Summary: The array of partnerships supposedly designed to implement environmental laws are merely an effort by Government at every level. to find ways to avoid enforcing statutes
This paper covers the following issues:
- Three big myths about "Gridlock"
- Introduction to the age old problem of "consensus" in deliberative bodies.
- Review of the origin and implications of the notion that Government in Washington cannot simply "ram things down people's throats."
- "Win-Win's origin in 1950's game theory and 60's pop psychology - more on the Neo-liberal vs. Saul Alinsky world views.
The array of partnerships: province teams, inter-state regional councils, watershed councils, and the entire multi-billion dollar planning architecture, supposedly designed to implement environmental laws through better communication, is merely an effort by Government at every level to find ways to avoid enforcing statutes which impose strict, yet allegedly unpopular, environmental safeguards over our land, water and air - as St. Augustine put it, "Give me chastity and continency - but not yet!"
The underlying problems these various partnerships seek to address: litigation, conflict, and gridlock, are not caused by communication breakdowns. They are symptoms of agencies not following clear directives and laws, and allowing the Legislative branch to improperly meddle in the Executive branch of government. People often refer to the conflict over our national forests as "gridlock", and this traffic metaphor is apt because the best examples are found in the capitals of third world countries - and the usual cause - no one obeys the traffic laws.
The "gridlock" in our forests today is caused by decades of willful lack of enforcement of laws in our national forests that has forced the courts to enjoin many of the routine operations of our land management agencies. This is akin to what might have occurred if Eisenhower and subsequent Presidents, when faced with unambiguous court decisions to desegregate the schools in Little Rock and elsewhere, had stalled, prevaricated and dragged their feet instead of sending armed troops in to enforce the laws literally over the bodies of local Governors, Mayors and Sheriffs. That path, which earlier Presidents did not take, would probably have led to decades of lawsuits, creating confusion, turmoil, conflict and gridlock in the South's education systems.
But Eisenhower with school desegregation and later presidents with voter registration and public accommodation were faithful in their responsibility to uphold the constitution and the laws of the land. They did not inflame the local opposition and encourage resistance to the laws. You did not hear Eisenhower whine that if he stood up to the segregationists it would provoke a backlash that would repeal the laws that protect blacks, or that forcing people to obey laws was a discredited win-lose philosophy, or that local people know best.
The pander-path of persistent non-enforcement of our environmental laws, this administration, and several before have chosen, requires a rhetorical edifice to justify it while simultaneously creating an appearance that it discharges its responsibilities. The following myths are the main building blocks of that edifice. They have been accepted by the public and even the environmental community which ought to know better.
Three Myths About "Gridlock"
MYTH 1. The federal government should not impose its will from Washington upon the unwilling, sometimes expressed as "We can no longer simply ram laws down people throats."
FACT: The rallying cry that it is normal for rural people to object to Washington bureaucracies whose dictates disrupt their way of life and local economies, and that the federal government must be responsive to those cries, is nothing more than a modern reworking of North Carolina Senator John Calhoun's doctrine of "nullification", which he created in the 1840's to organize the southern states to resist the abolitionist movement.
When you hear the cry of "you can't ram things down people's throats" from Western timber, Louisiana Shrimpers or New Mexico grazers be assured that the specific federal law which is opposed cannot be attacked on its merits. Generations of political demagogues have learned that you can't get citizens in the 1990's to rise up and defend the right of distant corporations to ruin their local rivers and water supplies any more than you could get citizens in the 1850's to defend the flogging and branding of slaves but you can get people to passionately defend these policies if you conceal them within the soothing bromides of states rights, local control, and a free man's duty to resist distant tyrannies.
MYTH 2. A "win-win" process is always superior to the now hopelessly outmoded, unenlightened and thoroughly discredited win-lose approach, which has proved contentious, divisive and unworkable.
FACT: The "Win-win" strategy is a product of 1950's game theory research which found that in some game scenarios it produced much better outcomes for all parties than "win-lose". However, it is not appropriate for all games, particularly some where the players do not have shared interests. For example, if a swimmer in the ocean met a shark, to use "win-win" to perhaps compromise on say, an arm or half a leg, might not be a viable outcome for the swimmer. In dealing with corporate sharks we embrace "win-win" at out peril.
In modern times a good example of the effectiveness of win-lose was in the early 40's when Truman, then Chairman of the Senate committee overseeing government war contracts, found a few defense contractors had deliberately overcharged us about 100 billion in todays dollars. Truman simply forced them, with very blunt threats, to give all the money back. Truman knew what every farmer knows: to get a pig out of a trough you use a 2x4. You don't invite pigs into a consensus process, and you don't tiptoe around barnyards in three piece suits and wingtip shoes with the media setting up photo opp's for the piglets.
MYTH 3. Consensus based decision making allows new and creative approaches to arise from local groups as it empowers minority views, and frees people from the mechanical operations of Roberts Rules which allow simple voting majorities to impose their will on hapless minorities. Consensus decision making is modern, creative, flexible, and forward looking, while "Roberts Rules" based decision making is tedious, time consuming, bureaucratic, cumbersome, old fashioned, authoritarian and perhaps even paternalistic.
