The myth of accountability and the anti-administrative impulse.

• Author: Rubin, Edward L.

The idea of accountability is very much in fashion in legal and political thought these days. To be sure, the term is used in a variety of different ways, but that is the nature of fashion. Colored cloth ponchos may be in fashion this season, for example, but they can be shaped and colored in a variety of different ways. It is differences of this sort that sustain a fashion trend. If the only poncho available were red and square, the fashion trend would display an impressive unity, but it wouldn't last very long. In order to make sales, clothing designers need a style that is recognizable but vague enough to include a lot of variation. And once this style takes off, gaining popularity from the many different designs available within it, the manufacturers can cash in by taking the tired old designs that weren't selling last year and producing them as colored ponchos. It is pretty much the same with accountability.

Accountability can be roughly defined as the ability of one actor to demand an explanation or justification of another actor for its actions and to reward or punish that second actor on the basis of its performance or its explanation. This Article focuses on two of the leading uses of this term in contemporary scholarship, two uses that have contributed heavily to the current fashion for accountability. The first is based on the idea that elected officials--legislators and the chief executive--are accountable to the people, while officials who obtained their position by appointment or examination are not. (1) From this, some observers have concluded that authority should be shifted to elected officials: that policy decisions should be made by legislators, not administrators, that all administrators should be controlled by an elected chief executive, and that the federal government should not intrude on the authority of elected officials in the states. The second use of accountability is that local institutions are more accountable to the people or that people should be given the opportunity to be accountable for themselves. (2) From this, other observers have concluded that authority should be devolved from the central government to localities and individuals, and that policy should be made by officials at the local level or by private parties.

Some of the proposals that have been associated with these two ideas of accountability have obvious merits, some have subtle merits, and some have obvious or subtle demerits. Very few of them, however, have very much to do with the concept of accountability. Invocation of this concept confers a certain cachet on these proposals--it makes them fashionable--but it neither justifies nor illuminates them. One goal of this Article to is reveal the conceptual and empirical defects in these two uses of accountability. The ideas of shifting authority to elected officials and devolving it to localities and individuals will not be critiqued in general, although there is much to be said on this subject. Rather, the argument is that neither of these two ideas is entitled to invoke the notion of accountability. They are old, frumpy garments, and we should not allow them to disguise themselves as modern by taking on the external appearance of a current fashion.

One would expect that a discussion of these two disparate uses of accountability would necessarily be a bifurcated one. After all, the idea that elected officials are accountable rests on the principle of election, where one chooses another to express or represent her views, while the idea that local institutions and individuals are accountable rests on the principle of devolution, where power is shifted to local institutions or private parties so that people make their voice known more effectively or take responsibility for their own actions. But these concepts, although divided in their rationale, are unified in their most serious defect. What they share is a preanalytic hostility to the modern administrative state, an anti-bureaucratic pastoralism that feeds on nostalgia for simpler, more integrated times. (3) The instinct is understandable, but it represents a genuine intellectual sin because it distracts our attention from the government we actually possess. That government can be altered and improved, of course--sometimes in the ways that the proponents of accountability suggest--but there is no foreseeable possibility that it will undergo an essential alteration, and none of those who express hostility toward it have advanced any realistic scenario by which such an alteration could occur. Any proposal that avoids this ineluctable reality of modern government runs a serious risk of doing more harm than good. (4)

Because the two approaches to accountability share the same defect, a criticism of them on the basis of this defect can generate the unified theory of political-legal accountability that their more fashionable uses fail to provide. (5) One reason that these anti-administrative ideas about elections and participation invoke the term accountability, apart from its cachet, is that they are attempting to expropriate a concept that is essentially administrative in nature, to inoculate themselves against administrative realities by adapting some of those realities for their own anti-administrative purposes. As stated, both approaches spring from the observer's unanalyzed hostility to the administrative state. But true accountability, in the realm of law and politics, involves many of the features that are central to the administrative state and that people find so unattractive about it--hierarchy, monitoring, reporting, internal rules, investigations, and job evaluations. Far from being the warm and fuzzy notion that some of its proponents seem to envision, accountability flows along the complex, hierarchical pathways that structure modern government, and reveals the managerial mechanisms of a people who are, in Genet's words, "no longer childlike but severe." (6)

Part I of this paper critiques the idea that accountability can be secured by elections. Part II critiques the idea that it can secured by devolution to localities or private parties. Part III then presents the remaining and, it will be argued, only coherent concept of accountability and argues that it is intrinsically bureaucratic or administrative in character.

1. ACCOUNTABILITY AND ELECTIONS

   As just discussed, accountability clearly means something distinctly different, at the operational level, when used as argument for the authority of elected officials, than it does when used as an argument for devolution to localities or private parties. But the election-related arguments for accountability, although they are readily distinguished from the devolution-related ones, do not display any particular conceptual unity among themselves. There are at least three such arguments: first, that legislators, being elected officials who are accountable to the people, should make basic policy decisions and not delegate extensive authority to administrators; (7) second, that the president, being an elected official who is accountable to the people, should control all executive agencies, including those that are currently independent; (8) and third, that elected state officials, because they are accountable to the people, should not be subject to policy control by the federal government. (9) For convenience, these arguments can be divided into two separate sub-categories, the first involving federal officials and their control of the bureaucracy, the second involving state officials and their relationship to the federal government as a whole. These will be considered in turn.

   1. Federal Officials and Control of the Bureaucracy: The Nondelegation and Unitary Executive Arguments

      Even within the subcategory of accountability arguments that involve elected federal officials, the arguments themselves are not consistent. The idea of legislative accountability opposes open-ended delegations of authority to administrative agents, but the idea of presidential accountability derives its justification from the existence of such delegations and the need for an elected official to control their exercise. To put this another way, more detailed and definitive legislation would place agencies under greater Congressional control and thus detract from the president's ability to guide these agencies in furtherance of his policy objectives. This contradiction already points to a certain vagueness and instability in the concept of accountability. Despite this conflict, however, the two arguments are united in their primary defect. Both rest on the assumption that elections provide accountability, that is, that an elected official must answer to his constituents for his actions. A realistic, contemporary consideration of elections suggests that this relationship to accountability, although not entirely absent, is a relatively minor aspect of the electoral process.

      One of the most important functions elections do serve is to solve the problem of succession. (10) Dictatorships are virtually guaranteed to undergo a succession crisis with the death of the dictator, if not before; hereditary monarchies undergo such crises when the monarch fails to produce an heir or when a rival claimant exists. At best, succession crises of this sort disrupt orderly government relations; at worst, they lead to civil war. Moreover, the looming threat of a succession crisis tends to undermine the effectiveness of government. Those who aspire to succeed the ruler must build their own power base, withdrawing their resources from the collectivity, devoting their efforts to self-aggrandizement, and attracting allies to their cause. (11) This activity is often regarded as disloyal by the ruler, and with good reason, since the same actions that position someone to succeed the rule can position that person to stage a coup while the ruler is alive. Thus, these actions must be conducted clandestinely...