on government versus governance, or the rule of law versus pragmatism

I am co-teaching the Summer Institute of Civic Studies and blogging about roughly half of the 18 topics on our syllabus. This post summarizes an important debate about the structure and ethic of government that also influences how citizens should see their roles. The readings are:

  • Theodore J. Lowi, The End of Liberalism (second ed., 1979), pp. 42-63; 295-313
  • Michael C. Dorf and Charles F. Sabel, “A Constitution of Democratic Experimentalism,” with a focus on pp. 270-338

Consider two radically opposed perspectives on democracy (in general) and the American republic (in particular):

1. The essence of government is deliberation, leading to law.

Deliberation is about principles. It can be conducted by citizens or by legislators, or both. There should be one discussion within each polity, and it should be open to and followed by all.

Law means general, durable, consistent, equitable rules that are predictably and efficiently enforced.

Public deliberation should be about law and should result in the passage of major statutes that widely effect society.

Meanwhile, ordinary life in society can involve particular people and firms that make their own decisions, changing their minds, acting according to self-interest, and negotiating with others. The framework for their free action is set by law.

The problem with our republic is that we have lost the distinction between society and government. Government is now a venue for endless negotiation among interest groups about malleable policies (not about law, in the classic sense.) Private interests are too influential, and government behaves too much like a private interest or like a manager of interest-group negotiations. The rule of law, deliberation, and equity are lost.

2. Governance means all the ways we shape our common world. It involves (and ought to involve) constant experimentation, learning and adjustment, negotiation, compromise, and the use of many tools to influence society, including moral persuasion, information, monetary incentives, prizes, rules, punishments, etc.

The government is part of that; it is one instrument of governance. Far from unitary, it consists of many levels, agencies, branches, and offices. They inevitably negotiate and compromise with each other. People who work for the government also wear other hats, as activists, taxpayers, residents, etc. Successful government employees are “policy entrepreneurs,” selling their ideas in the marketplace.

The problem with our republic is the excessive distance between the government and other entities that affect our common life. That gap causes inefficiencies and mistrust. We need more public/private partnerships, more flexibility in government, and more market-like methods.

Theodore Lowi argues for the first perspective; Dorf and Sabel, for the second.

A specific problem has arisen that feeds this controversy. Whether we think of it as the problem of the regulatory state, administrative discretion, or delegation, this is the concern: our constitution invests all legislative authority in the Congress and envisions the president debating with Congress and then implementing the law. But in reality, a modern Congress uses law to create administrative or regulatory agencies with broad discretion and autonomy. Congress passes statutes, but regulations, administrative law decisions, and government contracts are pervasive aspects of governance, composing a “fourth branch.”

Laissez-faire conservatives oppose that whole system because of their economic theory, but they support the same style of governance in their own favored areas. Theodore Lowi argues that the emergence of the Fourth Branch is a symptom of deep corruption that undermines liberalism.

Lowi on Interest Group Liberalism

Until the New Deal, there were grand debates about the size and scope of government, pitting liberals versus conservatives. They revolved around the passage of landmark legislation such as the Social Security Act. (1935). These landmark statutes were widely debated and changed society. Mass movements mobilized around them.

We don’t have such legislation any more. The Affordable Health Care Act is the most important social legislation in 30 years and yet is timid, highly complex, hard to understand, long, and full of compromises.

The government has not stopped governing, but it no longer makes much law, in the classic sense. Decisions are made by administrative agencies in the form of regulations, by administrative law judges in their determinations, by federal judges hearing lawsuits against federal agencies, by congressional subcommittees (and even individual members) in appropriations bills, riders, earmarks, and filibuster threats, by the administrators who negotiated contracts with private organizations that implemented most federal policies, by the same contractors in their own policies and procedures, and by state and local officials, who now were deeply implicated in national policy—thanks to large federal grants—and who often had similar powers to their counterparts at the federal level.

A new public philosophy justifies this system. Lowi characterizes this philosophy as:

a. pluralism, and
b. interest-group liberalism

where (a) is a theory that explains and justifies an actual regime called (b).

Pluralism is the belief that

  1. there are multiple organized interest groups in society, each defined by some fixed end (E.g., the NAM, the NAACP, the AFL-CIO, the Democratic Party, etc.)
  2. each interest group represents its members and promotes their interests. Thus what the leaders say could be said by any member. Lowi, p. 51: “Organized interests are homogeneous and easy to define.”
  3. in the long run, everyone has a group to represent him or her—because if there is no group, one will form.
  4. policy is the result of ongoing negotiation among these interest groups. One can measure inputs (votes, campaign contributions, etc.) and outputs (policies) and construct models to explain “politics”
  5. we have a polyarchy, not an oligarchy or dictatorship, because no one dominates the negotiations.
  6. all groups are morally on the same footing (except perhaps for some fringe ones). Pluralism is value-neutral.
  7. there is no knowable public good or common interest that should trump interest-group negotiations
  8. it is good to have:

a) more rather than fewer groups
b) easy entrance and exit
c) competition for membership
d) peaceful negotiation

What are some alternatives to pluralism?

  1.  Majority rule by individuals (not pressure by groups)
  2. Strong rule of law
  3. Public deliberation about an “appropriate public philosophy” (Lowi, p. 50)

Interest-group liberalism tries to implement or realize pluralism, with the additional goal of getting everyone represented and bolstering the weaker parties in negotiations.

