Policy laundering

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Policy laundering is the disguising of the origins of political decisions, laws, or international treaties.[1] The term is based on the similar money laundering.

Hiding responsibility for a policy or decision[edit]

One common method for policy laundering is the use of international treaties which are formulated in secrecy. Afterwards it is not possible to find out who opted for which part of the treaty. Each person can claim that it was not them who demanded a certain paragraph but that they had to agree to the overall "compromise".

Examples that could be considered as "policy laundering" are the WTO Treaties,[citation needed] WIPO,[2][3] the Anti-Counterfeiting Trade Agreement (ACTA),[4] or the failed Treaty establishing a Constitution for Europe.[citation needed]

Harmonization is the process through which a common set of policies are established across jurisdictions to remove irregularities. Regulations can change in any direction, however: regulations may be pushed to the lowest common denominator; but may equally benefit from the 'California effect', where one regulator pushes for the highest standards, setting models for others to follow. Harmonization requires further interrogation, however. In their review of global business regulation, Braithwaite and Drahos find that some countries (notably the U.S. and the UK) push for certain regulatory standards in international bodies and then bring those regulations home under the requirement of harmonization and the guise of multilateralism; this is what we refer to as policy laundering.

—Ian Hosein, 2004[5]

Hiding the real objective of a policy[edit]

One manifestation of policy laundering is claiming a different underlying objective for a policy than is actually the case. The usual reason for politicians following this approach is that the real objective is unpopular with the public. The usual process is to conflate the issue being addressed with an unrelated matter of great public concern. The intervention pursued is presented as addressing an issue of great public concern rather than the underlying objective.

Circumventing the regular approval process[edit]

Yet another manifestation of policy laundering is to implement legal policy which a subset of legislators desire but would normally not be able to obtain approval through regular means.

ACTA is legislation laundering on an international level of what would be very difficult to get through most Parliaments.

—Stavros Lambrinidis, Member of European Parliament, S and D, Greece[6]

An example of policy laundering where law was enacted and enforced despite both state and federal courts declaring the law unconstitutional is the Missouri v. Holland case. At that time, Congress attempted to protect migratory birds by statutory law.[7] However, both state and federal courts declared that law unconstitutional.[8] Not to be denied, authorized parties subsequently negotiated and ratified a treaty with Canada to achieve the same purpose.[9] Once the treaty was in place, Congress then passed the Migratory Bird Treaty Act of 1918 to enforce the treaty.[10] In Missouri v. Holland, the United States Supreme Court upheld that the new law was constitutional in order to support the treaty.

It has been suggested[11][12][13][by whom?] that policy laundering has become common political practice in areas related to terrorism and the erosion of civil liberties. In the air-travel industry, an example of policy laundering might be the requirement for passengers to show photographic identification. This was presented as addressing security concerns, but from the airline's perspective the measure had the important effect of ending unauthorised resale by passengers of unused tickets.[14]

References[edit]

  1. ^ Hosein Ian, sources of laws: Policy dynamics in a digital and terrorized world, The Information society, 2004, vol. 20, no 3, pp. 187-199]
  2. ^ Herman, Bill D. & Oscar H. Gandy, Jr. (2008). "Catch 1201: A Legislative History and Content Analysis of the DMCA Exemption Proceedings". Cardozo Arts & Entertainment Law Journal. 
  3. ^ Yu, Peter K., The Political Economy of Data Protection, Chicago-Kent Law Review, Vol. 83, 2008
  4. ^ Geist, Michael (9 June 2008). "Government Should Lift Veil on ACTA Secrecy". 
  5. ^ Hosein, Ian, 2004, "International Relations Theories and the Regulation of International Dataflows: Policy Laundering and other International Policy Dynamics"
  6. ^ Stavros Lambrinidis, Vice President of European Parliament (2009), S and D, Greece, "Stop Acta"
  7. ^ An Act Making Appropriations for the Department of Agriculture for the Fiscal Year Ending June 30, 1914, Act of March 4, 1913, 38 Stat. 828, c. 145, at page 847.
  8. ^ United States v. Shauver, 214 Fed. 154 (E.D. Ark. 1914), United States v. McCullagh, 221 Fed. 288 (D.Kan. 1915), State v. Sawyer, 94 A. 886 (Maine 1915), and State v. McCullagh, 153 P. 557 (Kan. 557).
  9. ^ Convention for the Protection of Migratory Birds of August 16, 1916, T.S. No. 628, 39 Stat. 1702.
  10. ^ Migratory Bird Treaty Act, Act of July 3, 1918, c. 128, 40 Stat. 755. Codified at 18 U.S.C.§703.
  11. ^ The Policy Laundering Project
  12. ^ ACLU's Stop Policy Laundering Project
  13. ^ Barry Steinhardt (ACLU) "The Problem of Policy Laundering"
  14. ^ Pierre Lemieux, "Now It Seems We Need a Passport Inside Canada"

See also[edit]

External links[edit]