records of administration officials or their individual legislators.

In some cases, such transparency confirms the public trust; in others it might undermine it. But in all cases, the system is designed to encourage consultation from everyone while discouraging undue influence. In the American system, encouraging more contact from all quarters is seen as the antidote to the influence that limited, private contact might bring.

Third, trust. The question then becomes how can you build trust between stakeholders and policymakers here in Poland? Many of you in this room have been working on these issues for a long time and I would not pretend for a minute that I know all that you do. But the late Stephen Covey, a business professor who is best known for writing the book The 7 Habits of Highly Effective People, observed that trust involves confidence in character and confidence in capability. Character and Confidence. He wrote that character involves aspects of integrity, motive and intent. Capability involves skills, track records and results. The American system tries to preserve trust by, at least, restraining the ability of legislators and government officials to put personal interests ahead of the public interest. And its transparency allows observers to measure the track record of policymakers against the efforts of those who try to influence them.

As it relates to specific policies, trust can only be built over time and in an environment where incremental steps can be used to prove that all sides, the private sector and the government regulators and legislators are worthy of one another’s trust.

Which brings us to thought leadership.

The idea that only one sector of either of our economies – the private sector, the government sector, the NGO sector – has a monopoly on good ideas should, by now, be discredited. If we are truly interested in making economies and regulatory regimes more efficient, we should be seeking the best practices from around the world and from all sectors of the economy.

The European Commission regularly accepts white papers and green papers from third parties before it proposes regulations. In the United States, we have a large number of independent policy institutes and think tanks, some ideologically driven, devoted solely to promoting specific policies in the public marketplace and with policy makers. Trade associations, universities, research institutes, business consultants and, yes, even law firms, all publish policy analyses and proposals. In fact, at Dentons, one of our goals is to increase our level of thought leadership. Our lawyers can use their immense expertise in the industry sectors in which they specialize to inform policies with real world insights. On many issues, these could be the starting points for policy development.

The key is to foster an environment of openness: openness to ideas from all sources; openness to scrutiny from the public, the press and other stakeholders; openness to engagement between government officials, their citizens and the private sector. The goal of the legislature and the government in a democratic society ought to be to balance all the interests present in that society, to seek the best ideas wherever they may come from and to inform policies with real world expertise and experience over ideological theory.

That is why these four concepts are key to any discussion about the interaction of government with those that it governs. Timing, trust, transparency and thought leadership outline the key issues that must be wrestled with, argued about, and understood by all of those involved.

Let me come full circle. When the Grand Sejm established a standing army instead of Kosciuszko’s proposed militia system, it was, in fact, adopting the military model that General George Washington preferred. During the American Revolution, Washington had seen the weaknesses of temporary and ill-trained militias against the professional army of an imperial power. Washington came to realize that the Continental Army, a permanent fighting force, trained by skilled professionals like Kosciuszko, tempered by repeated battle and immune to the vagaries of limited enrollment, was the key to victory. Washington disagreed with Kosciuszko, and as the first American felt compelled to let Poland know his views, just like I have done today.

Kosciuszko had advocated to his own government, and his proposal had been rejected. Nevertheless, he benefitted from the Grand Sejm’s wisdom. He was made a general in the new army.

Thus, as my new Polish proverb says, whether you agree with me today or not, may we all benefit from positions we disagree with. May we all benefit from our continued dialogue on these important issues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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