Beating That Dead Horse….

Last night, I spoke at the Indianapolis-Marion County Public Library, addressing–what else?–the Constitution and our current governmental dysfunctions… Regular readers have seen the following arguments before…

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Over the past several years, American political debate has become steadily less civil. Partisan passions routinely overwhelm fair-minded analysis, and the Internet allows people to choose their news (and increasingly, their preferred realities). During the recent election cycle, it was clear that in many cases, Americans were pontificating past each other rather engaging with opponents through thoughtful public discourse.

The title of this talk is “How the Constitution Drives Policy.” I’m going to expand that a bit. In America, the Constitution certainly should drive policy, because the Constitution and Bill of Rights provide a framework for legislation and limits on the sorts of measures policymakers can legitimately enact. But I am also going to talk about the ways in which our political and electoral systems—some embedded in the Constitution and some not—are distorting Constitutional norms and undermining democratic values. Those systems are also driving policymaking—and the result is a federal government that isn’t working properly, and sometimes not working at all.

Speaking of “drivers,” I am firmly convinced that there are three primary “drivers” of the rancor and partisan nastiness that is distorting our efforts at civil communication and preventing the operation of genuinely democratic governance. One is the pace of social and technological change, especially but not exclusively the Internet and social media; one is what I call civic illiteracy—widespread ignorance of the historical foundations and basic premises of American government; and the third is a combination of systemic malfunctions that have left us at the mercy of what pundits have accurately described as “tyranny of the minority.”

There is not much we can do about the pace of social and technological change, beyond recognizing the degree to which people find it disorienting. Despite desperate attempts to keep things as we mis-remember they were, “Stop the world I want to get off” doesn’t work. But we can and should address civic ignorance and we can and should fix our broken political systems.

I first recognized the degree to which our schools don’t teach civics when I began teaching at IUPUI. My undergraduate students had never heard of the Enlightenment, often couldn’t define government, and had little to no constitutional knowledge. I don’t want to belabor this lack of civic literacy, but I do want to share some statistics that should concern all of us. A few years ago, the Oklahoma Council of Public Affairs asked high school seniors in that state some simple questions about government. Let me share a few of those questions and the percentages of students who answered them correctly:

What is the supreme law of the land? 28%

What do we call the first ten amendments to the Constitution? 26%

What are the two parts of the U.S. Congress? 27%

Who wrote the Declaration of Independence? 14%

What are the two major political parties in the United States? 43%

We elect a U.S. senator for how many years? 11%

Who was the first President of the United States? 23%

In a recent national survey, only 26 percent of Americans could name the three branches of government. That is actually down from 2011, when a still-pathetic 36% could name them. More than a third (37 percent) couldn’t name a single one of the rights guaranteed under the First Amendment. Fewer than half of 12th graders can describe federalism. Only 35% can identify “We the People” as the first three words of the Constitution. Only five percent of high school seniors can identify or explain checks on presidential power. During the recent attempt by Congress to repeal the Affordable Care Act, polls found that a third of Americans didn’t know that Obamacare and the Affordable Care Act were the same thing.

Productive civic engagement is based on an accurate shared understanding of the “rules of the game,” especially but not exclusively the Constitution and Bill of Rights– the documents that frame our policy choices in the American system.

An acquaintance with the history and philosophy that shaped what I call “the American Idea” is critically important for understanding why we do things the way we do; when we understand the roots of our national approach to government, to civil liberties, and to civil and human rights, we are better able to decide what proposals and policies are consistent with that approach. We are also better able to hold elected officials accountable if we know what they are supposed to be accountable to.

The American Constitution was a product of the 18th Century cultural, intellectual and philosophical movement known as the Enlightenment. Most of us know that the Enlightenment gave us science, empirical inquiry, and the “natural rights” and “social contract” theories of government, but what is less appreciated is that the Enlightenment also changed the way we understand and define human rights and individual liberty.  

We are taught in school that the Puritans and Pilgrims who settled the New World came to America for religious liberty; what we aren’t generally taught is how they defined liberty.  Puritans saw liberty as “freedom to do the right thing”—freedom to worship and obey the right God in the true church, and their right to use the power of government to ensure that their neighbors were worshipping and obeying the right God too. The Founders who crafted our constitution some 150 years later were products of an intervening paradigm change brought about by the Enlightenment and its dramatically different definition of liberty.

America’s constitutional system was based on an Enlightenment concept we call “negative liberty.” The Founders believed that fundamental rights are not given to us by government; instead, they believed that rights are “natural,” meaning that we are entitled to certain rights simply by virtue of being human (thus the term “human rights”) and that government has an obligation to respect and protect those inborn, inalienable rights.

Contrary to popular belief, the Bill of Rights does not grant us rights—it protects the rights to which we are entitled by virtue of being human against infringement by an overzealous government. The American Bill of Rights is essentially a list of things that government is forbidden to do. For example, the state cannot dictate our religious or political beliefs, search us without probable cause, or censor our expression—and government is forbidden from doing these things even when popular majorities favor such actions.

In our system, those constraints don’t apply to private, non-governmental actors. As I used to tell my kids, the government can’t control what you read, but your mother can. Public school officials can’t tell you to pray, but private or parochial school officials can. If government isn’t involved, neither is the Constitution. Private, non-governmental actors are subject to other laws, like civil rights laws, but since the Bill of Rights only restrains what government can do, only government can violate it. I’m constantly amazed by how many Americans don’t know that.

Unlike the liberties protected against government infringement by the Bill of Rights, civil rights laws represent our somewhat belated recognition that if we care about individual rights, just preventing government from discriminating isn’t enough. If private employers can refuse to hire African-Americans or women, if landlords can refuse to rent units in their buildings to LGBTQ folks, if restaurants can refuse to serve Jews or Muslims, then society is not respecting the natural rights of those citizens and we aren’t fulfilling the obligations of the social contract that was another major contribution of Enlightenment philosophy.

The Enlightenment concept of human rights and John Locke’s theory of a social contract between citizens and their government challenged longtime assumptions about government and the divine right of kings. Gradually, people came to be seen as citizens, rather than subjects. This new approach to individual rights and the nature of citizenship also helped to undermine the once-common practice of assigning social status on the basis of group identity.

The once-radical idea that each of us is born with the same claim to rights has other consequences. For one thing, it means that governments have to treat their citizens as individuals, not as members of this or that group. America was the first country to base its laws upon a person’s civic behavior, not gender, race, religion or other identity or affiliation. So long as we obey the laws, pay our taxes, and generally conduct ourselves in a way that doesn’t endanger or disadvantage others, we are all entitled to full civic equality, no matter what our race, religion, gender or other identity.  When our country has lived up to that guarantee of equal civic rights, we have unleashed the productivity of previously marginalized groups and contributed significantly to American prosperity. And I think it is fair to say that—despite setbacks, and despite the stubborn persistence of racial resentments, religious intolerance and misogyny, until recently we had made substantial progress toward a culture that acknowledges the equal humanity of the people who make up our diverse nation.

In addition to civic equality, however, respect for individual rights also requires democratic equality—an equal right to participate in self-government.  We now recognize—or at least give lip service to—the proposition that every citizen’s vote should count, but on this dimension, we not only aren’t making progress, we’re regressing, as anyone who follows the news can attest. And that brings me to the systemic issues we face, and the ways in which outdated elements of our election system—some of which are rooted in the Constitution—are driving undemocratic and even destructive behaviors.

