This article is from the source 'guardian' and was first published or seen on . It last changed over 40 days ago and won't be checked again for changes.
You can find the current article at its original source at https://www.theguardian.com/commentisfree/2017/dec/18/american-government-business-privatisation-jon-michaels
The article has changed 6 times. There is an RSS feed of changes available.
| Version 1 | Version 2 |
|---|---|
| How the American government slowly became a business | How the American government slowly became a business |
| (about 17 hours later) | |
| In the 1980s, the end seemed nigh for supporters of the US welfare state. The pitchforks were out in force. Pundits, legislators and newly politicized business and religious leaders joined Ronald Reagan in railing against the American version of what Margaret Thatcher derisively called the nanny state. But a funny thing happened on the way to the gallows. The mob got cold feet. | |
| The torch and pitchfork crowd realized they really, really liked government programs – at least the ones that benefited them directly. They liked their pensions, tax credits, healthcare, subsidies, licenses, and housing and education loans. They liked their clean air and water. They liked their safe workplaces. And they liked the fact that they could trust the food, drugs, consumer products, and financial services and instruments they purchased. What they really disliked, they decided, was the government itself – its people, its procedures, and its institutional and organizational architecture. | The torch and pitchfork crowd realized they really, really liked government programs – at least the ones that benefited them directly. They liked their pensions, tax credits, healthcare, subsidies, licenses, and housing and education loans. They liked their clean air and water. They liked their safe workplaces. And they liked the fact that they could trust the food, drugs, consumer products, and financial services and instruments they purchased. What they really disliked, they decided, was the government itself – its people, its procedures, and its institutional and organizational architecture. |
| And so, over the past 30-odd years, elected officials across the political spectrum have acted accordingly, simultaneously indulging and deceiving the American public by disassociating government goods and services from the government, at least as it has been traditionally conceived and staffed. Though these efforts have been framed, quite pointedly, in terms of decreasing the size, reach and power of government, what’s really happening is that the government is being transformed. | |
| There is no denying that the state today is bigger and more potent than ever before. It just happens to look very different – a consequence of it being privatized, marketized and generally reconfigured along decidedly businesslike lines. In short, Reagan didn’t, and couldn’t, kill the nanny state. But he did replace our old familiar nanny with a commercial upstart – a nanny corporation, as it were. | |
| Consider just some of the ways the privatized, businesslike state comports itself today. | Consider just some of the ways the privatized, businesslike state comports itself today. |
| Private contractors now number in the millions. These contractors have taken leading roles in fighting our wars in Afghanistan and Iraq. They run prisons and immigration detention facilities. They facilitate domestic surveillance and counterterrorism operations. They draft major rules, shape energy, transportation, healthcare and environmental policy and render public benefits decisions. In addition, they also collect taxes and monitor and enforce regulatory compliance across the vast administrative expanse. | |
| Government’s force, and ultimately its favor, turns on it being decidedly unlike IBM or Walmart or Facebook | Government’s force, and ultimately its favor, turns on it being decidedly unlike IBM or Walmart or Facebook |
| The stated justification for such privatization is, very often, that contractors are more efficient than their government counterparts – driven, we’re told, by market competition to provide higher-quality and lower-cost services. | The stated justification for such privatization is, very often, that contractors are more efficient than their government counterparts – driven, we’re told, by market competition to provide higher-quality and lower-cost services. |
| At the same time, government agencies are privatizing from within, radically overhauling their in-house employment practices to better match what we generally find in the private sector. Among other things, hundreds of thousands of tenured civil servants have been reclassified as at-will employees, subject to summary termination just as they would be if they were working for McDonald’s. | At the same time, government agencies are privatizing from within, radically overhauling their in-house employment practices to better match what we generally find in the private sector. Among other things, hundreds of thousands of tenured civil servants have been reclassified as at-will employees, subject to summary termination just as they would be if they were working for McDonald’s. |
| The Trump administration is pushing further still, promising to strip the rest of the career federal workforce of its legal protections. The stated justification for this overhaul – this marketization of the bureaucracy – is substantially the same: to make government workers internalize the pressures, demands and incentives of the competitive private labor market. | |
| Government contracting and marketizing the bureaucracy represent the biggest, most consequential manifestations of the contemporary businesslike government movement. But those seeking to remake the state have experimented further. | |
