This is Part 2 of our mini-series on regulation, which aims to help nonprofits to have a clear understanding of where power lies in government. Many believe that the policy process ends with legislation, but this is not the case. The regulatory component and the design phases of government tools greatly impact whether nonprofits achieve their mission. This is why it is critical to be clear on how decision-making occurs at each level of government when you are designing a nonprofit advocacy campaign to influence the regulatory process.

In this article, we will focus on:

• Identifying good and effective regulation; and
• Influencing the regulatory process.

Identifying Good and Effective Regulation

Good regulation aims to be neutral in its application. However, its development does require that nonprofits assess whether the tools and systems in rules will positively or negatively impact a particular community; create access disparities; or result in discrimination, both intended and unintended.  With that said, good regulation works separately from the political process and is:

• Supported by legislative authority,
• Utilizes appropriate processes and systems of accountability;
• Is fair, accessible, and open;
• Is developed and implemented by regulators that have sufficient expertise in the subject matter;
• Is implemented in a timely and effective manner;
• Solves problems individuals cannot solve on their own because they require collective action, the mass mobilization of resources, and large-scale logistical coordination;
• Contains language that is not overly prescriptive nor overly broad; and
• Allows for adaptation to changing circumstances without compromising the original intent of the law.

When these basic components of good regulation are either missing or unclear, it is time to pay attention to what is not included in the regulation and the potential implementation challenges that can result.

Potential Implementation Challenges

You should consider which topics the statute is silent on that would fall onto administrators to interpret internally and outside of the regulatory process. This includes, but is not limited to:

• Performance standards and objectives,
• Outcomes, and
• Implementation approach.

Unclear, obfuscated, complex, or unsupported regulation can lead to many implementation challenges. This includes confusing and inefficient requirements from the government that consume an endless amount of staff time in your nonprofit if not addressed adequately in the statute. Specifically, stakeholders and interest groups can lead administrators away from the original intent of the law with limited opportunities for correction once the regulations are adopted. Furthermore, once regulations are promulgated, the qualifying parameters delineated in numerous implementation mechanisms that fall to the discretion of regulators (e.g., program protocols, best practices guidelines, executive orders, declarations, and service delivery tools like grants, loans, and loan guarantees; government corporations, contracting and purchase of service contracting, tax incentives, and exemptions,) can negatively affect how nonprofits carry out their work.  

Without adequate guidance from regulations, administrators rely exclusively on their judgment to further qualify or amplify the definitions and procedures that pertain to eligibility, process, evaluations, number of audits, type of documentation that must be maintained, the format for reporting, the measures that must be used, the regions that will be affected, how funding will be disseminated, the documentation needed to prove a level of service, etc.  The important thing to note here is that this phase is not subject to the public comment process of rule-making.  Thus, substantive policy discretion can be utilized to retool the interpretation of a policy objective set forth in the statute. This raises multiple concerns about transparency in governmental structures that are subject to influence from private interest groups.  In short, ineffective regulation allows departmental heads to retool the operational infrastructure of a legislative initiative in the rule-making phase to advance a political agenda that does not serve the public interest.

Influencing the Regulatory Process

It is important for you to do your own due diligence on the facts. Whether you are acting independently or in a coalition, you must be clear on how you will structure your messaging to both the decision-maker and the staffers in government.

Note: Have a plan for winning over staff. Just because you win over a decision-maker in a nonprofit and advocacy meeting does not mean that his/her staffers are going to buy into your argument.  They have their own agendas that they are pushing forward or mandates they must comply with, and they do not want to divert resources from them. This means that they can pose internal obstacles for you that will result in the failure of your initiative.

Clarity on your objectives and the process will help you stay focused while navigating the complicated, and counter-intuitive policy process. The following issues are useful to think about:

• Is this good regulation and if not what needs to be modified?
• Does the policy broker you're contacting have the authority to do something about this issue?
• Is the solution contingent on intra-governmental coordination and cooperation?
• Do the implementing public agencies and divisions have the resources to implement this nonprofit or advocacy initiative?
• How much will the solution cost?
• What happens if no action is taken?
• What data exists now that supports a need for action?
• Does your organization have a reputation for reliability?
• What is currently working and what is not?
• What will be the top negotiation points?
• What will the opposite side say, and what they will ask for?
• What, if any, concessions are you willing to make?
• What do you want versus what do you need?

Create an Internal Implementation Plan and Timeline

It is critical to establish an internal timeline for achieving multiple benchmarks to measure your progress on the advocacy campaign. If bureaucrats and politicians support a particular group's ideas, they will work with them quickly to accomplish their nonprofit advocacy or lobbying policy objectives.  If, on the other hand, they are philosophically opposed to the ideas of that group, then they can pose many under-the-radar obstacles. The greatest one is to pretend that they are working with that group by meeting with them endlessly without a remedy for the issue at hand.  Instead, they will “study” and “examine” the concern you have raised, and the regulation will move forward without changes. In order to prevent this from happening, one has to have a date by which one wants to see a result.  If by that date the administration you are working with has not yielded a result, you must re-evaluate your strategy.

It is also important to not get discouraged by any of the difficult people you will encounter. Don’t take it personally and work with everyone. Many people in the policy world are unbearably rude, especially if you are reframing the issues in a way that does not support their agenda. Conversely, you will also run into the most delightful people you will ever meet. No matter how likable that person is, listen to what that person is proposing because they may be advocating for policies that would harm your organization’s mission while making you feel like everything will be alright. It won’t be. Instead, focus on the process, remain calm, and rely on your objectives as your NorthStar.

Conclusion

Unfortunately, the consequences of ineffective regulation and the subsequent implementation problems are difficult to detect until after the enforcement of a new rule has commenced. This is why it is essential for nonprofits to be preemptive. Continuous vigilance and monitoring of the various phases of the policy process is essential. This includes 1) legislation, 2) regulation, 3) administration, and 4) government tools. It cannot be emphasized enough. The repercussions of poorly designed rules can range in severity from unfunded mandates for state and local governments that can result in deficits to extreme and tragic tales of preventable abuse for vulnerable communities due to inadequate enforcement mechanisms. Ensuring predictable and consistent systems that apply rules in a uniform fashion, requires that nonprofits maintain a watchful eye for potential implementation challenges caused by the limitations of the legislative and regulatory processes.

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