PUBLIC ACCOUNTABILITY: CONCEPTUAL, HISTORICAL, AND EPISTEMIC MAPPINGS

Transcription

1 CHAPTER 1 PUBLIC ACCOUNTABILITY: CONCEPTUAL, HISTORICAL, AND EPISTEMIC MAPPINGS Michael W. Dowdle INTRODUCTION: ON THE CRISIS IN PUBLIC ACCOUNTABILITY Many in the Anglo-American world perceive a growing crisis in public accountability. In particular, many fear that privatization and globalization are breaking down the traditional accountability arrangements which give us confidence in our government. Privatization seems to be devolving important political authority and power onto private actors who are able to operate outside of the public accountability mechanisms designed for civil servants. Globalization seems to be shifting governmental powers and responsibilities onto transnational actors, both public and private, that operate outside the jurisdictional reach of domestically formulated accountability systems. All this leads many people to wonder whether the political forces affecting their lives are really acting in the interest of the public. This perception of crisis is further exacebated by the fact that different people seem to have very different and often conflicting ideas as to what constitutes or satisfies a meaningfully public accountability. Economic development agencies, for example, often see public accountability primarily in terms of rationalized and transparent systems of bureaucratic control. Human rights activists see it primarily in terms of popular participation in and supervision of political decisionmaking. Legal development agencies see it primarily in terms of judicial enforcement of legal norms. Many regulatory reformers in the United States and Great Britain see it in terms of market-like 1

2 MICHAEL W. DOWDLE competition and discipline. Thus, while there is common perception of an accountability problem, there is also deep division about its exact causes and about what our appropriate response to that problem should be. This book seeks to unpack the nature of this seeming crisis in public accountability. As further explored in the remainder of this chapter, our different visions of public accountability reflect different histories, different experiences and different concerns. Historically, these had been harmonized by the conceptual predominance of what we will call bureaucratic accountability. Recent events, however, have weakened this predominance, and in doing so have catalyzed inconsistencies in the differing logics that underlie these different experiences. Part I of this chapter will examine the historical roots of present-day Anglo-American understandings of public accountability. As we will see, that understanding is very much the product of historical accretion, embedding within it different ways that generations past perceived and responded to past accountability crises. As we will see in Part II, what stabilized this accretional collection of historical experiences and responses until recently was the relative conceptual dominance of one particular kind of public accountability, that of bureaucratic accountability. Part III will explore how recent evolutions in global and domestic governance have reduced the appeal of bureaucratic accountability, and in the process catalyzed conceptual inconsistencies among the other historical-accretional visions, resulting in a growing fragmentation of our present-day notions of public accountability the crisis referred to at the opening of this chapter. In Part IV, we will see that underlying this fragmentation is the fact that we experience accountability in a number of different contexts. These include experiencing public accountability as subjects of state power; experiencing public accountability as conceptual designers of state institutions; experiencing public accountability as citizenparticipants in the state itself (as popular-sovereigns); and experiencing public accountability as human beings interacting with other human beings. We shall also see that each of these ways of experiencing public accountability has its own distinct logic, its own distinct epistemology. A more robust understanding of the nature of public accountability requires a consilience among these different kinds of experience. 2

3 CONCEPTUAL, HISTORICAL AND EPISTEMIC MAPPINGS In Part V, we shall explore how this volume contributes to such a consilience. The remaining chapters of this volume provide a good survey of the four experiential perspectives described in Part IV. We will see how each chapter relates to and informs the other chapters in the book. We will see how weaving through these chapters and their diverse perspectives and experiences is a robust web of conceptual linkages. In the Conclusion, we disaggregate one strand of this web, that of bureaucracy, to show how this web is suggestive of a complex network of interdependencies linking these seemingly distinct and divergent visions. I propose that the key to our effectively responding to the accountability crisis may lie in recognizing and exploring these latent interdependencies. I. AN INTELLECTUAL HISTORY OF PUBLIC ACCOUNTABILITY In beginning our exploration into the diverse structural and experiential facets of public accountability, we might first ask what is public accountability? At its heart, the idea of public accountability seems to express a belief that persons with public responsibilities should be answerable to the people for the performance of their duties (see also Mashaw, this volume). But such an idea exists primarily in metaphor, one that borrows very imperfectly from a number of other discourses about accountability per se. From private law, it borrows the notion that accountability is a product of a particular kind of relationship existing between two individuals, the principal and her agent, in which the agent is required to demonstrate that her actions conform to the demands, intentions, and interests of the principal. It then borrows from political theory the idea that the public itself can be analogized to an individual. The problem is, of course, that the public cannot really be equated with an individual. As an inherently collective phenomenon, the public is only vaguely identifiable in space. Its corpus is diffuse and contestable, and its internal dynamics are often so complex as to be opaque. It rarely can be said to have mental-state intentions, as what intentions it might meaningfully be said to have are often internally inconsistent. Perhaps because of this conceptual conundrum, Anglo-American political and legal theory has tended to define public accountability primarily in terms of discrete institutional architectures. Most prominent among these have been elections, rationalized bureaucracies, judicial 3

