Section One: Introduction
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—among other things—an ever-increasing percentage of the work of the state is outsourced to for-profit, non-profit and faith-based organizations. (Frederickson 1997; Garvey 1997; Kettl 2000; Milward and Provan 2000; Pierre and Peters 1998; Salamon 2002; Hill and Lynn 2004).
The reasons for this growth in “government by proxy” are varied, but among its roots are Americans’ historic distrust of government and often-reflexive preference for markets and/or civil society. What many of those holding that reflexive preference fail to recognize is 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. For their part, reflexive opponents of contracting often fail to recognize that often—certainly not always, but often—the choice of a private intermediary will provide needed flexibility or expertise. Whatever the merits of these opposing ideological positions, this article is intended to suggest that—at a time that policymakers and public managers increasingly accept third-party government as an administrative norm—those concerned with the delivery of public affairs educational programs think long and hard about the implications of these practices—not just for public administration, but for a pedagogy that is grounded in specific constitutional norms.
Scholars and practitioners have focused significant attention on issues of fiscal and political accountability raised by outsourcing, but with few exceptions have paid little attention to the growing disconnect between the new ‘governance’ paradigm and the basic constitutional norms that have structured American government and public management for two hundred years. While the literature generated by 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, scholarly attention has turned to the effects of outsourcing on nonprofit partners of government, and concerns about the transformation of organizations within the voluntary sector resulting from their increasing dependence on government dollars (Smith, 2006).
Public administration scholars have paid comparatively little attention to the constitutional implications of government by proxy, however, and that is a troubling omission, because the issues here are foundational. Public administration in the United States is grounded in a very specific constitutional regime, a regime that begins by placing certain limitations upon actions that may be taken by the state. Efforts to keep government responsive and accountable—politically, fiscally and constitutionally—thus depend upon our ability to identify government and government actors, and to recognize when the state has acted. “Governance” may be robbing citizens and public managers alike of the ability to make that crucial threshold identification.
This article expands upon the current governance literature in at least two respects. It details the relationship between the ongoing blurring of the sectors and longstanding expectations for constitutional government practices. It recommends a pedagogy of governance focused upon two standard administration and public management topics—democratic institutions and free-market capitalism—grounded in values that are often seen as competing. We argue the need to develop a greater appreciation of the field’s constitutional foundations while acknowledging the strengths of and preferences for markets, and we go a step further by specifying how this approach can assist public managers tasked with responsibility for contracting-out. We conclude by acknowledging the challenges inherent in such an approach.
The article proceeds as follows: Section Two discusses the Constitutional Bases of Public Administration. It describes the ways in which the evolution of third-party government has obscured both the actual scope of government activity and the identity of government actors, and makes the point that these evolving modes of service delivery present significant (and often-unrecognized) problems for constitutional and political accountability. Section Three argues that clarity and accountability are both essential if state exercise of authority is to be consistent with liberal democratic and constitutional principles. A brief review of the roots of State Action jurisprudence illuminates the pitfalls long recognized by legal scholars, but too often underappreciated in the public administration literature (Gilmour and Jensen 1998). Section Four sketches out the Pedagogical Implications of this state of affairs, and advocates an approach to developing an appreciation of the scope of the problem and addressing it within the public administration curriculum. In Section Five, we address the Challenges for both educators and practitioners that inheres in such an approach.
Section Two: The Constitutional Bases of Public Administration
Woodrow Wilson wrote that “it is getting to be harder to run a constitution than to frame one.” (Rohr 1986:1) Wilson meant to call attention to the importance of constitutional values to questions of administrative legitimacy, and 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. As Rohr wrote in an introduction to Constitutional Competence for Public Managers (Rosenbloom, Carroll and Carroll 2000)
[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 they did of the words Congress, President or Supreme Court. (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.” (Spicer 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 our teaching of public administrative practices to constitutional values rests in 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 are the convictions that should animate public service, and how should that service be defined? The United States Constitution rests upon very specific understandings of human nature, the role of the state and natural and human rights. Those particular understandings and the philosophical commitments that flowed from them led the founders to sharply limit the power of the state. Those limitations were both substantive and procedural. The original American concept of liberty was in the negative: liberty was seen as an individual’s right to be free from state control or interference, subject only to the equal rights of others, so long as one did not harm the person or property of non-consenting others. Even in those areas where government could legitimately impose rules, citizens had a right to demand clarity and specificity sufficient to permit the reasonable individual to know what actions were being proscribed (hence the “void for vagueness” doctrine).
