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This chapter covers the process of writing policy. It will
explain how to decide what type of proposal you want to offer
and how to negotiate changes as you go through the process
of getting it adopted.
Most of the important things you need to know about the philosophy
of policy writing have to do with negotiating changes. They
are covered below. But there are two important things you
need to know at the start. First, every draft of a policy
matters, even when it is clear adoption is years away.
The first draft to be introduced is likely to be the version
of the proposal the board will work with, perhaps until adoption.
It will be difficult for you to change something to your own
advantage in that draft. It may even be difficult to improve
drafts once the board or opponents have seen it, even if it
hasn't been formally introduced. It is important to make the
first draft introduced as strong as you can. It is hard to
undo mistakes.
In a campaign that goes several years or sessions, you can
try to make a "fresh start" with a completely new draft. Even
if you do, board members and opponents are likely to remember
features of the old one you'd like to forget. They may resurrect
these features with the tough-to-answer question "if it was
OK last year, what's wrong with it now."
Second, words matter (although not always). Sometimes, the
use of particular words can be very important legally, even
though the difference between two words might not seem important.
Sometimes, court decisions or other laws create a kind of
tradition, giving a word a special legal meaning.
Every stage of writing needs to be taken seriously, and that
at every stage, you need a core group of writing advisors
who can tell you about the legal and political consequences
of any part of the proposal or any suggested change. Since
this group of advisors may need to act quickly (see below)
it should be small and its members should be easy to contact.
The advisory group can be the core decision-making group,
but it can also be a special group of advisors to the core
decision makers.
Style isn't a problem with a "drop in" proposal (a proposal
to "drop" the words "sexual orientation" or "gender identity/expression"
into an existing policy) or a "duplicate free standing" civil
rights proposal (a proposal to create a new, separate policy
on sexual orientation and/or gender identity which is identical
to another policy on different kinds of discrimination). You'll
be using somebody else's. With proposals you actually write,
it's a major concern. Most civil rights policies and domestic
partnerships (like most other laws and policies) have become
needlessly difficult to read. They choose words that people
don't use in everyday life, write sentences that go on too
long, and repeat things two and three times. For the benefit
for the average reader, try to be as straight foreword as
you can be.
On the other hand, getting rid of language to which courts
and enforcement agencies have give a special significance
is dangerous. You not only don't get the advantage of a developed
meaning, you may well suggest to people that you used different
words because you meant something different. Moreover, you
need to make sure that you don't use words to which courts
and agencies have given special meanings you don't intend.
The best solution may be to build a dialogue into your writing
process. Make sure you have one writer or reviewer who knows
about special language and is familiar with the traditions
of policy writing (your lawyer would be the best candidate).
Be sure to have one writer or reviewer who writes well and
is committed to simplicity.
Getting suggestions from people who are familiar with civil
rights policies and who share your ultimate goal will almost
always make your proposal stronger. Talk to people who work
with other kinds of civil rights policies. Contact lawyers
at local, state and national civil rights groups, especially
LGBT rights groups, and ask them to look over your proposal
and give you comments. If you can, try to get input from lawyers
and others who enforce policies or represent people with claims
(like members of human rights or personnel departments and
union representatives). Their practical perspective will be
invaluable.
You can build support for your proposal by circulating it
in the LGBT community. If you can, schedule a public meeting
or two at which you explain the proposal and ask for public
comment.
If most of the members of the board and most of their constituents
take it for granted that the policy is a good idea, you may
not have to do a lot of negotiating. Most of the time you
will.
The most difficult part of negotiating is deciding when to
compromise on what things and when to hold firm. There aren't
any hard and fast rules. The process is likely to be more
satisfactory if you analyze each round of negotiations as
a balancing process. For each alteration you negotiate over,
you should decide how much you think you will really gain
and how much you think you will really lose by making a change.
How much you gain is a function of two things. First, what
support will making the change really get you, and how much
do you need that support to get the policy passed. Second,
how much sooner will you get the policy if you make the change
(this second factor is based on the assumption that if you
wait and work long enough, you'll be able to get almost any
policy passed; give on something if you think it could never
be adopted).
How much you lose depends on the likely legal effect of the
change and its impact -- how many fewer people will be covered,
how much harder will it be to show discrimination or qualify
for a benefit. It also depends on the political impact of
the change.
Part of assessing the time factor is estimating how long you
might have to live with a change that does do some real harm
if you accept it. Some policies, once passed, are very difficult
to change; passing the policy establishes a kind of plateau.
With other policies, acceptance of the idea is the tough battle,
and later improvements are sometimes easy.
Figuring out the legal and political impact of a change, predicting
its effects on future cases, the community, calculating how
the change will affect your support and estimating when the
policy could be passed without the change is tough under the
most quiet, deliberative conditions. But many of your most
important negotiations won't happen under those circumstances.
They'll happen instead in heated moments shortly before a
vote, after you've been working frantically on the campaign
for months or years. In those situations, two very common
reactions tend to make it even harder to balance all the considerations.
The first reaction is the sometimes-overwhelming desire to
get something to show for all your months or years of work.
When a change looks like it could make the difference, people
sometimes agree when they should not. The second reaction
is the common problem of, as negotiations drag on and you
get worn out, blowing things out of proportion and treating
them as if they were more important than they are.
Whatever person or small group makes your decisions in negotiations
will need a legal advisor and a political advisor available
to make the judgments you need to balance gain and loss. Those
judgments are less likely to be skewed by the heat of the
moment if one or both of those advisors are not actually doing
the negotiating, and are able to bring an outside perspective.
If, for example, your regular legal advisor is the prime negotiator,
try to have another advisor on call during the process.
Don't actually make a change, especially an important change,
to gain someone's support without an ironclad commitment.
If you can get an endorsement card signed, do it. Board members
and politicians usually won't sign endorsement cards. But
getting a board member's promise made to or in the presence
of someone whose support the member needs, who is willing
to go public if the member tries to back out, is just as good.
This is a place to use politicians or other important supporters.
Don't waste your time negotiating with die-hards. Sometimes,
die-hard opponents will try to negotiate with you, usually
with Board members or important moderate forces present. Their
aim is to raise objections, and get the moderates to pressure
you to compromise. However, they will almost never support
the bill after changes are made. If you can, try to convince
the board members or moderates to "smoke out" the other side
by testing their commitment to compromise. If you can't, insist
on an ironclad commitment the first time you agree to a change
before you make it. That will usually end the process.
Don't say things to people you are negotiating with that have
nothing to do with the process. Don't abuse people, call them
names, or get emotional. Don't make threats. Don't talk about
your strategy or plans. And while a very rare strategic loss
of patience can be useful, it should be strategic.
>> Next: 24. Making it Last
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