Laws are made or changed by votes in the legislature. And how do you change the law if you’re not a legislator? You must first change the range of options available to lawmakers. In other words, shift the Overton Window.
Joseph Overton (1960-2003) was my friend and colleague. An engineer turned policy wonk, Joe observed two fundamental features of the lawmaking process. First, potential public policies on any topic (e.g., education, taxation, energy, drunk driving laws, drug prohibition) can be arranged in order along a scale. At one end of the scale are policies requiring the most government intervention. At the other end are those that involve less government spending, regulation and enforcement. Joe was a libertarian, or classical liberal, so he described the scale as running from less free to more free.
Tax rates are simple to place along the scale. At one end is 100 percent taxation, and zero percent defines the other end. All other tax rates are in between, in numerical order. Placing the tax rates in order says nothing about what is the best tax rate.
Joe’s second observation was that lawmakers are constrained. They can’t cast votes for any policy they like, as if they’re ordering dessert from a menu. They are constantly mindful of what the public will accept. They won’t order pumpkin pie, no matter how much they like it, if their constituents think pumpkin eaters are evil and stupid. If a lawmaker supports far more, or less, government intervention than his or her constituents will accept, the voters might return that official to the private sector at the next election.
The upper and lower policy bounds of what the people will accept define the top and the bottom of the Overton Window. Support for policies inside the window is “safe” for the lawmaker (defined as not risking their reelection), but votes outside the window are unsafe, defined as risking political defeat.
Just what specific policy constitutes the upper or lower bound of the Overton Window is a judgment call. But that judgment is the peculiar skill of elected officials. After all, they managed to get into office by somehow divining who and what their voters would accept and even approve. The Overton Window lends a slight appearance of precision to what might otherwise seem to be a guess.
A hypothetical legislator might want to change his state’s income tax rate. Precisely what tax rates are inside the Overton Window will be the subject of much thought and debate. But it’s safe to say our lawmaker will not propose tripling the rate or slashing it to zero if he aspires to another term, even if one of those is truly a better tax rate. Neither extreme is inside the Overton Window and so will not even be considered by this hypothetical lawmaker.
Happily, we are not condemned to live inside today’s Overton Window indefinitely. If we were, we could not apply what we learn from mistakes, or adapt to new circumstances. Progress might be impossible. Would we really want to live in a country where women cannot vote, or civil rights are not protected for people of every hue?
The Overton Window can be shifted in ways that offer lawmakers new options that are free of some of today’s political constraints. Shifting the Overton Window is the great task of what Nobel laureate and economist Friedrich Hayek called “secondhand dealers in ideas,” including think tanks and other intellectual advocates for new policies that are not yet politically possible.
There is no single mechanism for shifting the Overton Window, but it always involves persuading the people to prefer, or at least accept, a new policy. Lawmakers then follow by ratifying what the people have chosen.
Think tanks and policy advocates persuade by appealing to logic, emotion, and authority – all part of the package of human persuasion. Personal experience shapes what people believe and what they’re open to believe. Crisis and external conditions are significant factors that shift the Overton Window.
The COVID-19 pandemic slammed the Overton Window downward toward more government control. Almost overnight, mass suppression of civil liberties occurred that would not have been tolerated only weeks before: forced closures, mask mandates, gathering restrictions, travel bans, activity limits, privacy intrusions. All of these came into place. The politicians and government officials who enacted these policies thought their actions would be popular or, at least, tolerated. In most cases they were, at least for a while.
Policy advocates then had their tasks laid out. Those who wanted more freedom from government restrictions had to persuade others that the lockdowns were unnecessary, counterproductive, and reactionary government overreach. They had to point out the harm the pandemic policies caused.
Those on the other side had to persuade people of the opposite, and perhaps even add that we should have had some of those policies in place all along, as was the case in some countries. They had to demonstrate that the policies protected health and life at an acceptable cost. But either way, the pandemic itself increased public awareness of the potential need for government intervention, and the Overton Window shifted.
The Overton Window is an imperfect but helpful way to look at persuasion in the policy making process. It doesn’t describe everything, but it does illuminate one big thing: Irrespective of their own policy preferences, lawmakers enact policy within political constraints whose bounds are set by the public. Those bounds define the Overton Window, which can be shifted toward more government, or less, by policy advocates who never cast a vote in the legislature. They can, to paraphrase Milton Friedman, make the politically impossible become the politically inevitable.
Joseph G. Lehman is president of the Mackinac Center for Public Policy, a Michigan think tank.
The views expressed in this opinion piece are the author’s own and do not necessarily represent those of The Daily Wire.