In order to limit government, however, one must first define it. And such definition is becoming increasingly problematic. D.D. Raphael summarized the contemporary idea of the state by defining it as “an association having universal compulsory jurisdiction within territorial boundaries” (Kennedy, 2003:205). 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—of government. Both are undergoing redefinition, and our students ignore that redefinition at their peril.
The changing nature of governing institutions 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 of the Internet are increasingly challenging traditional notions of territorial jurisdiction. In America, the steady expansion of government since the New Deal has already required us to rethink the relationship between government power and fundamental rights. As previously noted, in the American system, rights were traditionally defined as limitations on the coercive power of the state; today, lawyers and political philosophers speak of both negative and positive liberties and debate the propriety and nature of affirmative “entitlements.” The advent of widespread contracting, where a growing number of services are provided by and paid for by government but delivered by contractors, has raised a host of new questions: are partnerships with businesses and nonprofit organizations creating a new definition of government? Is ‘privatization’ (understood as government contracting) extending, rather than shrinking, the state? Does the substitution of an independent contractor for an employee equate to a reduction in the scope of government, as proponents apparently believe? Or does the substitution operate instead to shift the locus and visibility, but not the scope, of government activity (Kettl 1993; Smith and Lipsky 1993), and thereby blur the boundaries between public and private, making it ever more difficult to decide where “public” stops and “private” begins? Given the growing complexity of government agencies and public/private relationships, can we even tell the difference between a contractor and an employee? When is it necessary to draw that distinction? If we are altering traditional definitions of public and private, employee and contractor by virtue of these new ‘governance’ relationships—turning for-profit and non-profit organizations into unrecognized arms of the state—what is the effect of these alterations on a constitutional system that depends upon the distinction as a fundamental safeguard of private rights? If the constitutional system is being altered, what are the implications for political theory and public management? And finally, in the midst of what might be characterized as a “paradigm shift,” what are the responsibilities of public administration educators?
Section Three: State Action and Constitutional Accountability
However we understand government, a central tenet of public administration theory in democratic regimes is that the state must be accountable to its citizens. Contracting out complicates accountability in a number of ways (Gilmore & Jensen 1998). Smith and Lipsky were among the first to explore some of the issues for the nonprofit sector inherent in the transfer of state power to private providers (Smith and Lipsky 1993); more recently, legal scholars have addressed the issues of constitutional accountability raised by the emergence of what some now call “third-party government” (Minow 1999, Kennedy, 2001, Metzger, 2003).
One traditional way to enforce government accountability is through the courts. But just as a lack of transparency in contracting relationships can impede political accountability, the failure of state action jurisprudence to keep pace with the political reality of government contracting—the inability of current legal theory to draw clear distinctions between public and private action for purposes of assessing government responsibility—has significantly undermined constitutional accountability. We are in danger of losing an important constitutional check on the exercise of government power, because we rely upon our understanding of the state action doctrine in order to know when we may ask the courts to restrain government actors. If we do not have comprehensible rules defining who those actors are and what sorts of actions we may legally attribute to the state, the efficacy of constitutional litigation is undermined. If we are unable to convey to citizens the boundaries of government’s legal responsibilities, our ability to fashion appropriate political remedies will also be compromised. And if we are unable to describe with any specificity the actions that might lead to governmental and/or personal liability, we cannot adequately prepare public administration students for the duties they will assume.
In order to understand the dimensions of this problem, and its (underappreciated) importance to public administration managers and educators, it is necessary to engage in a brief review of the genesis and early development of the state action doctrine. “State Action” was first defined by the Supreme Court in 1883, in the Civil Rights Cases (1883). Passage of the Fourteenth Amendment had prohibited states from denying, to persons otherwise entitled to them, the “privileges and immunities” of citizenship. The Court was addressing the scope of that prohibition.
