the public interest and why it matters

Special interests have overwhelmed the public interest–to the detriment of justice.

I believe that proposition, but it’s important to acknowledge several valid points in favor of special interests. They arise whenever people are free; and therefore to suppress them, as Madison said, would be a treatment “worse than the disease.” When we form distinct interest groups, society becomes diverse and plural; we are then a rich mosaic instead of a monotonous mass. When interests take the form of parties, unions, and pressure groups that advance sharply dissenting views, citizens gain choices and can govern by picking one clear path. And finally, justice sometimes demands the strong defense of discrete interests and values.

Picture, for example, members of the United Farm Workers Union marching for 340 miles from the grape fields of Delano to Sacramento behind the image of the Virgin of Guadalupe, arriving on Easter Sunday 1965 to say, in the words of César E. Chávez, “We want to be equal with all the working men in the nation; we want just wages, better working conditions, a decent future for our children. To those who oppose us, be they ranchers, police, politicians, or speculators, we say that we are going to continue fighting until we die, or we win.”

This was a manifestation of a “special interest,” in the sense that the workers demanded legislation that would benefit them, they identified adversaries whose interests they decried, and they did so proudly in their own cultural and religious idioms, deliberately putting their distinct identity into the public domain and demanding recognition. Yet Chávez was surely right that they marched for justice. The public interest was served by their struggle.

Having acknowledged that point, I still maintain that we have lost the public interest among special interests. The Farm Workers’ struggle was one kind of politics, but far more common is a routine controversy among economic interests. For example, optometrists and ophthalmologists frequently clash over the right to perform particular procedures. Their disputes become policy questions because state and federal governments license medical professionals for specific roles and also decide which procedures to reimburse through Medicare and Medicaid. Optometrists and ophthalmologists are organized and employ lobbyists and litigators. Although they often cooperate, they also clash. In recent years, optometrists have lobbied Texas, Florida, California, and Oklahoma for the right to perform eye surgery not requiring anesthetics. In 1987, optometrists won changes in federal Medicare rules which caused their share of the Medicare market almost to quadruple in one year.

Of course, there are other interests at stake, beyond the optometrists and the ophthalmologists–including patients and taxpayers. Somehow, all their competing claims must be adjudicated. Here are four solutions that can be defended theoretically:

    1. Implement the policy that maximizes the benefits and minimizes the costs to society as a whole. In this example, we would define “benefits” in terms of high-quality medical services, and costs in terms of money and adverse medical outcomes. The hope is to make the whole issue a scientific one; thus it is ostensibly on scientific grounds that the The American Academy of Ophthalmology asserts that “surgery should be performed by physicians with a medical or osteopathic education and training” (i.e., not by optometrists). But in addition to the science, there is also a moral premise here: policies should maximize the social cost/benefit ratio. That is one form of utilitarianism.

    2. Implement the most popular policy. Then the goal is to satisfy as many people’s preferences as possible, perhaps weighted for how much they know or care about the issue. Ideally, policymakers would hold focus groups or even polls or referenda to find out, but in the absence of those tools, a good policy is the one that people would support if someone asked them. This is a second form of utilitarianism (preference-satisfaction), and it also appeals to populists.

    3. Minimize the role of the state and maximize individual freedom. Milton Friedman argued that all licensing laws were corruptly monopolistic. Patients and other consumers should be “free to choose” whatever medical procedures they wanted from anyone who offered to provide them. Many patients would consult third-party experts for guidance, but if they acted without such guidance, that was their moral right. Friedman opposed Medicare altogether, but assuming it existed, he might favor reimbursing surgeries by anyone whom patients endorsed. His view was a type of libertarianism.

    4. Maximize the benefits–not for society in the aggregate–but specifically for the poor and marginalized, because they are not served by the market. Instead of calculating how many total high-quality procedures can be performed per million dollars of government money under each policy, calculate how many poor people would gain access to such services. That is egalitarianism.

And here are four ways that seem indefensible theoretically but that are very common:

    5. Split the difference between the optometrists and ophthalmologists, or give one interest what it wants and make a side payment to the other interest.

