Laws are shaped politically at an early stage
When a law is being drafted, many people have a say. Contrary to the assumption that this only happens after the draft text has been written, many political compromises are made in the early stages of the legislative process. This is shown in the dissertation by Raphael Capaul from the Centre for Democracy Aarau in collaboration with the Centre for Legislative Studies at the University of Zurich and the Competence Centre for Public Management at the University of Bern.
A great deal of time and effort goes into the creation of a law. Before it can be implemented, it goes through various stages of development in which the interests of different stakeholders must be taken into account. A milestone in this process is when the Federal Council instructs the administration to draft a bill. Many studies have already examined how political decision-making processes unfold after the mandate is issued. However, little was known until now about whether, and if so, which political dynamics are already at work beforehand.
This happened, for example, when the Federal Council commissioned the Federal Department of Finance (FDF) in March 2012 to draft a new Financial Services Act. However, the Swiss Financial Market Supervisory Authority (FINMA) had already published a report in November 2010 containing ideas for a possible legislative project. By May 2011, FINMA had consulted relevant stakeholders on the report, incorporated their criticism and published a further report on the direction of the project at the end of February 2012. Only then did the administration request the Federal Council to issue a legislative mandate. This was finally issued on 28 March 2012.
Early compromises as isolated cases or the norm?
Raphael Capaul’s dissertation examined this little-researched phase prior to the legislative mandate. Using nine case studies from financial, migration and spatial planning legislation, he examined legislation at the national level using qualitative data from Swiss politics between 2011 and 2021. The focus was on the question of whether the early consideration of different interests is the exception or the rule. Raphael Capaul explains why this is relevant as follows: «Whoever sets the agenda has the power.» The dissertation was written as part of the ‘Factors of Good Legislation’ project, which is supported by the Centre for Democracy Aarau.
Legislative power of Federal Council and administration less than assumed
The main finding is that the Federal Council and the administration regularly involve various interests before a bill is even drafted. The aim of these compromises is to anticipate future veto points and give the legislative project a better chance of success. Ultimately, this approach implies that the legislative power of the Federal Council and the administration is much smaller than previously assumed. According to Raphael Capaul, this means that «there is no reason to join in the dystopian lament about the poor quality of Swiss legislation. The scientific criteria for “good” legislation, which can be linked to the initiation of legislative work, are fulfilled.»
The dissertation
Project: «Factors for good lawmaking»
The research project is being conducted in collaboration with the Competence Centre for Public Management (KPM) at the University of Bern, the Centre for Democracy Studies Aarau (ZDA) and the Centre for Legislative Studies (ZfR), both at the University of Zurich. The project is funded by the Foundation for Swiss Justice. Project website.
Contact
Raphael Capaul: raphael.capaul@bluewin.ch
About the CDA
The Centre for Democracy Studies Aarau (CDA) is a scientific research centre supported by the University of Zurich, the University of Applied Sciences and Arts Northwestern Switzerland, the Canton of Aargau and the City of Aarau. It conducts basic research and addresses current issues relating to democracy – regionally, in Switzerland and worldwide. www.zdaarau.ch