“The Fourteenth Amendment expresses prohibitions (and consequently implies corresponding positive immunities), limiting State action only, including in such action, however, action by all State agencies, executive, legislative, and judicial, of whatever degree…Individual invasion of individual rights is not the subject-matter of the amendment. (Civil Rights Cases 1883:3).
As the Court recently restated the doctrine,
“[E]mbedded within our Fourteenth Amendment jurisprudence is a dichotomy between state action, which is subject to strict scrutiny under the Amendment’s Due Process Clause, and private conduct, against which the Amendment affords no shield, no matter how unfair that conduct may be (National Collegiate Athletic Association v. Tarkanian 1988:.191).
The Court has thus established a distinction between invasions of rights that are constitutionally forbidden (“public” invasions) and those that are not (“private” invasions), and that distinction rests upon the identity of the actor. As one legal scholar has noted, “a central premise of U.S. constitutional law is that the Constitution imposes limits on the actions that governments can take.” The corollary premise is that “the rules governing private actors should be politically, rather than constitutionally, determined.” (Metzger 2003:1373)
The Bill of Rights was initially designed to limit the reach of the federal government; the Fourteenth Amendment later extended those limitations to bar similar action by the states. Over the years, by the process known as “selective incorporation,” most of the provisions of the original eight amendments have been held to apply to state and local government units as well as to the federal government, (Twining v. New Jersey 1908; Palko v. Connecticut 1937; Adamson v. California 1947; Berger 1977; Ely 1980). But the citizen’s protection is against the public actor only. Discriminatory acts, or denials of due process, or restrictions on speech by private parties, are all constitutional; indeed, they are entirely legal unless prohibited by virtue of legislation like the Civil Rights Act of 1964 or the Americans with Disabilities Act.
This distinction between public and private acts loses clarity in a number of contexts (indeed, it has been referred to as a ‘conceptual truth’) (Stone, Seidman, Sunstein & Tushnet 1986:1467). Accordingly, the Court has been obliged to develop rules allowing certain private acts to be attributed to government. As Robert Gilmour and Laura Jensen (1998:247 ) have noted,
“When the relationship between government and citizen becomes more complex than that between a mere commodity or service provider and its customers, more than marketplace efficiency is required to hold the government and its proxies and surrogates accountable for their exercise of authority on behalf of the state.”
Acknowledging the need for such rules and actually fashioning them have proved to be very different matters. As one commentator has wryly noted, the Court’s ‘sifting’ and ‘weighing’ in state action cases “differs from Justice Stewart’s famous ‘I know it when I see it’ standard for judging obscenity mainly in the comparative precision of the latter ” (Brest 1980:1296-1330). On one hand, the mere fact that a regulatory agency exercises oversight of a licensee and has thus implicitly approved the licensee conduct at issue has been held insufficient to attribute an action to the state (Jackson v. Metropolitan 1974). On the other hand, where government intentionally funds an unconstitutional program conducted by private actors, the Courts have generally—but certainly not always—found state action (Norwood v. Harrison 1973).
As many have noted, the current state action jurisprudence is incoherent; as the court has struggled with cases presenting different factual situations, the major casualty has been the very predictability that law is intended to provide. Worse, in an increasing number of situations, government contracting can provide a handy mechanism for evasion of the limits imposed by the Bill of Rights. As the dissent in one case noted,
“[T]he State can shield its legislation affecting property interests from due process scrutiny by delegating authority to private partners” (Flagg Bros. v. Brooks, 169: 153).
By the end of the twentieth century, as government increasingly delivered services through private and not-for-profit entities, the application of the doctrine became more complicated still. Blum v. Yaretsky, decided in 1983 is an excellent example of the counter-intuitive results of state action litigation. The case involved an alleged due process violation arising out of involuntary discharges and transfers of Medicaid patients in a nursing home. Rhenquist, writing for the Court, declined to find state action on the grounds that “…a state normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.”(1012)
Acknowledging that over 90% (and perhaps as many as 99%) of the patients in the facility were Medicaid patients, and that the nursing home was subject to pervasive governmental regulation, the Rhenquist majority nevertheless held
“That programs undertaken by the State result in substantial funding of the activities of a private entity is no more persuasive than the fact of regulation of such an entity in demonstrating that the State is responsible for decisions made by the entity in the course of its business.” (1004)
In dissent, Justice Brennan underscored the superficiality of this analysis.
