Policy laundering

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.

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, WIPO2)3), the Anti-Counterfeiting Trade Agreement (ACTA)4), or the failed Treaty establishing a Constitution for Europe.

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 US 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)

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.

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) 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).

Hosein, Ian, The sources of laws: Policy dynamics in a digital and terrorized world, The Information society, 2004, vol. 20, no 3, pp. 187-199
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.
Yu, Peter K., The Political Economy of Data Protection, Chicago-Kent Law Review, Vol. 83, 2008
Stavros Lambrinidis, Vice President of European Parliament (2009), S and D, Greece, "Stop Acta"
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
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)
Convention for the Protection of Migratory Birds of August 16, 1916, T.S. No. 628, 39 Stat. 1702.
Migratory Bird Treaty Act, Act of July 3, 1918, c. 128, 40 Stat. 755. Codified at 18 U.S.C.§703.