One element of civic literacy that gets short shrift even among educators is the immense influence of systems in a society—an appreciation of the way in which institutions and norms and laws shape how we understand and interpret our environments, and how familiarity with the “way things are” can obscure our recognition of systemic problems. For quite a while now, familiarity with “the way we do things” has obscured the degree to which American democracy has become steadily less democratic—and the extent to which we are denying more and more of our citizens the right to participate meaningfully in self-government.

The current operation of the Electoral College gives disproportionate weight to the votes of rural voters and those from small states, and discounts the votes of urban Americans. It’s not simply the fact that in two of the last four elections, the candidate with fewer votes won the Presidency; the lopsided influence of rural America has also given us legislation and policies that are demonstrably at odds with the desires of most Americans and arguably at odds with important Constitutional principles.

Vote suppression has been on the rise, especially but not exclusively in Southern states that have not been required to get preclearance from the Justice Department since the Supreme Court gutted the Voting Rights Act. The Constitution allows each state to manage its own voter registration and election processes, and that facilitates a lot of mischief. Voter ID laws that target the virtually non-existing problem of in-person voter fraud intimidate and discourage poor and minority voters—and that is their real purpose.

Unequal resources have always been a problem, but ever since the Supreme Court decided Buckley v. Valeo, and equated money with speech, and especially since Citizens United, which essentially held that corporations are people, money spent by special interests has overwhelmed the votes, voices and opinions of average citizens.  

The most pernicious erosion of “one person, one vote” however, has come as a consequence of gerrymandering, or partisan redistricting. There are no “good guys” in this story—gerrymandering is a crime of opportunity, and both parties are guilty.

You all know the drill; after each census, state governments redraw state and federal district lines to reflect population changes. The party in control of the state legislature at the time controls the redistricting process, and draws districts that maximize its own electoral prospects and minimize those of the opposing party. Partisan redistricting goes all the way back to Elbridge Gerry, who gave Gerrymandering its name—and he signed the Declaration of Independence—but with the advent of computers, the process became far more sophisticated and precise, leading to a situation which has been aptly described as legislators choosing their voters, rather than the other way around. Recently, the respected Cook Report looked at the nation’s political map, and concluded that only one out of twenty Americans lives in a competitive Congressional district.

Thomas Mann and Norman Orenstein are political scientists who have written extensively about redistricting. They have tied partisan redistricting to the advantages of incumbency, and they have also pointed out that the reliance by Congressional candidates upon maps drawn by state-level politicians reinforces what they call “partisan rigidity” — the increasing nationalization of the political parties.

Interestingly, one study they cited investigated whether representatives elected from districts drawn by independent commissions become less partisan. Contrary to their initial expectations, they found that politically independent redistricting did reduce partisanship, and in statistically significant ways, even though the same party usually retained control.

The most pernicious effect of gerrymandering is the proliferation of safe seats. Safe districts breed voter apathy and reduce political participation. After all, why should citizens get involved if the result is foreordained? Why donate to a sure loser? (For that matter, unless you are trying to buy political influence for some reason, why donate to a sure winner?) What is the incentive to volunteer or vote when it obviously won’t matter? It isn’t only voters who lack incentives for participation, either: it becomes increasingly difficult for the “sure loser” party to recruit credible candidates. As a result, in many of these races, voters are left with no genuine or meaningful choice—last year, out of 100 candidates for the Indiana House of Representatives, 32 ran unopposed.  Ironically, the anemic voter turnout that gerrymandering produces leads to handwringing about citizen apathy, usually characterized as a civic or moral deficiency. But voter apathy may instead be a highly rational response to noncompetitive politics. People save their efforts for places where those efforts count, and thanks to the increasing lack of competitiveness in our electoral system, those places often do not include the voting booth.

If the ability to participate meaningfully in self-governance should be considered a civil right, partisan game-playing making elections meaningless should be seen as an assault on human rights. And increasingly, citizens see it that way. We can only hope that Gill v. Whitford, a Wisconsin gerrymandering case currently before the Supreme Court, will give us a tool we can use to put an end to partisan redistricting that disenfranchises so many voters.

It’s important to recognize that the safe districts created by gerrymandering do more than simply disenfranchise voters; they are the single greatest driver of government dysfunction. In safe districts, the only way to oppose an incumbent is in the primary–and that almost always means that the challenge will come from the “flank” or extreme. When the primary is, in effect, the general election, the battle takes place among the party faithful, who also tend to be the most ideological voters. So Republican incumbents will be challenged from the Right and Democratic incumbents will be attacked from the Left. Even where those challenges fail, they create a powerful incentive for incumbents to “toe the line”— to placate the most rigid elements of their respective parties. Instead of the system working as intended, with both parties nominating candidates they think will be most likely to appeal to the broader constituency, the system produces nominees who represent the most extreme voters on each side of the philosophical divide.

One consequence of this ever-more-precise state-level and Congressional district gerrymandering has been a growing philosophical gap between the parties— especially but certainly not exclusively in the Republican party— and an empowered, rigidly ideological base intent on punishing any deviation from orthodoxy and/or any hint of compromise.

When you combine civic ignorance with extreme partisanship, constitutional compliance gets lost.

American citizens aren’t asking “Is this proposal or law constitutional? Is it consistent with America’s distinctive approach to the proper role of government and the rights of the individual?” Instead, too many of us approach our political affiliations in much the same way as we do our favorite sports teams. Rather than asking whether a proposal or law is consistent with America’s constitutional philosophy, or even whether it advances the common good, Americans ask “Is this good for my team?”

We have substituted tribal loyalty for constitutional fidelity.

For a number of years, social scientists have tracked declining trust in our social and political institutions—primarily, although certainly not exclusively, government. Restoring that trust is critically important—but in order to trust government, we have to understand what it is and isn’t supposed to do—we have to understand how the people we elect are supposed to behave. We need a common, basic understanding of what our particular Constitutional system requires.

Now, let me be clear: there are plenty of gray areas in constitutional law—plenty of situations where informed people of good will can come to different conclusions about what the Constitution requires. But by and large, those aren’t the things Americans are arguing about. We aren’t having disagreements at the margins between well-informed people who agree on basic facts. We are having tantrums, thrown by people who surf the internet for confirmation of their preferred realities.

Think about it: if I say this podium is a table, and you say no, it’s a chair, we aren’t going to have a very productive discussion about its use—for that matter, we’re each likely to think the other person is nuts. We’re certainly not going to trust his or her other observations.

Constitutions are expressions of political theory, efforts to address the most basic question of any society—how should people live together? What should the rules cover, how should they be made, who should get to make them and how should they be enforced? Those who crafted our Constitution came up with certain answers to those questions, and if we are to communicate with each other, we need to know what those answers were.

The Constitution our founders created reflected their assumptions about human nature and accordingly, privileged certain values—values that need to be explicitly recognized, discussed and understood, because they provide the common ground for our citizenship and they define our understanding of public morality.

Governments are human enterprises, and like all human enterprises, they will have their ups and downs. In the United States, however, the consequences of the “down” periods like the one we are experiencing now are potentially more serious than in more homogeneous nations, precisely because this is a country based upon covenant, upon an idea. Americans do not share a single ethnicity, religion or race. Culture warriors to the contrary, we never have. We don’t share a comprehensive worldview. What we do share is a set of values, a set of democratic institutions and cultural norms, and a legal system that emphasizes the importance of fair processes–and when our elected officials aren’t obeying those norms, when they are distorting and undermining the underlying mechanics of democratic decision-making, our government can’t function properly.