“[N]ot only has the state established the treatment levels and utilization review in order to further its own fiscal goals, but … the State [has] set forth precisely the standards upon which the level-of-care decisions are to be made, and has delegated administration of the program to the nursing home operators, rather than assume the burden of administering the program itself.” (1013)
In the years since, the case law has only become more unpredictable and opaque. Courts have not hesitated to find state action in private prison and institutional detention cases (Blumel v. Mylander, 1996), often noting that the power to deprive an individual of liberty is a quintessentially governmental power (Plain v Flicker, 1986). This line of reasoning is persuasive, but difficult to reconcile with cases like Wade v. Byles, where a private company providing security to a public housing project was held not to be a public actor despite the fact that the guards had authority to carry guns, arrest people, and use deadly force.
Complicating matters even further is the tendency of reviewing courts to apply different standards of analysis depending upon the nature of the constitutional right involved, generally without articulating the basis for those differences. Commentators have noted that, in cases involving racial discrimination or religious liberties, the Court has been much more willing to find—or assume—state action. (Finding a violation of the Establishment Clause requires the presence of state action, whether that requirement is articulated or not, since a private party cannot violate the constitution.) Some scholars have argued that the courts are more likely to find State Action in Fourteenth Amendment Equal Protection cases than in cases alleging breaches of due process (Kennedy, 2001).
If state action jurisprudence is so complicated that lawyers often disagree on the presence or absence of governmental liability for particular actions, how can we teach students who will go on to be state and local managers to avoid outsourcing practices likely to embroil them in litigation? How can citizens, or corporations doing business with government agencies, know when the state has acted unconstitutionally—or even know when the state has acted—when increasingly, even organizations doing business with the government are unaware of the legal implications of those contracting relationships?
A case arising out of an election in Terre Haute, Indiana, is perfect example of the “sectoral blurring” that has increasingly led to an inability to identify both public actors and relevant rules. In 2007, the town held municipal elections, and voted in a new mayor, Duke Bennett, who defeated the former mayor, Kevin Burke. Shortly after the election, Burke sued to have Bennett declared ineligible to serve, citing the provisions of Indiana’s Little Hatch Act prohibiting government employees from engaging in certain political activities. The trial court issued a somewhat convoluted ruling in which it affirmed the applicability of the statutes involved, but found that the election essentially had “cured” the problem, as Bennett by that time had taken office, and no longer held the position that had rendered him ineligible. Burke appealed.
The Indiana Court of Appeals reinstated the suit, ruling that Burke had been ineligible to run and was therefore not entitled to assume office. The appeals court did not stop there, however; it also ruled that Burke could not be declared the winner of the election either, since voters had not been informed that Bennett was ineligible. Bennett has appealed, and at this writing, the dispute is pending in the Indiana Supreme Court.
The case raises significant issues of federalism and even more significant (and troubling) evidence that the line separating public and private is rapidly becoming indecipherable, lost in a tangle of outsourcing, contracting, public-private partnerships and the like.
The facts as the Court of Appeals described them were as follows: In 2005, Bennett had begun employment as Director of Operations at Hamilton Center, a local nonprofit established primarily for the purpose of providing behavioral health services. In 2007, the Center opened a Head Start program, for which it received a grant from Health and Human Services. (In 2007, the amount of the grant was $861,631.) Of that amount, $125,789 was for the Head Start program’s proportionate share of overhead, which included security, maintenance, liability insurance and similar generally accepted overhead costs. Bennett was responsible for providing and managing some of those overhead services, not simply for the Head Start program, but for all of the various programs conducted at Hamilton Center locations. The Court found that $2,041—or 1.84% of Bennett’s salary and benefits for 2006-2007—were attributable to the federal grant to Head Start.