4 MICHAEL W. DOWDLE review, transparency, and markets. As we shall see, each of these architectures developed as exigent responses to various legitimacy crises that have periodically beset Anglo-American governance. Elections have been a key component of Anglo-American conceptions of public accountability ever since the founding of the American constitution. In the United States, electoral recall originally represented the principal sanction by which the citizenry were to hold politicians accountable for errant political frolics. James Madison commented upon the centrality of elections to early American notions of public accountability: As it is essential to liberty that the government in general, should have a common interest with the people; so it is particularly essential that [the House of Representatives] should have an immediate dependence on [and] an intimate sympathy with the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured. 1 But, even in the Anglo-American world, intellectual and political support for electoral democracy has always been decidedly mixed. In the United States at the end of the nineteenth century, the ability of machine-style, patronage-based politics to thrive in electoral competition, at the seeming expense of the public good, caused many to become skeptical of the electorate s capacity to hold politics to true, public account. Reformers sought, instead, to hold political behavior to such account via the construction of rationalized, professionalized bureaucratic frameworks. To these reformers, devices such as meritocratic recruitment, tenure and promotion; professionalization; and scientific administration offered a more satisfying vision of public accountability. It was a vision of public accountability that worked by subjecting political behavior to the oversight of an organizational environment specifically designed to recognize and pursue the public good as opposed to one that relied primarily on corruptible electoral impulses. (See also Dowdle, this volume.) At the same time as the Americans were turning to bureaucracy as a cure for perceived accountability problems of electoral democracy, constitutional scholars in England began turning to the judiciary as a cure for the perceived accountability problems of both democracy and bureaucracy. Spurred in part by their contact with the Chinese, England had began rationalizing and professionalizing its administrative bureaucracy in the 1850s. They did so, however, not so much 4

5 CONCEPTUAL, HISTORICAL AND EPISTEMIC MAPPINGS for accountability reasons i.e. to counteract a possibly runaway electorate but more simply to increase the capacities and effectiveness of executive government. By the 1880s, the influential English constitutional law scholar, Albert Venn Dicey, had become concerned about some might even say obsessed with these expanded administrative capacities, arguing that, with these expanded powers, administrative government was increasingly able to operate outside of traditional constitutional constraints. Dicey advanced an idea, what he famously called rule of law, that such constraints had to be maintained principally by giving the courts oversight over bureaucratic behavior. 2 In the 1930s, American jurists, too, became increasingly concerned about perceived constitutional threats brought about by the emergence of the American administrative state, and they were strongly influenced by Dicey s description of the need for a strong judicial check on the growing administrative state. 3 Dicey s vision saw judicial review primarily as a substantive constraint on bureaucratic decisionmaking. The American vision, by contrast, adopted a more process-focused approach. This approach became theoretically codified in the 1950s, resulting in what G. Edward White has called the legal-process school of American jurisprudence. 4 One of the accomplishments of these process-school jurists was to link the idea of judicial review with that of public accountability by articulating a symbiotic relationship between judicial review, procedural visibility, and public faith in government. Acknowledgment of this linkage can be found in Amalgamated Meat Cutters v. Connally: Concepts of control and accountability define the constitutional requirement. The principle permitting a delegation of legislative power, if there has been sufficient demarcation of the field to permit a judgment whether the agency has kept within the legislative will, establishes a principle of accountability under which compatibility with the legislative design may be ascertained not only by Congress but by the courts and the public. 5 In the 1960s and 1970s, rising disillusion of American government, generated first by the Vietnam War and later by the Watergate scandal, caused many to become skeptical about the degree to which either professionalized rationalization or judicial review could encourage public officials to actually work in the public interest. This occasioned the appearance of yet another architectural modality for political accountability, that of transparency and open government. 6 5