In a country that celebrates individual rights and respects individual liberty, there will always be dissent, differences of opinion, and struggles for power. But there are different kinds of discord, and different kinds of power struggles, and they aren’t all equal. When we argue from within a common understanding of what I call the constitutional culture—when we argue about the proper application of the American Idea to new situations or to previously marginalized populations—we strengthen our bonds as Americans, and learn how to bridge our differences. When we allow powerful partisans to rewrite our history, reinterpret our Constitution, pervert our basic institutions, and distort the rule of law, we undermine the American Idea and erode the trust required to make our democratic institutions work.

When it comes to accountability and trust, civic ignorance matters. When we don’t understand how our systems are supposed to work, we don’t recognize when they have become corrupted, and we can’t fix our problems. Without shared ground—without trust in a common understanding of our nation’s foundations and commitments– we cannot have civil dialogue, let alone political agreement. Without it, we can’t repair our broken government.

If we are to rescue our electoral systems, restore our democratic norms, and come together as an American community rather than a collection of warring tribes, we have to start where this nation started—with the Constitution. We need to inform ourselves—accurately–and we need to insist that those political figures who love to whip a small copy of the Constitution out of the pockets of jackets with flag pins on the lapels actually understand what that document means, and where it came from—and that they behave in accordance with its values and principles.

It may be that this very difficult time we are going through is a test. If so, we’re in danger of failing. We Americans need to get our act together before the bell rings. The way to make America great is to make America live up to its Constitutional commitments and principles.

Thank you.

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About White Populism

A few days back, I posted a blog praising George W. Bush’s recent speech decrying Trump’s bigotry. The responses were varied–some agreed that such a message coming from a former Republican President whose own tenure was unsuccessful (to put it mildly) was welcome. Others recited the multiple misdeeds of his administration as proof that nothing he could ever do should be considered praiseworthy.

There is a degree of partisanship that makes its adherents loathe to agree with any sentiment, no matter how anodyne, coming from the other “team”–a dogmatism that makes them unwilling to believe that agreement by one of “them” with a position of “ours” could possibly be authentic, let alone grounds for amicable discussion.

That’s too bad, because those partisans will miss an essay in the National Review that is well worth reading. I would be surprised if thoughtful political liberals wouldn’t approve of most of the points made.

A couple of examples:

Conservatives have a weakness for that “acting white” business because we are intellectually invested in emphasizing the self-inflicted problems of black America, for rhetorical and political reasons that are too obvious to require much elaboration…

Republicans, once the party of the upwardly mobile with a remarkable reflex for comforting the comfortable, have written off entire sections of the country — including the bits where most of the people live — as “un-American.” Silicon Valley and California at large, New York City and the hated Acela corridor, and, to some extent, large American cities categorically are sneered at and detested. There is some ordinary partisanship in that, inasmuch as the Democrats tend to dominate the big cities and the coastal metropolitan aggregations, but it isn’t just that. Conservatives are cheering for the failure of California and slightly nonplussed that New York City still refuses to regress into being an unlivable hellhole in spite of the best efforts of its batty Sandinista mayor. Not long ago, to be a conservative on Manhattan’s Upper East Side was the most ordinary thing in the world. Now that address would be a source of suspicion. God help you if you should ever attend a cocktail party in Georgetown, the favorite dumb trope of conservative talk-radio hosts.

We’ve gone from William F. Buckley Jr. to the gentlemen from Duck Dynasty. Why?

American authenticity, from the acting-even-whiter point of view, is not to be found in any of the great contemporary American business success stories, or in intellectual life, or in the great cultural institutions, but in the suburban-to-rural environs in which the white underclass largely makes its home — the world John Mellencamp sang about but understandably declined to live in.

Shake your head at rap music all you like: When’s the last time you heard a popular country song about finishing up your master’s in engineering at MIT?

There is much, much more, and I strongly encourage readers to click through and read the entire essay–not just because so many of the writer’s observations are dead-on, but because those on the political Left who identify strongly with other progressives and with the resistance to Trump and Trumpism need to remember that genuine conservatives also disdain the know-nothings and bigots who have appropriated the conservative label.

Before the GOP was taken over by conspiracy theorists, racists, religious fundamentalists and Big Money, principled Democratic and Republican political figures used to engage in civil conversation and even productive policymaking.

We will never recover the art of civil conversation, let alone policymaking intended to serve the public good, if we refuse to see any merit in anyone who doesn’t agree with us 100%. That sort of political intransigence–prominent among the GOP base and so-called “Freedom Caucus”–is what has destroyed the Republican party. Democrats shouldn’t emulate it.

Read the damn essay.

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When Evidence Isn’t Reliable

How do we know what we know? Who can we trust?

It’s bad enough that an American President constantly attacks reputable sources of information; when Trump asserts that reports unflattering to him are “fake news,” those assertions join–and bolster– widely-held doubts about the reliability of contemporary media. Those doubts are understandable; it is increasingly difficult to separate out the conspiracy-theory websites from legitimate digital newcomers, to recognize and discount sources trafficking in spin and outright propaganda, and even to distinguish between objective reporting and satire.

The unremitting assault on fact, on objective reality, makes the reliability of the information we get from government agencies more important than ever. When Scott Pruitt scrubs accurate science from the EPA website, he does more than degrade our efforts to protect the environment–he adds to the Alice-In-Wonderland nature of our shared reality.

Unfortunately, it isn’t just Scott Pruitt. The problem isn’t even limited to the Trump cabinet.

According to the Guardian (a very reputable source)

Over half of all police killings in 2015 were wrongly classified as not having been the result of interactions with officers, a new Harvard study based on Guardian data has found.

The finding is just the latest to show government databases seriously undercounting the number of people killed by police.

“Right now the data quality is bad and unacceptable,” said lead researcher Justin Feldman. “To effectively address the problem of law enforcement-related deaths, the public needs better data about who is being killed, where, and under what circumstances.”

This article underscores the importance of good journalism–the Harvard study used data compiled in the Guardian’s investigative reporting. It also illustrates the consequences of relying upon bad data.

Feldman used data from the Guardian’s 2015 investigation into police killings, The Counted, and compared it with data from the National Vital Statistics System (NVSS). That dataset, which is kept by the Centers for Disease Control and Prevention (CDC), was found to have misclassified 55.2% of all police killings, with the errors occurring disproportionately in low-income jurisdictions.

“As with any public health outcome or exposure, the only way to understand the magnitude of the problem, and whether it is getting better or worse, requires that data be uniformly, validly, and reliably obtained throughout the US,” said Nancy Krieger, professor of social epidemiology at Harvard’s Chan School of Public Health and senior author of the study. “Our results show our country is falling short of accurately monitoring deaths due to law enforcement and work is needed to remedy this problem.”

Interestingly, the researchers found that the accuracy of the data varied wildly by state, “with just 17.6% misclassification in Washington, but a startling 100% in Oklahoma.”

In 2015 the Guardian launched The Counted, an interactive, crowdsourced database attempting to track police killings throughout the US. The project was intended to help remedy the lack of reliable data on police killings, a lack that became especially visible after the 2014 unrest in Ferguson put policing in the national spotlight.

Other federal databases, including the Bureau of Justice Statistics’ (BJS) arrest-related death count and the FBI’s supplementary homicide reports were similarly criticised for severely undercounting police-related deaths. Both programs have been dramatically reworked since The Counted and similar media/open source databases forced officials such as the former FBI director James Comey to admit that newspapers had more accurate data than the government on police violence.

