Fordham Law School
This article is an attempt to draw some general connections between privatization and political accountability. Political accountability is to be understood as the amenability of a government policy or activity to monitoring through the political process. Although the main focus of the article is to examine different types of privatization, specifically exploring the ramifications for political accountability of each type, I also engage in some speculation as to whether there are there situations in which privatization might raise constitutional concerns related to the degree to which the particular privatization reduces political accountability for the actions or decisions of the newly privatized entity. Although some states have constitutional constraints along these lines,1 current federal constitutional law does not address directly the constitutionality of privatization along political accountability lines. However, if a majority of the Supreme Court becomes convinced that a particular government practice presents serious problems, constitutional limits can be erected in relatively short order.
Court-created constitutional limits on privatization concerning political accountability have antecedents in recent Tenth Amendment jurisprudence2 and not-so-recent nondelegation cases. In some nondelegation cases, it was important that policymaking was delegated to a private group.' Political accountability has, in recent years, become very important in Supreme Court Tenth Amendment cases. Specifically, the Court has invalidated what it views as federal "commandeering" of state and local government agencies and officials on the normative ground that such commandeering obscures lines of political accountability.5
There are so many varieties of "privatization" that privatization is difficult to define and analyze comprehensively. Most generally, privatization denotes the moving of something that had been in the public sphere into the private sphere. However, movement from public to private is not absolutely necessary, because something may be called privatized even if it always has been private, merely because it is publicly administered in another jurisdiction. Privatization analysis also captures entities such as government corporations that straddle the public/private divide and were created to address a particular policy problem in ways that are not clearly public or private. Further, although marketization and deregulation may be more accurate appellations, privatization may be used to describe an entity or activity that was always privately owned but has moved from a heavily regulated status to a less regulated one.' The privatization label is accurate because decisions that were once made in a regulatory agency now are made privately in response to market forces.
Privatization thus denotes a broad spectrum of adjustments to the interaction between government and various private actors. One concern about privatization is that it can lead to less political accountability. In order to evaluate privatization through a political accountability lens, two questions need to be answered. First, has privatization actually reduced political accountability? Second, if political accountability has been reduced, is it a cause for concern in the particular context?
Viewed through the lens of political accountability, it quickly becomes clear that all privatizations are not created equal. Some forms of privatization may tend to reduce political accountability, some forms may be neutral, and some, surprisingly, actually may increase political accountability. The main purpose of this article is to look for these differences among different types of privatization. Part I introduces the concept of political accountability, with an eye toward speculation on whether a constitutional law of accountability in privatization might develop. Part II describes different categories of privatization and examines each type of privatization for its effects on political accountability, with some appropriate excursions into accountability-based or influenced constitutional doctrines. Part III briefly discusses the application of the Freedom of Information Act and related statues and the Administrative Procedure Act to the activities of entities involved in privatization. The article concludes with a plea for a non-ideological attitude toward privatization, based on the variations among privatizations in political accountability and other terms.
Jack M. Beermann,
Privatization and Political Accountability
Fordham Urban Law Journal
Available at: https://scholarship.law.bu.edu/faculty_scholarship/1995