On November 4, 2008, Bennett won the mayoral election, and on November 19th, Burke sued to have him declared ineligible under the provisions of 42 U.S.C. 9851, the pertinent portion of which applied the Hatch Act to Head Start Grant recipients.
“Any agency which assumes responsibility for planning, developing and coordinating Head Start programs and receives assistance under this subchapter shall be deemed a State or local agency. An agency that operates a Head Start program and receives federal grants to assist with the program is treated as a local government agency funded through Federal grants or loans, meaning that the agency and its employees’ political activities are subject to the restrictions of the Hatch Act.”
The trial court had analyzed this language and concluded that while Bennett had indeed been ineligible to run for mayor, neither Burke nor anyone else had tried to have Bennett disqualified prior to the election. It also, explicitly, found that “the violation was not willful or intentional,” and that the issue hadn’t been raised during any of his three prior election bids. And the trial court further noted the absence of any evidence indicating that Bennett had willfully flouted the Act, or was even aware of it. As the court noted, “His role with Early Head Start was essentially non-existent. Hamilton Center did not consider Bennett an employee of Early Head Start. Bennett approved work orders for minor repairs on two facilities.”
The Terre Haute case illustrates the real dilemma public administrators face. Even if the courts manage to rationalize the state action doctrine, even if (as Rosenbloom and Verkuil have argued) state tort laws and other legal constraints can sometimes substitute for the doctrine’s indeterminacy, the unabated growth in public/private partnerships of various kinds, coupled with the seemingly inexorable increase in federal, state and local law and regulation, have created a situation in which no one can be certain where public stops and private begins.
Therein lies the issue most pertinent to educators: how do we teach future public administrators to safeguard constitutional accountability and legal clarity without sacrificing the administrative flexibility necessary to manage today’s third-party government? These are issues requiring a pedagogy that reflects their importance.
Section Four: Pedagogical Implications
Contracting has significant implications for teaching public administration and public management courses, and those implications go well beyond contract management and cost accounting concerns. Public Administration programs must address the proper role of the state in delivering services to citizens. When should government be responsible for that service delivery? As an article in the Journal of Public Affairs Education put it,
Before there was public management, there was political theory: what should government do? What actions by the state are to be considered legitimate? What is justice? What is public virtue? …those of us who teach public management too frequently ignore those seminal questions for the necessary but inevitably more mundane skills of the profession—budgeting, planning, human resources management, policy analysis. But these practical subjects did not emerge from a void; they are inextricably bound up with our constitutional system, and that system in turn is the outgrowth of great philosophical debates about the proper ordering of human communities. It can be extremely rewarding for students to visit those debates. (One would love to say ‘revisit’ but that would be inaccurate; virtually none of them have familiarity with this intellectual history.)” (Kennedy 2003)
The first questions of political theory are: what should government do, what should government refrain from doing, and why? It is a truism that the existence of a problem is not a warrant for government action. There are many problems that government is uniquely able to address, and many other areas where government efforts to ameliorate problems simply create worse ones. Our classes need to include substantive, critical discussions about what those categories are, how they have developed, and the principled bases of the decisions involved.
A starting point would be a teaching module aimed at developing an understanding and appreciation of our constitutional architecture, including appropriate selections from constitutional history and the Federalist Papers, and with particular emphasis upon the concept of negative rights and the resulting state action doctrine. Key cases (and an acknowledgement of the continuing incoherence of the jurisprudence) would provide a foundation for discussion of the doctrine’s implications for public management. Such a course module would stress the normative nature of our constitutional conception of the role of the state—our national answer to the question “what should government do?”