To state the obvious, policymakers cannot craft good laws or regulations in the absence of sound data. Citizens confronted with experiences at odds with government’s descriptions lose confidence in that government. Discrepancies between reality and government reporting feed conspiracy theories.

When we don’t know what we know, we cannot act.

Other than patronizing news sites we know to be trustworthy, there’s not much we can do about the proliferating media wannabes spouting fantasies and disinformation. But we should be able to insist that government agencies charged with compiling and disseminating factual data do so accurately. We aren’t likely to get that done in the Age of Trumpian Fantasy, but when the time comes to clean up the incredible chaos he is creating, a commitment to accurate data collection by government should be high on our cleanup list.

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In Praise of George W. Bush (No Kidding)

Where was this guy while Dick Cheney was running the country?

Granted, George W. Bush has been looking a lot better during the disaster that is Donald Trump…but I’m still dumbfounded (and awed) by his speech last week at the Bush Institute’s Spirit of Liberty event in New York.

A few quotations:

“Bigotry seems emboldened. Our politics seems more vulnerable to conspiracy theories and outright fabrication.”

 “Bigotry in any form is blasphemy against the American creed and it means the very identity of our nation depends on the passing of civic ideals to the next generation. We need a renewed emphasis on civic learning in schools.”
“And our young people need positive role models. Bullying and prejudice in our public life sets a national tone, provides permission for cruelty and bigotry, and compromises the moral education of children.”

“The only way to pass along civic values is to first live up to them.”

“We’ve seen our discourse degraded by casual cruelty. At times, it can seem like the forces pulling us apart are stronger than the forces binding us together. Argument turns too easily into animosity. Disagreement escalates into dehumanization.”

“Too often we judge other groups by their worst examples while judging ourselves by our best intentions, forgetting the image of God we should see in each other. We’ve seen nationalism distorted into nativism, [and] forgotten the dynamism that immigration has always brought to America.”

In a further reproach to Trump–whose name he never uttered and who has dismissed the evidence–Bush also underscored the conclusion of all the American intelligence agencies about Russian interference in last year’s elections, calling it real and labelling it “subversion.”

Credit where credit is due: during his presidency, Bush never came across as a bigot, although he often failed to push back against his party’s use of bigotry and especially homophobia to win elections.

It is obviously easier for politicians who are not facing another election to call out Trumpism, as we’ve seen with John McCain and Bob Corker. But it is also easier to refrain from publicly defying a sitting President of one’s own party, easier to avoid setting an example that cannot help but shame the current leadership of that party. Easier to keep your head down and enjoy the accolades that come from being an “elder statesman.”

Bush’s broadside is so important because it is his party (or more accurately, what his party has become). Trump ran as a Republican. The House and Senate are controlled by Republicans. Admonitions from Democrats–even previous Presidents–will be dismissed by the party’s base as partisan carping.

As welcome as this speech was, the fact that Bush delivered it is an ominous sign of how worried responsible people are. Those who understand government, who recognize the challenges facing the country and the incredible damage being done to America’s democracy at home and our stature abroad, are speaking up, and we need to recognize how  unprecedented that is.

Differences of opinion on policies would never prompt this behavior. Only a deep foreboding–a sense of existential crisis–can explain this departure from Presidential behavioral norms.

When George W. Bush feels it necessary to warn the country against Trump and Trumpism, we’re in trouble. Bigly.

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What Is Public? A Clash of Legal and Policy Paradigms

Cullen Merritt, Assistant Professor, SPEA, IUPUI

Julia Carboni, Associate Professor, Syracuse University

Deana Malatesta, Associate Professor, SPEA Bloomington

Sheila Suess Kennedy, Professor, SPEA, IUPUI

abstract

Deciding whether to advance public policy goals through government’s own employees or a third-party surrogate can be a complex undertaking largely because legal and policy actors will ask two very different questions: lawyers will ask “did government or someone who can be considered a ‘state actor’ do this?” Policy analysts will ask “Who should do this, government or a private party or a third-party surrogate?” Notably absent from prior scholarship is consideration of how the concept of “public” has evolved in administrative and legal practice. We analyze the evolution of “public” as defined by the Executive branch in OMB Circular A-76 and the parallel evolution of the judiciary’s “public function” test in state action cases.  Comparison of the administrative and legal frameworks in this area offers important insights into the tension between the two.  Conceptual knowledge in this area is especially salient given the increasing reliance on contractors and private funders to perform what public administration scholars have long assumed to be exclusively public functions.

 

INTRODUCTION

Public administration scholars have long sought to develop the concept of “public” (e.g., Bozeman 1987; Moulton 2009; Perry and Rainey 1988; Rainey, Backoff, and Levine 1976). Past efforts have focused on legal ownership (i.e., government versus private), modes of governance, and sources of authority (e.g., government regulation) as ways to distinguish between public and private actors. More recent efforts attempt to reconcile the judiciary’s understanding of state action with public administration scholars’ conceptions of public (Malatesta & Carboni 2014). This task is complicated by the fact that legal and policy actors are asking two very different questions: lawyers will ask “did government or a ‘state actor’ do this?” Policy analysts will ask “Who should do this, government or a private party or a third-party surrogate?” Notably absent from prior scholarship is consideration of the differences between legal and policy concepts of “public” and how those concepts have developed over time.

We analyze the evolution of public as defined by the Executive branch in OMB Circular A-76, and the evolution of the judiciary’s application of the “public function” test for purposes of the state action doctrine. OMB Circular A-76, “Performance of Commercial Activities”, is a federal document that provides guidance to those charged with determining how government will deliver and oversee “commercial” activities; the emphasis is on enhancing productivity and efficiency.  The Circular also provides guidance on distinguishing between commercial activities and “inherently governmental functions” that should be performed by government employees because they are “so intimately related to the public interest as to mandate performance by government employees.”

Though the courts do not have a singular definition of “public,” a subset of state action doctrine cases focus on the discharge of what the Supreme Court designates as public functions.  The state action doctrine is a legal principle used by the courts to distinguish between public and private actors for the purpose of assessing constitutional compliance.  Courts must decide whether conduct at issue is attributable to the state, making defendants potentially accountable to constitutional restrictions that apply only to state actors.  The jurisprudence of state action lacks clarity and consistency, and has been the subject of considerable legal scholarship and debate (Barak-Erez 1994; Carboni and Malatesta, 2014), but that debate has occurred with little or no cross-fertilization with either the policy literature or varying Executive branch directives.

This paper contributes to the growing literature on public-private distinctions.  Our contribution is unique, however, in that it traces the parallel historical evolution of “inherently governmental functions” and “public functions” as defined in administrative and legal contexts, respectively. Public administration scholars should be aware of both concepts, recognize the differences between them, and understand the implications of those differences for policy implementation. This issue is especially salient given the increasing reliance on contractors and private funders to perform what public administration scholars have long assumed to be exclusively public functions (e.g., operation of jails, state parks, and delivery of certain social services). We end the paper with a discussion of the implications resulting from the tension between inherently governmental functions and public functions for public administrators, with special emphasis on challenges in the contracting environment.

INHERENTLY GOVERNMENTAL FUNCTIONS ACCORDING TO THE A-76 CIRCULAR

Inherently governmental functions are those activities that federal law and policy have required to be performed by government employees, rather than by contractors or other non-governmental actors.  Though public administration literature has addressed the definition of inherently governmental functions to a limited extent, it has neglected documentation of the gradual but significant changes in the federal definition over the years. Instead, the literature has focused upon issues of accountability (Gilmour and Jensen 1998; Kettl 1997), the ethical/moral nature of outsourcing (Verkuil 2007), outsourcing and discretion in implementation of inherently governmental functions (Rosenbloom and Piotrowski 2005), and methods of managing contracts for complex products and services that involve contractor discretion (Brown, Potoski and Van Slyke 2009).