6 MICHAEL W. DOWDLE Open government sought to make governmental decisionmaking as visible as possible not simply to those who directly involve themselves with government, but also to the larger uninvolved portion of the polity. At the heart of this movement at the federal level was a series of laws passed between 1966 and Principal among these were the Freedom of Information Act, 7 passed in 1966, which generally requires federal agencies to release their records to the public upon request, and the Government in the Sunshine Act of 1976, 8 which requires most federal agencies to hold their meetings regularly in public session. This new vision of open government promised to allow a much wider range of civil society to hold public officials to account even without directly participating in political decisionmaking. In the 1970s, economic stagnation in the United States and Great Britain caused growing concern about governmental waste, inefficiency, and unresponsiveness. This caused some reformers to look to market-like mechanisms, which they believed more efficient in allocation and usage of resources, as a means of promoting the responsible use of public resources. In some cases, these reformers advocated devolving public responsibilities directly onto private, market-based actors. Beyond this, reformers in the United Kingdom also invented new governance architectures that replicated market-like forces of competition by having different public departments compete in the development of effective regulation, while American reformers developed architectures and procedures, like cost benefit analyses, that sought to replicate market-like pricing and demand mechanisms. (See generally Mashaw, this volume; and Freeman, this volume.) II. STABILITY AND CONTIGUITY In sum, the Anglo-American idea of public accountability is not so much the product of extrapolation from core conceptual principles as an accretional layering of responses to periodic legitimacy crises experienced by Anglo-American societies. But why and how did these successive modalities aggregate into a singular conceptualization of public accountability, rather than simply producing a sequence of competing conceptual paradigms? For most of the twentieth century, the stability of this accretional layering has been due largely to the fact that one particular modality of public accountability that of bureaucracy has enjoyed a privileged, 6

7 CONCEPTUAL, HISTORICAL AND EPISTEMIC MAPPINGS primus inter pares status when it came into conflict with other modalities. 9 (See also Rubin, this volume.) Of course, this predominance was not always the case. We noted above that elections were the principal recognized source of public accountability for the first 100 years of American constitutional government. Indeed, there is some evidence that the drafters of the American constitution were quite distrustful of bureaucratic government. But when American reformers began promoting bureaucratization as an accountability alternative to democracy, they triggered a corresponding reconceptualization of the nature of democracy itself. Democracy came to be thought of in the more limited terms of elections and suffrage, as opposed to the more robust notion of participation famously described by Tocqueville. Reorienting the idea of democracy in this way avoided conflict with growing norms of bureaucratization and professionalization, both of which sought to remove the more day-to-day, technocratic matters of public administration from the partisan politics that a more participatory vision of democracy seemed to unleash. 10 (See also Dowdle, this volume.) A similar clearing of space occurred when the expanded capacities of bureaucratized administrative government also brought it into conflict with judicial review. As described above, constitutional scholars in both England and the United States had originally hoped that preexisting processes of judicial review could be used to put a brake on the inherent dangers of bureaucratic administrative governance. This was not to be the case, however. Both English and American courts have adopted a vision of judicial review that is largely deferential to the substance of bureaucratic decisionmaking. During the first two-thirds of the twentieth century, the British courts deference to the administrative state has been so complete that there was a real question whether judicial review in Britain had any real meaningful impact on the actual operations of administrative governance. 11 On the other side of the Atlantic, the American courts have also decided wisely in the eyes of many to defer to bureaucratic judgment, at least when it is properly processed. As recently noted in a germinal article written by Elena Kagan, former Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council during the Clinton Administration: For too long, administrative law scholars focused on judicial review and other aspects of legal doctrine as if they were the principal determinants 7

8 MICHAEL W. DOWDLE of both administrative process and administrative substance. They are not... As this new body of scholarship has shown, much of what is important in administration occurs outside the courthouse doors. It occurs as new views emerge of the appropriate goals and optimal strategies of regulatory programs. Less often stressed, it occurs as bureaucratic institutions, the constituencies with which they deal, and the political environment in which they operate change over time. 12 Nor did the more recent modalities of public accountability e.g. open government, deregulation, privatization, contracting out seriously challenge bureaucratization s dominance as our main paradigm for public control. The open government movement of the late 1960s and early 1970s quickly subordinated itself to the perceived needs of bureaucratic government. The Freedom of Information Act is qualified by its famous Exemption 5, which allows an agency to lawfully withhold inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency. 13 The exemption was thought necessary to protect... the decisionmaking processes of government agencies. 14 Similarly, one study suggests that the Government in the Sunshine Act has become so conditioned by exceptions both legislative and judicial that it has had little real substantive impact on the character of governmental decisionmaking in the United States. 15 More recent, market-inspired governmental reforms such as contracting out, devolution, and streamlined government, despite often being motivated by expressly anti-bureaucratic impulses, have for the most part simply substituted one (often less visible) bureaucracy for another. In the United States, for example, an overall decrease in the size of the federal bureaucracy during the 1990s has been offset by corresponding increases in the size of state government bureaucracies. 16 Decreases in public bureaucratic responsibilities due to contracting out have been counterbalanced by increased private bureaucratic responsibilities within contracting firms. 17 Of course, this is not to deny that these reforms have indeed had important effects on regulatory governance in the United States and the United Kingdom (see, e.g., Mashaw, this volume). It is simply to point out that, despite their often expressly anti-bureaucratic intentions, this most recent round of regulatory reforms did not so much challenge bureaucratic accountability as it has shifted it around. 8

