ASSESSING POLICY DIVERGENCE: HOW TO INVESTIGATE THE DIFFERENCES BETWEEN A LAW AND A CORRESPONDING REGULATION
| Author | JOHN BRETT,CHRISTOPHER M. WEIBLE,DAVID P. CARTER,SABA N. SIDDIKI,SARA MILLER CHONAIEW |
| Published date | 01 March 2015 |
| Date | 01 March 2015 |
| DOI | http://doi.org/10.1111/padm.12120 |
doi: 10.1111/padm.12120
ASSESSING POLICY DIVERGENCE: HOW
TO INVESTIGATE THE DIFFERENCES BETWEEN A LAW
AND A CORRESPONDING REGULATION
DAVID P. CARTER, CHRISTOPHER M. WEIBLE, SABA N. SIDDIKI, JOHN BRETT
AND SARA MILLER CHONAIEW
Policy designs are selected to achieve specic policy outcomes. The policy process, however,contains
multiple junctures when a policy’s design may diverge fromits original intents. Despite this fact, few
theoretically valid and methodologically reliable approaches exist to assess policy divergence as it
occurs during the policy process. This article presents a method for assessing policy divergence dur-
ing implementation with a comparative analysis of a legislative law and corresponding regulation.
The case analysed is US organic food policy in the 1990 Organic Foods Production Act and 2002
National Organic Program regulation. The article draws theoretical leverage from Mazmanian and
Sabatier’s implementation framework and methodological leverage from the institutional analysis
and development framework. The analysis indicates that the designs of both policies are fairly robust
with relatively minor divergence. The conclusion discusses the gains and challenges in developing
a comparative approach to studying policy designs and assessing policy divergence.
INTRODUCTION
A central purpose of public policy is to address societal problems through the coordina-
tion of collective action. Among the factors that affect a policy’s likelihood for success is
its design: the textual content of a policy that describes the plan for achieving desired out-
puts and outcomes (Schneider and Ingram 1997; Howlett and Lejano 2013). While a policy
is designed to achieve specic outcomes, the extent to which a policy’s initial design is
reected in subsequent policies and actions of implementing actors depends on the degree
of policy divergence that takes place during implementation and administration (Keating
2005).
Much of the literature on policy divergence compares the degree to which similar
national or regional policies diverge over time (Keating et al. 2003; Keating 2005; Howlett
and Rayner 2007). The policy process, however, consists of multiple junctures at which a
single policy might diverge from its initial design, from formalized veto points (Pressman
and Wildavsky 1973) to decisions and actions taken by street-level bureaucrats (Lipsky
1980; Elmore 1980). A central juncture at which policy design is susceptible to divergence
is the translation of legislation into regulation through agency rulemaking (Huber and
Shipan 2002; Kerwin and Furlong 2011). At this juncture, interest groups can, and do, use
public comment periods to substantively alter proposed regulations (Yackee 2006; McKay
and Yackee 2007). Furthermore, interest groups can affect rulemaking prior to the public
comment period by inuencing the rulemaking agenda and shaping the initial content of
proposed regulations (Yackee 2012).
Determining the extent to which decisions made through agency rulemaking result in
policy divergence is complicated by the ‘dependent variable problem’ – the methodolog-
ical challenge of conceptualizing and measuring policy design (Green-Pedersen 2004;
David Carter and Chris Weibleare at the School of Public Affairs, and John Brett is at the Department of Anthropology,
University of Colorado–Denver, Denver, Colorado, USA. Saba N. Siddiki and Sara Chonaiew are at the Indianapolis
School of Public and Environmental Affairs, Indiana University–Purdue University,Indianapolis, Indiana, USA.
Public Administration Vol.93, No. 1, 2015 (159–176)
© 2014 John Wiley & Sons Ltd.
160 DAVIDCARTER ET AL.
Howlett and Cashore 2013). Typologiesof policy change (Durant and Diehl 1989; Howlett
and Cashore 2013) can help distinguish how divergence occurs; however, they do not
shed light on the extent of divergence or what design elements changed. This article
presents one methodological solution to this problem, illustrated through a comparative
analysis of a legislative law and corresponding regulation.
Assessing policy divergence between a law and regulation requires a reliable proce-
dure for coding their content and a valid lens for diagnosing and analysing their relative
strengths and weaknesses (West 2005). We draw theoretical inspiration from Mazmanian
and Sabatier’s (1983) implementation framework. The implementation framework is cho-
sen due to the empirical verication of many of the policy design attributes identied
within it (Sabatier 1986). In revisiting the Mazmanian and Sabatier (1983) implementa-
tion framework, the intent is not to revitalize top-down versus bottom-up implementation
research debates. Instead, we seek to contribute to the comparative study of public pol-
icy by combining the theoretical leverage of the implementation framework with meth-
ods built on the conceptual leverage of the institutional analysis and development (IAD)
framework. The coding methods expand upon previous work in deconstructing policy
designs (Crawford and Ostrom 1995, 2005; Basurto et al. 2010; Siddiki et al. 2011, 2012).
The comparative analysis is conducted through an investigation of the 1990 Organic
Foods Production Act (OFPA) and the National Organic Program (NOP) regulation. The
NOP establishes standards for the use of the term ‘organic’ within the USA to ensure
uniform organic standards and encourage an organic market. The case is selected for
two central reasons. First, the NOP rulemaking process drew an unusually high level
of citizen response, resulting in changes to the proposed regulation to more closely
reect consumer demands (Manning 1998; Burros 2000), and offering a case in which
regulatory divergence might be expected. Second, since regulation enactment in 2002,
the organic food market has grown from a niche production to a global industry (Good-
man 2000), highlighting the practical importance and some level of success for the
Program.
This article is structured around two research questions: (1) To what extent do the
designs of the OFPA law and NOP regulation adhere to the design attributes from the
implementation framework? (2) How does the design of the NOP regulation diverge
from the design of the OFPA? The conclusion provides answers to these questions in
reference to the case study and then broadens the discussion regarding the theoretical
and methodological contributions in comparing a law and its regulation.
USING DESIGN ATTRIBUTES TO ASSESS AND COMPARE POLICY DESIGNS
Conceptualizing and assessing policy design divergence requires standardized com-
parison criteria that not only aid in highlighting what has changed, but also indi-
cate the extent to which divergence potentially weakens or strengthens a policy
design. For such theoretical direction, we draw on Mazmanian and Sabatier’s (1983)
policy design attributes. Although the Mazmanian and Sabatier framework has
seen little use in the last two decades, it remains one of the premier approaches to
the top-down study of policy implementation (Birkland 2011; Smith and Larimer
2013). Although necessarily limited, the top-down approach directs researchers to
investigate how to design better policies to improve the likelihood of successful
implementation. As practitioners struggle in writing effective public policies, there
Public Administration Vol.93, No. 1, 2015 (159–176)
© 2014 John Wiley& Sons Ltd.
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