The definition of an inherently governmental function was originally designed for the purpose of distinguishing between commercial functions, defined as those that could properly be outsourced to non-governmental employees, and functions that should continue to be performed by government’s own employees. Criteria for identifying inherently governmental tasks have undergone changes as public administration distinctions between what is public and what is private have evolved.  The resulting definitions are broad and vague, providing general parameters to assess whether a function should be considered inherently governmental or commercial.

Although the literature has not been focused upon the nature of inherently governmental functions, its treatment of those functions has evolved along with general trends in public administration research. Beginning with Wilson’s politics-administration dichotomy, traditional public administration has been concerned with issues of leadership and executive action in the public sector; the scholarship advocated a separation between politics and administration, improved efficiency in the public sector, and improved service production through better management (Wilson 1887).  Later work emphasized application of general management principles to the public sector in order to improve the efficiency and professionalism of public administration (Gulick, 1937, Urwick 1945). In the 1960s, public administration shifted from an emphasis upon rational actor models and began to consider the human aspects of decision making.  The New Public Administration that emerged during this period was largely a rejection of the traditional approach to public administration and, instead, prized social equity, citizenship, and the provision of services to citizens (Waldo 1968).  Beginning in the 1980s, scholars in the field embraced New Public Management, a model that advocated a return to general management theory and private sector approaches to service delivery.  Contracting out was seen as a way to cut red tape and make government more efficient (Osborne and Gaebler 1993).  More recently, there has been a shift back to consideration of democratic values, responsiveness to citizens, and effectiveness, and an emerging emphasis on governance by complex arrangements of actors rather than by public agencies (Bryson et al. 2014; Denhardt and Denhardt 2000; Stoker 2006).

Confounding administrators’ decisions about what may be properly contracted out are two interrelated definitions of inherently governmental functions in US federal law. Those definitions are detailed below.  Both begin with the same assumption: certain activities are the domain of government only, and others, considered commercial, can properly be outsourced. A detailed account of the changing understanding of “inherently governmental” from the executive branch perspective can be seen through examination of OMB Circular A-76 and policy letters meant to clarify and expand upon that Circular, namely the Federal Activities Inventory Reform (FAIR) Act of 1998.  The FAIR Act of 1998 defines an inherently governmental function as “a function so intimately related to the public interest as to require performance by Federal Government employees.”  The FAIR Act requires executive agency compliance with the longstanding OMB Circular A-76 approach to the definition of inherently governmental functions.  Its primary focus is on requiring executive agencies to use competitive contracting processes in order to produce the most efficient and cost effective result, particularly in areas where functions were previously discharged by government employees.  It also requires executive agencies to report on their commercial activities to both Congress and the public.

The FAIR Act does not specify an exhaustive list of functions that are to be considered inherently governmental; rather, it identifies inherently governmental functions as those that will “require either the exercise of discretion in applying Federal Government authority or the making of value judgments in making decisions for the Federal Government, including judgements relating to monetary transactions and entitlements.” (31 U.S.C, Section 501).  The Act recites that inherently governmental functions are those that: bind the United States federal government by contract, policy, or regulative activities; determine, protect, and advance US property and interests by military or diplomatic action or judicial proceedings; affect the life, liberty, or property of private individuals; control federal employees; or control federal property, including acquisition, use, or disposition. These broad parameters provide a framework for determining what is inherently governmental rather than specifying activities that must be considered inherently governmental.  This broad approach is consistent with the OMB Circular A-76 definition.

OMB Circular A-76, “Performance of Commercial Activities”, is a federal document intended to provide guidance on government delivery of activities deemed to be commercial. It is focused upon enhancing productivity and efficiency, and it offers guidance on making a determination of whether it will or will not be appropriate to rely on the commercial sector.  OMB Circular A-76 defines an inherently governmental function as “an activity that is so intimately related to the public interest as to mandate performance by government personnel.”  Notably, in A-76, inherently governmental functions are defined in contrast to commercial activities.  Like the FAIR Act, Circular A-76 does not provide a list identifying inherently governmental functions; it defines inherently governmental functions as those that require discretion in applying government authority or functions which require value judgments in making decisions on behalf of government, and leaves the task of specifying those functions to the agencies, requiring the creation of agency inventories: “An agency shall prepare two annual inventories that categorize all activities performed by government personnel as either commercial or inherently governmental.”

The Executive Branch’s definition of what should be considered inherently governmental has changed over time, as the following timeline illustrates.

1955                The Eisenhower Administration’s Bureau of the Budget (predecessor of OMB) establishes federal policy to obtain goods and services from the private sector.  This policy, Bulletin No. 55-4, was the first version of the Circular A-76 and states that the government would depend on the private sector for the performance of commercial activities.

1966                Bulletin 55-4 was developed into formal policy under the new name, Circular A-76, by the OMB. The document restated the policy and reiterated the principle that the government should not compete with its citizens.

1967                OMB Circular A-76 was revised under the Eisenhower Administration to provide formal guidelines for cost comparison procedures.

1970                Reorganization Plan No. 2 of 1970 and Executive Order 11541.

1979                Circular A-76 was revised to recognize that some functions must be performed by government personnel, but recognized that in other cases contractor performance may be cheaper and more effective. It considered whether an agency had a requirement to contract out non-inherently governmental functions.

1983                OMB A-76 was reissued to simplify the cost comparison process under the Reagan Administration.  Procedures were also set in place to reestablish the initial objective of the Eisenhower administration so that commercial activities previously performed by the government could be outsourced to private companies.

1990                Chief Financial Officers Act of 1990 (CFO Act) was signed by the George H.W. Bush Administration to improve financial management by calling for the development and reporting of cost information and systematic measurement of performance.

1992                Office of Federal Procurement Policy Letter 92-1.

1993                Government Performance and Results Act (GPRA) mandated performance measurement by Federal Agencies.

Statement of Federal Financial Accounting Concepts No. 1, “Objectives of Federal Financial Reporting”, stated that Federal financial reporting should provide useful information to assess the budget integrity, operating performance, stewardship, and control of the Federal Government.

1995                Federal Accounting Standards Advisory Board (FASAB) recommended standards which produce the Statement of Federal Financial Accounting Concepts No. 4.  Concept No. 4 provides standards for managerial cost accounting.

1996                Circular No. A-76 Revised Supplemental Handbook was produced, replacing the supplement issued with the 1983 Circular.  The handbook provided updated guidance and procedures for determining whether reoccurring activities should be contracted with commercial sources, kept in-house using Government facilities and personnel, or advanced through inter-service support agreements (ISSAs).  The revision added: (1) balance the interests of parties to make or buy cost comparisons, (2) provide a level playing field between public and private offerors, and (3) encourage competition and choice in management and performance of commercial activity.

1998                Federal Activities Inventory Reform (FAIR) Act of 1998 was introduced.  The FAIR Act required the head of each executive agency to submit a list of activities performed by federal government sources to the Director of OMB and Congress.  This helped prepare executive agencies to evaluate cost efficiencies using the A-76 strategy.