| They’ve created an array of intra-governmental venture capital and IT firms; transformed essential bureaucratic offices into for-profit revenue centers; converted our storied space program into something akin to a galactic Uber; established charitable trusts, allowing wealthy individuals and powerful corporations to finance and effectively direct state programs and initiatives; and created VIP prisons, posh accommodations for those able and willing to pay a hefty price to buy their way out of gen pop. | They’ve created an array of intra-governmental venture capital and IT firms; transformed essential bureaucratic offices into for-profit revenue centers; converted our storied space program into something akin to a galactic Uber; established charitable trusts, allowing wealthy individuals and powerful corporations to finance and effectively direct state programs and initiatives; and created VIP prisons, posh accommodations for those able and willing to pay a hefty price to buy their way out of gen pop. |
| This is, for better or worse, the moment we find ourselves in. Americans are (grudging) enthusiasts of government goods and services, still deeply allergic to government instruments and instrumentalities, and still very much captivated by the lures of the market. | This is, for better or worse, the moment we find ourselves in. Americans are (grudging) enthusiasts of government goods and services, still deeply allergic to government instruments and instrumentalities, and still very much captivated by the lures of the market. |
| But the state cannot be separated from its people, practices and infrastructure without doing considerable violence to our constitutional order. For it is these very (and very distinctive) people, practices and infrastructure – and the interplay among them – that legitimate the state and validate state exercises of sovereign, coercive and moral force. | |
| And it is these distinctive actors, procedures and institutions that infuse liberal democratic governance with the necessary admixture of normative politics, civic engagement, professional expertise, financial disinterest and fidelity to the rule of law. | |
| A state shorn of these constitutive people, practices and infrastructure is perhaps better described as part gated community, part corporate conglomerate. | |
| To be sure, gated communities and corporate conglomerates have their charms. And so does businesslike government. It promises to be faster, more innovative, cheaper, and more “customer” friendly – and that no doubt sounds appealing to any number of us who have endured long lines at the DMV or who have otherwise experienced wasteful, sclerotic or simply apathetic government. | |
| But even assuming that those promises can be kept (a big if), there is good reason not to embrace privatized, commercialized government. | But even assuming that those promises can be kept (a big if), there is good reason not to embrace privatized, commercialized government. |
| Government’s force, and ultimately its favor, turns on it being decidedly unlike IBM or Walmart or Facebook. Government is – and very much ought to remain – a fundamentally different enterprise. | Government’s force, and ultimately its favor, turns on it being decidedly unlike IBM or Walmart or Facebook. Government is – and very much ought to remain – a fundamentally different enterprise. |
| Businesslike government is all about embracing the logic and discipline of the market. But the market, at least in its pure, idealized state, is not democratic, deliberative or juridical. Nor need it be. It is the world of Schumpeter and Coase, not Montesquieu or Madison. | |
| We can tolerate, even admire, corporate hierarchy, leanness, and efficiency. We can do so because those organizations have (or are presumed to have) a single, objective mission: to maximize shareholder value. | We can tolerate, even admire, corporate hierarchy, leanness, and efficiency. We can do so because those organizations have (or are presumed to have) a single, objective mission: to maximize shareholder value. |
| We can tolerate, even admire, the unforgiving laws of capitalism. We can do so because only in the rarest of circumstances does the single-mindedness of individual businesses endanger our economic or national security. And we can tolerate, even admire, the rising cult of all-powerful CEOs. We can do so because, generally speaking, their word is not law, their fiefdoms are bounded, and rarely can they exert real coercive force. | We can tolerate, even admire, the unforgiving laws of capitalism. We can do so because only in the rarest of circumstances does the single-mindedness of individual businesses endanger our economic or national security. And we can tolerate, even admire, the rising cult of all-powerful CEOs. We can do so because, generally speaking, their word is not law, their fiefdoms are bounded, and rarely can they exert real coercive force. |
| None of the seemingly celebrated market norms, practices, or fiduciary and legal duties translates well into the liberal democratic arena, and certainly not into our constitutional realm. | None of the seemingly celebrated market norms, practices, or fiduciary and legal duties translates well into the liberal democratic arena, and certainly not into our constitutional realm. |
| For starters, there is no such thing as a single public goal or truth to pursue. We have no magic commonwealth formula, certainly none that’s the political equivalent to the maximization of shareholder value. | For starters, there is no such thing as a single public goal or truth to pursue. We have no magic commonwealth formula, certainly none that’s the political equivalent to the maximization of shareholder value. |