It likes negotiated “stakeholder agreements,” and likes to give them the force of law. (Consider the OSHA example on p. 118).

It prefers government by regulatory agencies to lawmaking by Congress. [What is the difference between a regulation and a statute? What are some regulatory agencies?] Why this preference?

  • because pluralists have no faith in deliberation, so they see no difference of principle between a debate in Congress and a negotiation within the FTC
  • because inflexible statutes would cut short negotiation or raise the stakes unacceptably high (p. 93)
  • because statutes are finite in length, hence simple, whereas the results of multiplayer negotiations need to be extremely complex
  • because organized interest groups can operate well within the regulatory process. They hire people to read the Federal Register and CFR, to file public comments, to produce evidence and testimony, to contest and appeal decisions. They are relatively weak in Congress, where ordinary citizens have more clout.
  • because the modern process of statutes, plus regulations, plus judicial appeal gives lobbyists many bites at the apple
  • because Congress can pass unobjectionable statutes and let appointed experts make the tough calls. For example, the Federal Power Commission is supposed to set “just and reasonable rates” for power; the FCC is supposed to license broadcasters who serve the “public interest, convenience, and necessity,” the Agriculture Department is supposed to maintain farmers’ incomes, ensure reasonable prices for consumers, and serve the public interest. Congress gets the credit for promoting all these incompatible values, and “investigates” agencies for doing unpopular things.

Since regulators lack a popular mandate, how do they get legitimacy to make value-choices?

  1. from science—but there is no scientific answer to a question like: “what is safe?” Or “what is good broadcasting?” Or rather, there are scientists on both sides of each issue.
  2. by imposing consensus standards developed by industry (Lowi, p. 118)—but these standards may be too lax or may simply exclude competitors
  3. by being completely ad hoc (p. 118)—but then there can be no predictability or learning. (cf. Hayek)
  4. through net-benefit maximization—but this implies utilitarianism, which is not an acceptable public philosophy
  5. through interest-group intermediation

The modern process boils down to 5.

Criticisms of Interest-Group Liberalism

  1. democratic legitimacy is undermined
  2. public accountability is lost, because it is never clear who is responsible for a policy, and it is impossible for citizens to follow many concurrent regulatory processes
  3. corruption is easy
  4. there is no planning or learning
  5. as a result of 4, government is highly ineffective, yet very intrusive
  6. there is no predictability, so freedom (in Hayek’s sense) is lost
  7. “market failures” are common, as special interests prevail over general ones (p. 58).
  8. value issues are concealed
  9. inequality is rife, because some groups are easier to organize than others, and some members are better represented than others by the organizations that speak for them

Lowi’s solutions:

  1. revive the Schecter doctrine (a law is unconstitutional if it delegates basic decisions to agencies)
  2. veto vague or inconsistent bills
  3. promulgate clear and general administrative regulations. (True, regulators lack legitimacy. But if they pass a clear law that Congress doesn’t like, Congress can overrule them.)
  4. codify (“systematize, digest, and simplify all the provisions of the law relating to a particular subject”—p. 305.) Then administrative decisions would be merely a first step, subject to later codification.
  5. sunset laws

Other solutions

6. deregulation (laissez-faire)
7. federalism

Dorf and Sabel’s Constitution of Democratic Experimentalism

These authors believe that the system that Lowi describes is an inevitable consequence of the complexity and division of modern society. The classic view of government is unworkable. P. 4 “our national affairs are too complex, diverse, and volatile to be governed by lapidary expressions of the public will … [and] our national life is so fractious that declarations of sovereign intent general enough to be workable open the way to divergent, often self-interested, interpretations.”

They argue that the New Deal state emerged in imitation of vast, vertically integrated firms (e.g., General Motors). These firms were seen as maximally efficient because of economies of scale and centralized control that prevented smaller units from blocking progress. But they were threats to democratic values. Thus the government adopted similar forms to check capitalism—regulatory and administrative agencies organized like GM.

But GM and its ilk were actually inefficient and sclerotic. Ultimately, they were defeated by Toyota and other firms that decentralized decision-making by empowering small work teams to contract outside the firm and to set their own strategies for exceeding benchmarks.

If we think of governance on the Toyota model, it would mean radically decentralizing decisions to communities and voluntary groups, who would be required to share information and comply with democratic principles. This is “directly deliberative polyarchy.” It is better than centralized government by statute because “effective government services and regulations must be continuously adopted and recombined to respond to diverse and changing local conditions” (p 49).

According to classic theories, state and market are fundamentally different. Each government agency has exclusive jurisdiction, a single goal, and is accountable to the whole public. Each firm is competitive and its leaders maximize the firm’s profit. But in reality, government officials compete within vague, changing, and overlapping areas of jurisdiction, and firms are “huge, cooperating organizations under the control of managers responding first and foremost not to markets, but to the enticements and threats of one anther …” (p. 313). Markets and states are alike, and a good reform strategy is to improve the beneficial features common to both.

Dorf and Sabel argue that this practical approach to governance is consistent with pragmatist epistemology, which is skeptical about first principles, expects unintended consequences, and denies distinctions between ends and means or facts and values. These are “constitutive feature[s] of thought and action, and not … unfortunate incident[s] of modern political life.”

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About Peter

Associate Dean for Research and the Lincoln Filene Professor of Citizenship and Public Affairs at Tufts University's Tisch College of Civic Life. Concerned about civic education, civic engagement, and democratic reform in the United States and elsewhere.