Once we have explained that basic constitutional premise, we need to explore with our students the principled bases upon which contracting decisions should be made. The decision whether to contract public functions is a matter of public policy, and a decision with significant consequences, appreciated and unappreciated. In fact, policy analysis may be the curricular area most in need of substantive additional materials discussing some of the less obvious policy consequences of contracting. A case in point: In December 2003, The Guardian reported that private corporations had become the second biggest contributor to coalition forces in Iraq after the Pentagon, and noted that the proportion of private contractors had grown markedly since the first Gulf War in 1991, when it was 100 to 1. By 2003, the proportion was ten to one, and nearly a third of the budget earmarked that year for the wider Iraqi campaign, or $30 billion dollars, went to private companies in what the Guardian called “a booming business” of replacing soldiers with highly paid civilians not subject to standard military procedures. The “booming private sector” has soaked up much of the expertise that became available as armies downsized after the Cold War, and its emergence has allowed America to wage war by proxy, without the congressional and media oversight to which conventional warfare is subject.
In “Corporate Warriors: The Rise of the Privatized Military Industry,” published in 2003, Peter Singer identified three categories of private military contractors: provider firms offering direct, tactical assistance—anything from training programs to staff services to front-line combat; consulting firms drawing primarily upon retired senior officers selling their strategic/administrative expertise back to the military; and support firms providing logistic and maintenance services. Singer highlighted numerous legal, policy and management questions raised by this vastly expanded use of private military companies. Will the ties of these organizations to their countries of origin weaken as markets become more globalized, and opportunities for profit conflict with obligations of patriotism? Will states lose control of military policy to companies whose first responsibility is to clients and shareholders? How will foreign policy decision-making change when a declaration of war entails “hiring” soldiers rather than deploying young citizens? Will companies pursuing profits lobby successfully for military “solutions” to global conflicts? How will we control the behavior of “private” combatants?
Such examples are emphatically not offered to suggest that contracting is never appropriate, or that it is inconsistent with liberal constitutional processes. Contracting is, or should be, ideologically neutral. It is a tool, and as with all tools, it will be useful in some cases, and counterproductive in others. Students—and public managers—are ill-served by rigid, ideological “either-or” approaches to these decisions. The point we make is that decisions about service delivery must include consideration of all of the relevant costs and benefits, including—but certainly not limited to—considerations of democratic processes, transparency and constitutional accountability. President Obama recently underscored the importance of those considerations when he announced a government-wide review of federal contracting procedures, beginning with contracting decisions made by the Department of Defense (Wilson and O’Harrow, 2009).
In short, students studying for an MPA in the twenty-first century must be prepared to face challenges far different from those faced by former generations of public managers. This is not our great-grandfathers’ public administration, and Leonard White’s argument that “. . the study of administration should start from the base of management rather than the foundation of law…. “ can no longer be accepted as truth. (White 1987 : 56). As Rosenbloom and Naff (2008) have noted, there is no longer a question about the “partnership” between courts and public administration, because the courts increasingly prescribe the public administrative values that must shape public management behavior. If we do not teach students to recognize and internalize the constitutional bases of those values, we do them a grave disservice. It is vitally important that M.P.A. programs recognize the normative function of the law and discharge their responsibility to instill constitutional values in their students.
The American Society for Public Administration’s Task Force on Education has come to the same conclusion, pointing out that the “…core mission of those offering the MPA degree must be to develop the capacity of graduates to exercise delegated public authority wisely, effectively, and lawfully.” The Task Force goes on to say that “the United States Constitution, along with the constitutions of the states…anchor American public administration at all levels of government.” The curriculum for the M.P.A. degree “should be such that it introduces or reinforces students’ understanding of their constitutionally-delegated authority.” The Task Force reasons that public administrators, as trusted public servants, are obligated to operate within the confines of the constitution (ASPA, 2008).
Unfortunately, however, there is considerable evidence that public administration education does not adequately integrate constitutional values into the curriculum. Books on public administration and democracy often do not cover the Constitution (Kennedy 2007). Moreover, most M.P.A. programs do not require what Rosenbloom has called “constitutional competence” as part of the degree. A recent survey by NASPA confirms the deficiency: even when law-oriented courses are available to M.P.A. students, only 45% emphasize the Constitution or the constitutional constraints on administrative behavior. Some 62% of M.P.A. programs do not require any law-oriented courses. Of the 86 survey responses received from NASPA schools, fewer than 3% agreed that students should have knowledge of the law (Rosenbloom and Naff, 2007).
