Holding "governance" accountable: third-party government in a limited state.

• Author: Kennedy, Sheila Suess

Public-administration scholars and schools of public affairs increasingly use the term governance to describe the processes they study and teach. Governance, rather than the older word government, is thought to be a more accurate descriptor of the reality of contemporary state structures, where an every-increasing percentage of the state's work is outsourced to for-profit, nonprofit, and faith-based organizations.

The reasons for this growth in "government by proxy" are varied, but all are rooted in a distrust of government and an often-reflexive preference for markets or civil society. Those who hold that reflexive preference fail to recognize that contracting out is not "privatization," properly understood; that is, the choice of private surrogates to deliver services on behalf of government agencies obscures but does not alter the fact that government is choosing, directing, and paying for those services. (Reflexive opponents of contracting, however, fail to recognize that often the choice of a private intermediary will provide needed flexibility or expertise.) Whatever the merits of these opposing ideological positions, my objective in this article is to suggest that before policymakers and public managers accept third-party government as a fait accompli, to be reconceptualized and relabeled accordingly, those concerned with constitutional principles grounded in a conception of limited government think long and hard about the implications of these practices--not just for public administration, but for the very notion of a limited state.

Scholars and practitioners have focused significant attention on the fiscal and political accountability implications of outsourcing, but with few exceptions they have paid little attention to the growing disconnect between the new "governance" paradigm and the basic constitutional norms that have structured U.S. government and public management for two hundred years. Although the literature on privatization and the "reinvention" movement is copious, it has dealt almost exclusively with the management challenges and fiscal accountability issues raised by contracting. More recently, serious scholarly attention has turned to the effects of outsourcing on government's nonprofit partners and to concerns about the transformation of organizations within the voluntary sector that results from their increasing dependence on government dollars. Public administration and political theory scholars have paid little attention to the constitutional implications of government by proxy, however, and that neglect is troubling because these issues are foundational. Public administration is grounded in constitutional values; political efforts to keep government responsible and accountable--politically, fiscally, and constitutionally--depend on the ability to identify government and to recognize when the state has acted. "Governance" may be robbing citizens of the ability to make that crucial threshold identification.

The Constitutional Bases of Public Administration

Woodrow Wilson wrote that "it is getting to be harder to run a constitution than to flame one" (Rohr 1986, 1, emphasis in original). "Wilson meant to call attention to the importance of constitutional values for questions of administrative legitimacy and to the dangers of forgetting that critical link under the pressures of day-to-day management challenges.

John Rohr, David Rosenbloom, and other public-administration scholars have emphasized the normative role played by the constitution. In the introduction to Constitutional Competence for Public Managers, Rohr writes: "[W]e are witnessing the gradual reintegration of constitutionalism and public administration. I say reintegration because of the obvious connection between public administration and constitutionalism in The Federalist Papers. So integral was administration to the intent of the framers that the authors of The Federalist Papers made more frequent use of the word administration and its cognates [than] they did of the words Congress, President or Supreme Court" (Rosenbloom, Carroll, and Carroll 2000, xiii). The book itself makes explicit the connection between "public values" and the "daily decisions and operations of public managers" (xvi).

Political theorists and public administrators alike emphasize the importance of legitimacy, defined as operational rules rooted in constitutional norms, to public administration. As Michael Spicer has noted, "in the absence of consensus surrounding the role of government, bureaucracy becomes increasingly seen simply as a tool by which some groups gain benefits and privileges at the expense of others" (1995, 4). A legitimate exercise of authority, no matter how coercive, is different from the exercise of raw power unrestrained by adherence to codes of normative values, and it is seen differently by members of the polity. That difference is especially critical to those on the "front lines" of state and local government, who must make and implement policies that are anything but abstract to the citizens they affect.

The importance of tying public-administration practices to constitutional values springs from the central question of both political philosophy and public administration: What is the role of the state, and how should that role be managed? What convictions should animate public service, and how should that service be defined? The U.S. Constitution incorporates specific understandings of human nature, the role of the state, and natural rights. Those understandings led the Founders to limit the power of the state sharply. The original American concept of liberty was framed in the negative: liberty was seen as an individual's right to be free from state control, subject only to the equal rights of others.

To limit government, however, one must first define it. Increasingly, such definition is problematic. D.D. Raphael (1990) has summarized the contemporary idea of the state by defining it as "an association having universal compulsory jurisdiction within territorial boundaries" (qtd. in Kennedy 2001, 205). The two elements of that definition--territoriality and a monopoly on the right to use certain types of force or power--are arguably integral to popular understanding of the concept of statehood or government. Both are undergoing redefinition.

That redefinition cannot be attributed solely to the growth of contracting out, of course. In industrialized nations, and perhaps elsewhere, the growth of the global economy and the worldwide penetration by the Internet are increasingly...