1999                OMB updated the Revised Supplemental Handbook.  Revisions outlined that the government can engage in inherently commercial activities if the function is critical to combat effectiveness, if mission effectiveness will suffer because of outsourcing, if a commercial source is not available or does not meet government requirements in a timely manner, if another Federal agency can provide the goods/services, if outsourcing would result in a higher cost to the government, or if items were inherently governmental in nature.

2001                Competitive sourcing through A-76 was identified as a major initiative by the George W. Bush Administration’s Presidential Management Agenda (this initiative was defined by debate/criticism over A-76 competitions; the private sector maintained that the public sector and its employees had the greater advantage under A-76). This included a goal of controlling 50% of the commercial activities operated by federal agencies completed via the competitive sourcing process.

2003                OMB issued the current version of A-76, superseding the prior Circular and any related guidance.  Revisions to OMB Circular A-76 made it friendlier to the federal worker by getting rid of presumption that all commercial activities in government belong in the private sector.  The goal was to get the best value for the citizen irrespective of who performs the work.  Revisions were intended to simplify, clarify, and standardize the execution of the A-76 process.

A significant amount of Circular A-76 competitions occurred between 2003 and 2008 in most Federal agencies.

2007                Public debate ensued over the Walter Reed Army Medical Center in Washington, DC in which living conditions and frustrations of soldiers were reported by the Washington Post.  Both administration and bureaucratic failures were concluded to be factors contributing to poor conditions.  The public debate led to the prohibition of the conduct of A-76 competitions at military medical facilities, which ultimately led to a moratorium on the conduct of A-76 competitions government-wide.  There was concern that some A-76 activities should be considered inherently governmental and should only be performed by federal employees in the DOD.

2008                Congress passed legislation that suspended ongoing public-private competitions for DOD (Section 325 of the National Defense Authorization Act [NDAA] for FY2008) until September 30, 2008.

2009                President Obama signed into law the FY2009 Omnibus Appropriations Act (Sections 212 and 737) which suspended all new, government-wide OMB Circular A-76 studies through FY2009. DOD can use only competitive sourcing to determine how to best accomplish work that is not currently performed by federal employees. The Omnibus Appropriations Act directs OMB to “clarify when governmental outsourcing of services is, and is not, appropriate, consistent with section 321 of the 2009 NDAA.”

2009                “Managing the Multi-Sector Workforce” Memorandum.  This memorandum “provides initial guidance to help agencies improve their management of the federal government’s multi-sector workforce” by requiring agencies to:

  • Adopt a framework for planning and managing the multi-sector workforce that is built on strong strategic human capital planning.
  • Conduct a pilot human capital analysis of at least one program, project, or activity, where the agency has concerns about the extent of reliance on contractors.
  • Use guidelines that facilitate consistent and sound application of statutory requirements when considering in-sourcing.

2010                Section 735 of Consolidated Appropriations Act FY2010 imposed a moratorium prohibiting certain federal agencies from initiating or announcing a new public-private competition under OMB Circular A-76 through Sept. 30, 2010.

Section 325 of the NDAA for FY2010 established a review and approval process from recommencing DOD private-public competitions.  Section 322 and 325 of NDAA FY2010 required GAO to assess DOD’s report on public-private competitions and its use of authority to extend the 24-month time limit on the conduct of A-76 competitions.

In Section 8117 of Department of Defense Appropriations Act of FY2010, Congress prohibited any spending of FY2010 funds to conduct public-private competitions under A-76.

2011                In Section 323 of Ike Skeleton National Defense Authorization Act for FY2011, Congress prohibited the Secretary of Defense from establishing quotas or goals for converting functions performed by DOD civilian employees to contractors unless based on research and analysis required by title 10 United States Code.

In the Consolidated Appropriations Act FY2011, federal agencies cannot initiate or announce new public-private competitions (Section 8103 of P.L. 112-10).

2011                Policy Letter 11-01, “Performance of Inherently Governmental and Critical Functions”, prohibited outsourcing “inherently governmental functions” and cautions against outsourcing functions “closely associated with inherently governmental.”

2012                Technical correction to Policy Letter 11-01 made “to clarify that the Policy Letter applies to both Civilian and Defense Executive Branch Departments and Agencies.”

In Section 733 of P.L. 112-74, The Consolidated Appropriations Act for FY2012 prohibited funds from being used to begin/announce a study of public-private competition.

Obama Administration FY2013 Budget Request sought to prohibit conduct of future public-private competitions under circular A-76.

2013                Prohibition is continued.

2015                Prohibition is continued.

THE STATE ACTION DOCTRINE AND THE DEFINITION OF PUBLIC FUNCTION

In the United States, the legal system draws a constitutionally significant distinction between the public sector, defined as government and its agencies and officials, and the private sector, including civil society, defined as the multitude of nongovernmental, voluntary communal and religious associations through which individuals may act and connect. That distinction is a crucial, if unarticulated, element of most U.S. policy decisions, because only government actors can violate the American Bill of Rights, which limits government actions but not private behaviors. Based upon this particular understanding of the relationship of public and private behaviors, the American Constitution does not grant affirmative rights; it limits the power of the state to infringe private ones. This is not the case in many other Western democratic states, where it is common to have a constitutional system that both restrains and empowers government, and where social entitlements frequently are embedded in the constitution.

As a result of the United States’ approach, sometimes called “negative liberty”, a transfer of authority to nongovernmental agents is more than merely a management problem, as it is in many other countries, because constraints on the use of governmental authority are fundamental to the United States’ political and constitutional order (Kennedy 2012). “The Bill of Rights restrains only government action, making it essential that citizens and public managers alike be able to identify when government has acted” (Kennedy 2012, 1). The growth of contracting arrangements has made that identification increasingly problematic, blurring the boundaries between private and public action and making it difficult in many situations to determine whether a particular action or decision can fairly be categorized as governmental (Kennedy 2012). The result, in the opinion of many scholars, has been a loss of essential governmental accountability and thus legitimacy (Brown 2008; Metzger 2003; Kennedy 2001; Gilmour and Jensen 1998).

In making a determination whether state action is present, the courts will consider a number of elements, including but not limited to whether the function in question has traditionally been performed exclusively by government. As the practice of contracting out has grown, courts have increasingly been faced with cases in which the presence of state action sufficient to impose legal liability is less than clear-cut; accordingly, the question of what constitutes a public function for purposes of constitutional jurisprudence has changed over time. The inconsistencies of those changes have prompted calls for clarity from lawyers and legal scholars alike.

Current Status of the Relationship between State Action and Public Function

The Supreme Court has not discarded the idea that some governmental activities are in fact inherently “public functions.” It has, however, over time changed its approach to defining what those activities are, and not in a coherent fashion. In 1992, Justice Scalia began his state action analysis in the case of Lebron v. National Railroad Passenger Corporation with an observation that “It is fair to say that our cases deciding when private action might be deemed that of the state have not been a model of consistency.”  It is hard to disagree, and subsequent jurisprudence has not remedied the problem.

In the early 1940s, “the Court first expanded the meaning of state action to include private actors performing a government function (Smith v. Allwright 1944) and private action in which the state is significantly involved” (Peretti 2010, 273).  Since Marsh v. Alabama in 1946, however, the Court has been wary of too expansive an application of the state action doctrine in public function cases (Wirth 2014).  The evolution of legal doctrine defining what the courts will consider to be a public function can be seen not only when the Court finds a particular defendant a state actor, but also when it declines to do so.  For example, despite the common assertion that state action will be found when government exercises its coercive power or has provided significant encouragement of the decision at issue, in Blum v. Yaretsky, the Supreme Court declined to find state action even though the private nursing home’s medical personnel were obeying specific government regulations.  The ruling in Blum v. Yaretsky, among other cases, highlights the reluctance of the courts to deem private parties state actors.  Today, courts will typically find state action under the public function test when three conditions are present: (1) the activities have traditionally been performed only by government; (2) the private actor’s undertaking of the activity substantially replaces the government’s traditional performance of the function; and (3) the private activity is substantially aided by the state.