A grounding in constitutional values has always been necessary to the proper practice of public administration and management, and the increasing use of third-party contractors to deliver government services has made such grounding more imperative than ever. Steven I. Schooner, who co-directs the government procurement law program at George Washington University, made that point when he was asked about the Obama administration’s decision to review government contracting practices. The most important part of that review, Schooner opined, is the evaluation of the “ability of the federal acquisition workforce to develop, manage and oversee acquisitions appropriately” (Wilson and O’Harrow 2009). Other experts on the subject of government contracting agree that the practice comes with serious risk of losing accountability and raising the potential of corruption and political favoritism (Fernandez, 2007; Moe 1996; Kettl 1993; Sclar 2000). The irony is that contracting out—done properly—can serve as a means of “countering coercive power of the state and protecting the personal freedom of citizens” (Fernandez,2007; Savas, 2000). Any benefits of contracting out, however, require effective public management, and effective public management requires a grounding in the Constitution and constitutional values.
Section Five: Pedagogical Challenges
Government officials and public administration scholars alike have embraced third-party
government without adequately addressing two important policy issues:
- Can we achieve efficiencies in service provision without sacrificing democratic norms of equity, accountability, transparency and due process that are fundamental to our political order and constitutional culture?
- Are there some tasks so critical to our collective identity, to our sense of what it means to be a member of a political community, that they must be provided by citizens pursuing their civic duty rather than by businesses pursuing profit? If so, what are those tasks, and how do we identify them? What makes them different?
If the tragedy of Abu Ghraib proved anything, it is that the substitution of contractors for government employees or agents has not lessened our need to control how state power is exercised. If the (black) comedy that is the Terre Haute election debacle proved anything, it is that compliance with contracts and law alike require that applicable legal structures be known and knowable to those to whom they apply. Too few of our policy texts highlight these issues, or ask these hard questions, and too few of our classes devote time to explaining their importance, exploring their ramifications, or preparing students to cope with them.
It is high time we do so. All indications are that students with MPA degrees will be in great demand over the next decade; article after article underscores the fact that the current government workforce is aging and retiring. After decades of ideologically-driven shrinkage, government employment is growing and new agencies are being established to meet a variety of emerging challenges. As Schooner told Wilson and O’Harrow, “Realistically, if we want the government’s procurement dollars spent wisely, the government may need to hire tens of thousands of qualified, motivated, trained and responsible acquisition professionals.” Multiply that example many times over, and the market for MPA graduates is likely to be robust.
As schools of public affairs, we have an obligation to equip this new generation of public managers with the constitutional competence that will allow them to address new challenges without undermining our shared governing values.
Even when the policy consequences of contracting are not as potentially grave as in the military context, those consequences should be explored in classes on public management. For example, once a specific government agency has been charged with a responsibility, the question becomes one of delivery. Is this a job best handled by employees, or by contractors? If it is the latter, what are the mechanisms we will need in order to ensure accountability for both program results and constitutional compliance? It is only after we have gone through this analytical exercise that we can determine whether contracting out is an appropriate delivery method, and if so, how we can best structure the contracting relationship to provide clarity and protect the public interest.
It is a truism of public affairs education that when government acts, government should be accountable. The instrument government chooses should not alter that result. Whether government delivers drug counseling or job placement or any other service through a state agency, a for-profit or nonprofit provider, or a faith-based organization, the program should be properly understood for what it is: the empowerment of a third party to act for and on behalf of the state. It is state action in fact, if not necessarily in law. We do a disservice to those whom we are training to be public managers when we fail to explore the constitutional, management and policy implications of that fundamental fact.
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 While the literature has numerous and often conflicting definitions of privatization, in this article we use that term to describe the sale or other disposition of previously government-owned enterprises to the private sector, which subsequently takes responsibility for them—e.g., Margaret Thatcher’s privatization efforts in Great Britain. In the U.S., the term is often used—inaccurately, we feel—to describe contracting relationships.
Singer also argued that governments are surrendering a defining attribute of statehood, the monopoly on the legitimate use of force. If our legal system is increasingly unable to answer the question “when has government acted?” what will happen when we no longer know what a government looks like?