9 CONCEPTUAL, HISTORICAL AND EPISTEMIC MAPPINGS III. FRAGMENTATION Recent events have disrupted the stability of the Anglo-American, accretional vision of public accountability, however. We noted above that this vision has been sustained in part by the pride of place it gives to bureaucratic structuring. One of the reasons why bureaucratization has been able to enjoy this pride of place is because it was most consistent with the evolving organizational trends of what we might call modernized Anglo-American society as it emerged in the early twentieth century. 18 Industrialization occasioned a massive rationalization, regularization, and centralization of social life. The rationalization, regularization, and centralization that characterize bureaucratic administration worked in significant part by paralleling this development. (See also Dowdle, this volume.) Bureaucratized regulation, for its part, depends vitally on a stable regulatory environment for its effectiveness. Bureaucratic rules and procedures designed to address a particular set of circumstances can easily become dysfunctional when those circumstances change. However, recent innovations in information technologies have caused both domestic and international regulatory environments to become increasingly unstable. As a result, regulatory systems are therefore being reoriented to emphasize flexibility and adaptability, at the expense of bureaucratic predictability and control. 19 Another reason for the disruption of the Anglo-American vision of public accountability has to do with recent developments in the global environment. During the last half of the twentieth century, what we are calling the Anglo-American model of public accountability became increasingly internationalized. Following the end of the Second World War, the United States exported its particular vision of bureaucratic regulation to Western Europe and, to a lesser extent, to Japan in the process of helping rebuild state and government institutions in the aftermath of the war. 20 American post-war dominance of emerging institutions devoted to international governance and international development also caused the American vision of public accountability to become increasingly embedded in both public international law and the legal and political environments of many developing countries. In this way, the Anglo-American experience of public accountability increasingly came to be regarded as an international standard for governance. 21 9

10 MICHAEL W. DOWDLE However, the end of the Cold War removed one of the principal transnational incentives for international unity with regard to Anglo- American political models, including that of public accountability. Multilateral tolerance for America s intellectual dominance within international regulatory and intellectual arenas had been sustained in part by the First World s perceived need to present a united front against communism in general and the Soviet Union in particular. With the collapse of the Soviet Union, this united, American-led vision of what constituted good, or even democratic, governance has come under increased scrutiny. At the same time, new technologies have also enabled formerly isolated, localized resistance movements to participate in and gain support from international networks of like-minded resistors and activists (see also Courville, Morgan, Ford, this volume). A growing array of self-consciously local interests are now increasingly able to contest, both normatively and practically, their assimilation into centralizing, bureaucratic regulatory frameworks. For both these reasons, the Anglo-American vision of public accountability, which used to be seen as a bulwark for liberal political stability, is now sometimes seen as an instrument of political hegemony. 22 The result has been a fragmentation in public accountability discourse. As the harmonizing dominance of bureaucratic modernization is delegitimated by newer and more localized organizational logics that stress flexibility and decentralization, formerly latent tensions among the diverse architectural modalities that make up the Anglo- American vision of public accountability become more manifest. Different kinds of political interests tend to be attracted to different modalities of accountability. Trade unions, for example, whose impact on political decisionmaking historically has come in large part from their ability to mobilize voters, tend to prefer electoral modalities of accountability. International human rights organizations, whose staff generally includes a high number of persons with legal training, tend to prefer juridical modalities of public accountability. Economically oriented interests tend to be more comfortable with rationalized bureaucracies and open governance, which both mesh with their own institutional practices and make it easier for them to navigate the diversity of transnational and domestic regulatory environments in which they must operate. Paradoxically, however, the retreat of the logic of modernization has also caused a quickening of public accountability discourse. 10