The Evolution of Public Function Application in State Action Cases

In a number of rulings, the Supreme Court has found private actors’ performance of governmental functions sufficient to make these parties agents of the state.  Judicial decisions focused upon state action and public function have centered on the First, Eighth, Fourteenth, and Fifteenth Amendments to the United States Constitution although, theoretically, state action may be found when any constitutional provision is at issue.  The rather limited set of issues on which the Court has based its rulings in this area suggests that the Court is more likely to find state action when the liberty interest involves freedom of speech, cruel and unusual punishment, equal protection and due process, and the right to vote, as Table 1 illustrates.

Cases implicating civil rights, especially the right to vote, led to the birth of state action doctrine and the legal interpretation of public function.  In two foundational cases, the court held that conducting elections is “exclusively a state function and invalidated racial discrimination by non-governmental groups (political organizations or parties) who exercised effective control over the selection process of candidates in a primary or pre-primary process” (Hunter, Shannon, McCarthy 2013, 67).  In Smith v. Allwright (1944), the Democratic Party of Texas, a voluntary organization, was held to be a state actor when Smith, a black man, was denied the right to vote on the basis of his race.  Because the state of Texas governed the selection of party leaders at the county level, the practice of racial discrimination in elections was considered a violation of constitutional rights by the state.  In Terry v. Adams (1953), a private association denied a citizen the right to vote on the basis of race.  The Supreme Court upheld the precedent in Smith: if a private political party is authorized to influence the outcome of an election, which is a function of government, the private actor will be found to be an agent of the state subject to the Fifteenth Amendment.  Smith v. Allwright and Terry v. Adams established that most, albeit not all, election functions traditionally performed by government will be deemed to be public functions.

Court rulings grounded in the First and Fourteenth Amendments (and on two occasions the simultaneous violation of both) (Marsh v. Alabama 1946 and Amalgamated Food Employees v. Logan Valley Plaza 1968), further developed the state action doctrine following the early civil rights cases.  In multiple cases, court rulings extended the doctrine beyond government actions to encompass functions that the Court deemed “governmental in nature”.  In Marsh v. Alabama, a Jehovah’s Witness disseminated religious literature near a post office in Chickasaw, Alabama, a company town, without obtaining permission from the Gulf Shipping Corporation, the owner and operator of the town.  The question before the court was whether the State of Alabama violated Marsh’s constitutional rights under the First and Fourteenth amendments when she was arrested for distributing religious material.  In a 5-3 ruling, Justice Hugo Black emphasized that owners of privately held bridges, ferries, turnpikes, and the like may not operate them as exclusively private entities. Rather, because these facilities are built and operated primarily for the benefit of the public and are governmental in nature, they will be subject to state regulation and required to operate in a constitutionally appropriate manner. Even though Chickasaw, Alabama was a “company town”  owned and operated by a private corporation, the court emphasized the town’s numerous public attributes, including the fact that the town’s policeman was a deputy from the Mobile County Sheriff’s Department. In Evans v. Newton (1966), the Court built upon the precedent set in Marsh and held that prior governmental involvement in the operation of the public space compelled a finding of state action; the case revolved around the use and maintenance of a tract of land which had been willed to the City of Macon, Georgia in 1911, to be used as a park for white people only.

Freedom of speech was the central constitutional issue in Amalgamated Food Employees v. Logan Valley Plaza (1968).  The Court was faced with a case concerning a protest occurring at a shopping center that maintained common areas, including parking lots and driveways; the question was whether the premises were public or private for purposes of evaluating protestors’ Free Speech rights.  The Court concluded that individuals may peacefully protest based on their First Amendment rights, since the shopping center was the “functional equivalent” of the business district of a town.  Citing Marsh, the Court used the case to further clarify its application of the state action doctrine and the degree to which it will consider common areas sufficiently public to justify constitutional analysis.  The more an owner opens private property to public use, the more the owner’s private rights become limited by the rights of the individuals who use it (Amalgamated Food Employees v. Logan Valley Plaza).  Legal scholars consider the precedent set in Amalgamate Food Employees v. Logan Valley Plaza the high-water mark of the public function theory (Huss & Simmons, 1976); the difficulty of balancing the competing public and private rights involved becomes apparent in subsequent litigation. The Court would revisit the issue four years later in Lloyd Corp. v. Tanner (1972), and would reverse course in Hudgens v. NLRB (1976).

The court held in Lloyd Corp v. Tanner (1972) and Hudgens v. NLRB (1976) that exclusively private property is not public property just because the public is invited to use the property for its intended purpose. In addition, due process guarantees will not apply to a plaintiff in situations where the state merely acquiesces to private actions (Flagg Bros v. Brooks 1974); when an action is not traditionally or exclusively reserved to the state (Jackson v. Metro Edison 1974); and when no symbiotic relationship exists between the state and private party (NCAA v. Tarkanian 1988; Baker v. Kohn 1982; San Francisco Arts & Athletics v. US Olympic Commission 1987).

In West v. Atkins (1988), a Fifth Amendment case in which a private contractor provided health care services to prisoners for a state hospital, the contractor was operating under state authority and was found to be a state actor performing a public function. In Edmonson v. Leesville (1991), the Court held that the right to trial by a fair and impartial jury is a guarantee issued by government, and the fact that private litigants dictated race-based exclusions during jury selection process would not deprive the litigant of a that constitutional guarantee.  When private actors participate in the selection of jurors, they serve a vital function within the government and are agents acting under its authority.

Careful consideration of the issue of state action should be a critical component of decisions by government agencies to contract out. Both the government and the contractor need to understand whether and under what circumstances the contractor’s actions will be legally attributable to the government, and where the ultimate liability will lie in the event of a successful lawsuit by a third party.

 

[Table 1 about here]

DISCUSSION AND CONCLUSIONS

“The development of a coherent and comprehensive understanding of state action begins with a multi-issue inquiry (ideally by all branches at all levels of government) into the nature of every transfer of government authority.” (Gilmour and Jensen 1998, 25).  Inquiry is necessary at three points—when the decision to delegate authority is made, during administrative oversight, and during judicial review. OMB Circular A-76 is concerned with the first point, the initial decision to contract out. It outlines a broad set of criteria to determine whether or not a function is appropriate for outsourcing or should be discharged by government through its own employees.  A-76 approaches that inquiry based on issues involving discretion and authority, rather than history.   In contrast, the courts’ “public function” test is applied to a situation in which that initial determination has already been made. Courts must determine whether the private entity employed by government was functioning as a state actor, justifying a finding of state action for the purpose of settling claims arising out of action that has already occurred.  In the process of assessing the public function test in order to determine the presence of state action, the courts look at several factors, including whether the activity in question has traditionally been performed exclusively by government.

These two approaches, the administrative and the legal, can complement each other, with A-76 providing guidance to public administrators as to whether or not something is a government function – even if it has been contracted out (state action can be attributable to private actors). Even if the Executive Branch approach to defining public function differs from the more limited instances in which the courts will find state action, recognizing the circumstances within which the courts will assess liability will inform contract negotiations and drafting, and avoid inadvertent assumptions of liability.  The courts have established a high bar for determining which functions are “public functions” and for determining when a contractor will be found to be a “state actor.” Understanding this jurisprudence may help both government and those with whom they contract to insulate private actors from constitutional claims that would apply if government performed the same functions (Buchanan et al. 1997), without inadvertently depriving citizens of constitutional protection.