    6. Preserve the status quo, whatever it may be.

    7. Create a permanent process of bargaining within the executive, legislative, and judicial branches of both federal and state governments and allow policies to vary by year and place. That way, no one loses outright, and the professionals involved in lobbying, litigation, regulation, advocacy, policy research, and public relations can remain permanently employed.

    8. Let the interest that wields the most effective political power win.

I would call options 5-8 “corrupt”–not to fling around insults, but in a sober, technical sense. The public good that is the root meaning of “republic” is subverted when these methods prevail.

Each of the first four options, by itself, could solve the corruption problem (although not without creating new problems). For example, libertarians argue that money would lose its corrupting influence over politics if the government stopped regulating altogether and left people free to choose. Populists since William Jennings Bryan have argued that popular rule (referenda and the like) would make government clean. And many good government reformers believe that an insulated, professional, scientifically informed civil service could maximize benefits and minimize costs.

But the very fact that there are four plausible approaches to addressing conflicts among interests suggests that we have an intellectual problem–and of course, one could lengthen the list of approaches to include various kinds of environmentalism, religious doctrines, respect for traditions, and/or group rights. It appears that we need:

    9. an ongoing dialog in public forums about what the public interest requires.

But what actually prevails is some combination of the four indefensible options.

One reason for this corruption is suggested by rational choice theory. Everyone is affected by the struggle between optometrists and ophthalmologists, but most of us to a very limited extent. The optometrists and the ophthalmologists are deeply affected. It therefore pays for them to lobby in their own interests, but it does not pay for the rest of us to organize on this issue. In founding Common Cause, John Gardner said, “Everyone is organized but the people.” Maybe he was just stating an inevitable fact.

Another reason is pervasive social inequality. The homeless are a discrete group of modest number who share important interests. In those respects, they are comparable to realtors. Both groups should organize in their own interests. But according to the Center for Responsive Politics, “the real estate industry gave $135 million to federal candidates and campaigns in 2008, with the National Association of Realtors contributing the most by far, at $4.3 million.” The homeless presumably gave approximately zero dollars to federal candidates in that year. The reason is not the size or structure of the two interests, but simply that realtors have a lot more money than homeless people. Since economic inequality is more pronounced in this decade than at any time since at least 1929, it would not be surprising if–to paraphrase E.E. Schattschneider–the choir of interest groups sings today with a “decidedly upper class accent.”

The final reason is that we don’t have a confident language or intellectual framework for discussing the public interest. Many intellectuals still argue that there is no such thing, that politics just is a clash of special interests. Certainly, hard-boiled political reporters depict politics that way. Most public administrators are still trained, as Robert Reich observed in The Power of Public Ideas (1988) either to facilitate endless negotiations among organized interests or to apply science and economics to identify the most efficient policies. Neither method can generate a claim about what is right or good. As Theodore Lowi wrote in his brilliant 1969 book The End of Liberalism, these methods “impair legitimacy by converting government from a moralistic to a mechanistic institution.” Deliberation about principle looks naive and becomes an obstacle to smooth stakeholder negotiation, negotiated rulemaking, or cost/benefit calculation. The characteristic ethic of governance–deciding together what is right to do–is lost. And when governance turns into negotiation, the organizations with big bank accounts always win.

I don’t know to what degree this last explanation–an intellectual one–accounts for the state we find ourselves in. I suspect it does matter, because when there is no robust, confident, public dialog about the public interest, we let Citizens United become the default theory. The natural dominance of well-funded special interests is left unchecked.

To return to César Chávez: he fought for an interest group but his rhetoric was intentionally universal. “We seek our basic, God-given rights as human beings. … We seek the support of all political groups and protection of the government, which is also our government, in our struggle. … At the head of the pilgrimage we carry La virgen de la Guadalupe because she is ours, all ours, Patroness of the Mexican people. We also carry the Sacred Cross and the Star of David because we are not sectarians, and because we ask the help and prayers of all religions.” This was a moral claim on the public as a whole, which is the essence of good politics and what we risk losing today.

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