Public oversight of public/private partnerships.

• Position: Symposium

PROFESSOR BRIFFAULT: This is the panel in which we begin to look more directly at some of the mechanisms for accountability and monitoring, a central theme of the entire Symposium. The panelists will be talking about such issues as the role of the courts, litigation, government agencies, monitoring procedures, community organizations, advocacy groups, and public interest lawyering in providing monitoring and accountability for the new organizations and hybrid organizations that are center stage in the era of privatization. These include private, quasi-private, and mixed public/private entities. These various sorts of line-blurring organizations are playing a much greater role in providing services that in recent decades had been considered public services.

Our five panelists are Jack Beermann, Professor of Law at Boston University School of Law, where his primary teaching and research interests have been civil rights litigation and administrative law; Barbara Bezdek, Associate Professor of Law at the University of Maryland School of Law, where she teaches in the legal theory and practice curriculum; Wayne Hawley, Deputy Counsel to the New York City Conflicts of Interest Board, who advises city employees on the city's ethics laws, and brings a government perspective to this panel and to this conference; Susan Sturm, who teaches at Columbia Law School after a very distinguished career at the University of Pennsylvania Law School, and specializes in issues relating to race and gender in the work place, employment discrimination, and remedies; and Louise Trubek, Clinical Director and Senior Attorney at the Center for Public Representation at the University of Wisconsin Law School, where her work emphasizes such issues as telecommunications and access to justice.

Professor Beermann?

PROFESSOR BEERMANN: Thank you very much. I was asked to be on this panel, I think, to give an overview of the issues of political accountability and privatization. I do not profess to know very much about particular privatizations, so I am going to be general, out of necessity.

In reading the legal literature on privatization, there are two different types of articles that interested me. One type discusses the kinds of legal or constitutional constraints there are on privatization, and, as part of the analysis, discusses the fact that there really are not any direct legal constraints on privatization. (1) The other type describes a particular kind of privatization and bemoans its failures, the problems it causes, and the lack of adequate checks on private governance. (2)

In my paper for this Symposium, I speculate on constitutional limits that courts might place on privatization within the context of what limits already exist, (3) and what limits may be possible. (4) I also look at the different kinds of privatization, with an eye toward modeling the way in which political accountability is affected by different kinds of privatization.

One of the big issues of privatization is the question of political accountability: Will the privatized entity or cooperative entity be less accountable through the political process?

I think it is important always to separate the market accountability question from the political accountability question, because the two kinds of accountability are radically different. I will talk about that a little bit later.

The first thing then, is to define "political accountability." I define political accountability very simply as amenability of an action or activity to monitoring and control through the political process. (5) That is a circular definition, I know, but it includes the clarification of lines of responsibility, that is, who is responsible and to whom one goes to try to change a particular action. Also, it addresses more specifically the ability to get information, the applicability of legislation like the Freedom of Information Act, (6) and administrative, procedural constraints on accountability.

Now, I tend to be somewhat of a pessimist when analyzing legal institutions, and so it is tempting for me to look at this issue through a "public choice" lens (7) and question whether public sector resistance to privatization is explained by fear on the part of government officials of losing the power they get through patronage and through all the other sorts of things that make government inefficient. There are many discussions from a public choice perspective about why government is so inefficient, (8) and about patronage problems and the aspirations of government officials toward profitable work in the private sector. (9) These things combine to make it unrealistic, according to public choice theorists, to expect that government will ever do anything well.

However, it is risky to rely on public choice criticisms of government to argue for privatization because under public choice assumptions, we should assume that the same distortions in the political process that make much government regulation inefficient will affect the decision whether and how to privatize. This is because it is government officials who decide whether and how to privatize. Public choice analysis would assume that they will privatize only when it is in their interests to do so, (10) i.e., when the gains to the government officials from privatization (in terms of political or economic support from beneficiaries of privatization) outweigh any losses to the officials, perhaps in reduced support from organized labor and reduced control over patronage appointments to government positions.

There is also this notion that when something is privatized, the government official is hoping to get some sort of campaign support or a good job after government service. This is a very common problem with the public sector, the movement from government to the private sector in which regulators obtain lucrative employment from the groups they formerly regulated. In wondering why regulators treat regulated industries so well, it is because otherwise they would never get those lucrative jobs after their government service.

Therefore, because the government decisions to privatize are likely to be made for the same reasons that the public choice movement cites to criticize government generally, the case for privatization cannot be made by simply pointing out all the problems that government has in acting efficiently and effectively. It is important to look at each privatization proposal on its own merits, and perhaps hope for the best.

So assume for the sake of discussion that there is less--or less clear--accountability when you have a privatized activity, in very general terms, than when an activity is within government. The question that I have is whether this raises a constitutional question. In other words, does the Constitution require clear lines of political accountability and does the Constitution require that government activity be amenable to control through the political process?

There is some state law that very directly addresses this question. (11) There is even one state, at least, that has an accountability clause in its constitution, requiring that the government activity remain accountable. (12)

However, I am going to focus more on federal law, because that is what I know more about. There are some possible federal constraints on privatization, such as the Appointments Clause of the Constitution, (13) which requires that only properly appointed officers of the United States may exercise the power of the United States government. (14) And appointments, obviously, are political, so there is a very direct political control there on government activity.

There is also the presidential removal power (15)--or, at least, executive branch removal power (16)--an implied limitation on the structure of government recognized by the Supreme Court, stating that to completely shield people exercising government power from removal within the executive branch would at some level violate separation of powers. (17)

There is also the nondelegation doctrine, (18) which might disallow discretionary decision-making by private groups. (19) Since no statute has been invalidated by the Supreme Court on nondelegation grounds since 1936, some relatively moribund precedents would have to be revived, but the potential is there in old cases like Carter Coal. (20) At the state level, there may be some Guarantee Clause issues, (21) although that is an unenforced constitutional norm. You could imagine a situation in which the state tried to have, for example, a private police force or private administrative agency. These might be held to violate some sort of a Guarantee Clause norm, that the guarantee of a "Republican Form of Government" requires that certain government functions, such as these, be carried out by actual government officials.

There is also the constraint of liability. That is, privatized groups such as private prisons, for example, often are treated just as if they are government, and so they are held to the due process (22) and cruel and unusual punishment norms (23) to which government prisons are held. And they are even worse off because, according to the Supreme Court, their officials are not entitled to the immunities that government employed officials would have. (24) So there is that kind of constraint.

But I am thinking that maybe we could imagine a pure accountability doctrine, a pure doctrine looking at the political accountability of something and finding that if it is a government entity that is not sufficiently politically accountable, it will be struck down, held unconstitutional, or be constitutionally regulated on those grounds.

I think that the way in which anticommandeering norms under current Tenth Amendment doctrine (25) developed parallel the manner in which an accountability based limitation on privatization might develop. At one time, there were specific limitations on federal regulation of the states under National...