Furthermore, encouraging those acting on behalf of the Executive Branch to familiarize themselves with what the courts have held in order to rationalize their respective definitions of public function is also important; when government is engaging in outsourcing, those responsible need to understand how their administrative decisions will be reviewed and interpreted in the event of litigation.  What makes this particular inquiry difficult, and may account for what seems to be an existing disconnect between the Executive Branch definition and the legal doctrine, is the lack of specificity of the former and the lack of clarity of the latter. The legal scholarship critiquing the Court’s state action jurisprudence and pointing to the practical problems raised by the incoherence of that jurisprudence is copious. When we counsel public administrators to follow the guidance of the courts, we assume that the courts are actually offering that guidance. When the various tests applied by different Circuit Courts differ from each other and from cases decided by the Supreme Court, guidance is hard to come by.

As Brown’s (2008) law review article concluded, “Balancing the United States Supreme Court’s tests with individual circuits’ applications of these tests, all while carefully excluding inapplicable precedents” (581) is a difficult analytical task facing courts in modern state action cases.

Losing the court’s favorability in recent decades, due in part to the judiciary’s utter confusion with this area of the law, modern courts are hesitant to authoritatively find state action. The state action doctrine is slowly descending into utter confusion, where private parties remain unaware of what conduct subjects them to Constitutional restrictions, and courts are unclear as to the appropriate state action standard. The time has come for the United States Supreme Court to declutter the state action doctrine by combining tests, shedding unnecessary terminology, demystifying the state action doctrine, and giving the lower courts a tangible standard with which to work (581)

The lower courts would not be the only beneficiaries of such clarification. Public administrators and private contractors could base contracting decisions on accessible and consistent guidelines, and (in an ideal world) citizens could be confident that protection of their constitutional liberties was an important and conscious element of governmental contracting decisions.

Clearly, the advancement of public policy objectives is “not the exclusive province of government, nor is government the only institution having public obligations, [though clearly] government has a special role as a guarantor of public value” (Jorgensen and Bozeman 2007, 373-374).  As a guarantor of inherently governmental functions and public functions and primary contributor to the public value that emerges from these activities, government will benefit from resolving the tension between administrative and legal conceptions of public.

 

Cases cited

Smith v. Allwright, 321 U.S. 649 (1944).

Marsh v. State of Alabama, 326 U.S. 501 (1946).

Terry v. Adams, 345 U.S. 461 (1953).

Evans v. Newton, 382 U.S. 296 (1966).

Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978).

Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974).

Blum v. Yaretsky, 457 U.S. 991 (1982).

Rendell-Baker v. Kohn, 457 U.S. 830 (1982).

San Francisco Arts & Athletics v. United States Olympic Committee, 483 U.S. 522 (1987).

Hudgens v. NLRB, 424 U.S. 507 (1766.)

National Collegiate Athletic Association v. Tarkanian, 488 U.S. 179 (1988).

 

West v. Atkins, 487 U.S. 42 (1988).

Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).

Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968)

Lloyd Corp. v. Tanner, 407 U.S. 551 (1972)

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Brown, Julie K. 2008. Less is More: Decluttering the State Action Doctrine” Mo.L.Rev., 73:561.

Brown, Trevor L., Matthew Potoski, and David M. Van Slyke. 2009. Contracting for complex products. Journal of Public Administration Research and Theory 20:i41-i58

Bryson, J. Crosby, B, and Bloomberg, L. 2014. Public Value Governance: Moving Beyond Traditional Public Administration and the New Public Management. Public Administration Review 74:445-456.

Bryson, John M., Barbara C. Crosby, and Laura Bloomberg. 2014. Public value governance: Moving beyond traditional public administration and the new public management. Public Administration Review 74: 445-456.

Buchanan, G. Sidney, Charles L. Black Jr, William J. Novak, and Gillian E. Metzger. 1997. State Action and the Public/Private Distinction. HOUS. L. REV. 1367:1248

Denhardt, Robert B., and Janet Vinzant Denhardt. 2000. The new public service: Serving rather than steering. Public administration review 60: 549-559.

Gilmour, Robert S., and Laura S. Jensen. 1998. Reinventing government accountability: public functions, privatization, and the meaning of “state action”. Public Administration Review 247-258.

 

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Hunter Jr, Richard J., John H. Shannon, and Laurence McCarthy. 2013. Fairness, Due Process and NCAA: Time to Dismiss the Fiction of the NCAA as a Private Actor. J. Pol. & L. 6:63.

Huss, Richard B. and Richard J. Simmons. 1976. Hudgens v. NLRB: Protection of Shopping Center Picketing under the Constitution or NLRA? , Industrial Relations Law Journal (1976): 632-655.

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Malatesta, Deanna, and Julia L. Carboni. 2015. The public–private distinction: Insights for public administration from the state action doctrine. Public Administration Review 75:63-74.

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Osborne, David and Ted Gaebler. 1993. Reinventing Government; How the Entrepreneurial Spirit is Transforming the Public Sector. New York: Plue.

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Perry, James L., and Hal G. Rainey 1988. The public-private distinction in organization theory: A critique and research strategy. Academy of management review 13:182-201.

Rainey, Hal G., Robert W. Backoff, and Charles H. Levine. 1976. Comparing public and private organizations. Public administration review 36:233-244.

Rosenbloom, David H., and Suzanne J. Piotrowski. 2005. Outsourcing the constitution and administrative law norms. The American Review of Public Administration 35:103-121.

Stoker, Gerry. 2006. Public value management: a new narrative for networked governance? The American review of public administration 36:41-57

Sullivan, Harold J. 1987. Privatization of public services: A growing threat to constitutional rights. Public Administration Review 461-467.

Urwick, Lyndall. 1945. The Elements of Administration. New York: Harper and Brothers.

Verkuil, Paul R. 2007. Outsourcing sovereignty: Why privatization of government functions threatens democracy and what we can do about it. New York: Cambridge University Press.

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Wirth, Stephen K. 2013. State Action, Government Speech, and the Narrowing Spectrum of Private, Protected Speech. Cornell L. Rev., 99, 485.


 

Table 1

 

Supreme Court Rulings on State Action Cases involving Public Functions

 

Year Case Finding of state action? Public Function
1944 Smith v. Allwright yes elections
1946 Marsh v. State of Alabama yes public space (in company-owned town)
1953 Terry v. Adams yes elections
1966 Evans v. Newton yes public space (desegregation of park)
1968 Amalgated Food Employees v. Logan Valley Plaza yes public space (trespass on private property)
1972 Lloyd Corp. v. Tanner no public space (trespass on private property)
1974 Flagg Bros., Inc. v. Brooks no public space (trespass on private property)
1974 Jackson v. Metropolitan Edison Co. no utility
1976 Hudgens v. NLRB no public space (trespass on private property)
1982 Blum v. Yaretsky no state subsidized healthcare
1982 Rendell-Baker v. Kohn no education
1987 San Francisco Arts & Athletics v. United States Olympic Committee no national interests
1988 National Collegiate Athletic Association v. Tarkanian no due process
1988 West v. Atkins yes state subsidized healthcare
1991 Edmonson v. Leesville Concrete Co. yes civil trial jury selection
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