FACT: Consensus based deliberation processes are wonderful tools in the appropriate context. When people need to come together to do something for which there is common agreement a formal decision process is often awkward and unnecessary. I am involved with consensus processes all the time and find some very productive. But consensus based processes are highly inappropriate in deliberative assemblies expected to persist in time, where a body of law and regulation about the issues on the table already exists, and some of the parties have personal financial interests. For deliberations in "civilized" societies, consensus decision making has been found wanting for over 1500 years as tyrants and despots can use it to silence the rights of minorities. Why would environmentalists ever agree to replace proscriptive enforceable federal regulations with a deliberative process in which the regulatee-seat holders can block group decisions adverse to their financial interests by merely withholding agreement.
Consensus Decision Making In Deliberative Bodies Contrasted With Roberts Rules Of Order
A Consensus meeting is basically one which does not use "Roberts Rules of Order" as its formal procedure. While perhaps useful in situations where people have unlimited time to talk and in which all participants share values, for deliberative bodies of any kind, consensus can easily be used to abridge the rights of minorities. In the history of deliberative assemblies no approach is considered as dangerous and problem prone as the consensus style. The experience of observing millions of meetings over thousands of years taught parliamentarians about the pitfalls you can expect when assemblies deliberate without formal written procedures which explicitly provide for motions, voting, and the like.
Roberts Rules of Order were designed specifically and primarily to protect the voice and rights of minorities by depersonalizing the conflicts that arise in the meeting process. Parliamentarians noted that when conflict is allowed to become personal, minority voices tend to get silenced. The US Senate rules, for example, are an incredibly complex system specifically designed to eliminate direct communication between the members on the floor. Under Roberts Rules a "No" vote should never be any more than simple opposition to a specific motion before the body, and can be cast without explaining the reason for or the strength of, the dissenting view. On the other hand, when there is a strong minority or dissenting opinion in a consensus meeting, it will often be required to be expressed in the form of opposition to the leader and/or the collective will of the body. This is a fundamental difference because it can personalize conflict.
Consensus tends to disempower and marginalize the weak, inarticulate and less aggressive members in a meeting. That is why it is best used where there are family or "tribal" norms to protect the weak and vulnerable. Absent these protections, consensus will greatly increase the personal power of: the jealous, those with hidden agendas and grudges, and the unbalanced and misfits we always seem to have with us. Here is what parliamentarians say will happen absent a strong parliamentary procedure like Roberts:
- Leaders of meetings will try to suppress the views of minorities.
- A "strong" minority cannot force the proceeding to "deliberate".
- Conflicts of interest will be concealed and people will vote on issues upon which they have a direct financial interest.
- People will try to pass motions which conflict with higher laws or the rules of their own body.
Even today within deliberative bodies consensus type motions and chair's rulings to adopt by consensus or acclamation; or suspend the rules of voting are considered to be among the most dangerous, and their use is hedged about with a number of special safeguards which do not apply to other motions.
Roberts Rules, a process, developed specifically to protect the rights of minorities, creates a web of carefully designed procedures to insure that:
- Members of meetings can formally challenge and deny the ability of a person to vote on matters on which they have a financial interest.
- Members focus primarily on their relation to the issue or motion before them, not the other people in the meeting.
- A vote on a motion is narrowly addressed to the immediate matter of the issue before the body.
- Meeting minutes accurately record the body's decisions.
- Meetings do not pass motions which conflict with legally passed laws of governmental bodies that have jurisdiction over them.
- Motions which address unfair representation or conflicts of interest, unfair proceedings and minority abridging procedures will get precedence.
Most criticisms of partnerships and roundtables are predictable outcomes of meetings that do not establish a "Roberts" basis. Conflict over the administration of our Federal Environmental laws will not be eliminated by local folks sitting down in consensus based partnerships to decide the disposition of local federal resources because undue influence of the strong over the weak in federal environmental policy is what got us into trouble in the first place.
Finally, control over federal resources must never be delegated in any way to local communities because conflict of interest is endemic. The entire existing structure of local deliberative bodies that bear on land at the county and regional level have conflicts of interest woven into their warp and woof. We have seen with long established rural deliberative processes like economic development commissions, planning bodies, soil conservation districts, and grazing boards, that not only are personal pecuniary interests allowed into the deliberations, they are often the basis upon which these bodies were established in the first place. Combine this with the reluctance of most rural newspapers to muckrake and for local people to live and let live, and you have a recipe for a level of conflict of interest incomprehensible to urban people. Paradoxically, it is just this dense intersection and blurring of personal, community, and business interests that give rural communities their stability and sense of community which appears so attractive to urban dwellers.
Environmental Consensus groups as envisioned by the congress today would transfer responsibility for federal enforcement of our laws to out-gunned, unfunded environmentalists who, while they may reflect the prevailing majority sentiment of the country, will be a weak minority in any community in which these consensus groups are established. To allow any form of local consensus group to decide anything about the disposition of local federal assets, when consensus has proven that it cannot protect "strong" minorities let alone weak ones, will essentially create a federally sponsored "free store" for public assets.
If the Federal Government ever releases its grip on any public land, even for an instant, it will get a hard lesson on the great unwritten rule of the west that every good old boy imbibed with his mother's milk: "The tough guys always get the ground".
Continued in Part 2
©1997 Jim Britell
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May not be reproduced without permission.