| Some of us surely prize national economic growth above all else, and those who do might be the closest approximation of corporate shareholders. But many do not. Instead, we privilege the plight of the poor and disenfranchised. We prioritize social justice or environmental causes or consider the best government to be as unobtrusive as possible. Interests in military hegemony, reproductive rights and religious freedom throw yet more, often incommensurable, variables into the mix. | |
| As such, we cannot readily reduce the goal of government to a single, undifferentiated objective; nor can we readily aggregate or harmonize our interests and channel them through one political leader, an inside-the-Beltway version of a Steve Jobs or Henry Ford. | As such, we cannot readily reduce the goal of government to a single, undifferentiated objective; nor can we readily aggregate or harmonize our interests and channel them through one political leader, an inside-the-Beltway version of a Steve Jobs or Henry Ford. |
| Rather, we need multiple voices, amplified by multiple platforms, constantly speaking to a multiplicity of decision-makers scattered across multiple branches of government. This isn’t efficient or orderly. But it is democratic, pluralistic, inclusive and deliberative. | |
| What’s more, even if we somehow could effectively aggregate, rank or harmonize our interests and direct a single leader to implement the public’s will, we still should resist the temptation to do so. We should resist for two reasons. | |
| First, absolute power corrupts, and a renegade sovereign that chooses to deviate from the public’s charge poses infinitely greater danger than does a rogue or simply tone-deaf corporate CEO. | First, absolute power corrupts, and a renegade sovereign that chooses to deviate from the public’s charge poses infinitely greater danger than does a rogue or simply tone-deaf corporate CEO. |
| Second, and more importantly, even if we could effectively aggregate the public’s interests and ensure the selection of a faithful leader, there still is the very real possibility of tyranny by the majority. That is to say, a dominant faction, or cluster of factions, might settle on a course of action that stigmatizes or oppresses broad classes of minorities. | Second, and more importantly, even if we could effectively aggregate the public’s interests and ensure the selection of a faithful leader, there still is the very real possibility of tyranny by the majority. That is to say, a dominant faction, or cluster of factions, might settle on a course of action that stigmatizes or oppresses broad classes of minorities. |
| In either case, we want, indeed need, a heterogeneous, overlapping and cross-checking government to limit the possibility of myopic or abusive exercises of state power. | |
| Sovereign power, unlike most (but of course not all) expressions of corporate power, is intentionally and necessarily morally inflected and coercive. As such, so long as men and women – rather than angels – govern, that sovereign power must be subject to checks and balances, even if such checks and balances are messy, time-consuming, and very much lend themselves to what market actors consider waste and obstinacy. | Sovereign power, unlike most (but of course not all) expressions of corporate power, is intentionally and necessarily morally inflected and coercive. As such, so long as men and women – rather than angels – govern, that sovereign power must be subject to checks and balances, even if such checks and balances are messy, time-consuming, and very much lend themselves to what market actors consider waste and obstinacy. |
| It is for this reason that the United States is founded in large part upon a simple structural commitment: the separation of powers. Separation prevents tyranny, promotes liberty, and helps enrich public policy. Separation gives voice and venue to any number of important but conflicting values and provides procedures and pathways for those values to collectively inform American public law and governance. | It is for this reason that the United States is founded in large part upon a simple structural commitment: the separation of powers. Separation prevents tyranny, promotes liberty, and helps enrich public policy. Separation gives voice and venue to any number of important but conflicting values and provides procedures and pathways for those values to collectively inform American public law and governance. |
| This simple structural commitment, and all that it enables, animated the framers’ constitutional architecture. But it didn’t stop there. This commitment carried forward into the 20th century, ultimately structuring (and legitimating) our modern welfare state. | |
| Now, however, that dynamic commitment – a commitment to separation of powers all the way forward – is very much threatened by the instant movement to render the American government more like a business – and a politicized one at that. | Now, however, that dynamic commitment – a commitment to separation of powers all the way forward – is very much threatened by the instant movement to render the American government more like a business – and a politicized one at that. |
| Jon Michaels is professor at UCLA School of Law | Jon Michaels is professor at UCLA School of Law |
| This is an excerpt from Constitutional Coup by Jon Michaels. Copyright © 2017 by the President and Fellows of Harvard College. Used by permission. All rights reserved | This is an excerpt from Constitutional Coup by Jon Michaels. Copyright © 2017 by the President and Fellows of Harvard College. Used by permission. All rights reserved |