Katharine Jackson (University of Cincinnati – College of Law) has posted Participation’s Promise and Peril: Substantive Political Equality and the Administrative State on SSRN. Here is the abstract:
As Blake Emerson observes, “[the] problem of legitimacy has been a central preoccupation of administrative law scholarship for generations.” The distance between citizens and rulemaking bureaucrats has always yawned broadly within the imagination. To bridge the gap between sovereign administrator and individual subject, scholars, regulators and policy entrepreneurs draw from participatory democratic principles as they urge agencies to build more inclusive procedures into their decision-making process. Taken up by the recent Biden administration, public participation was offered as an improvement to and an implicit critique of expert-based technocratic managerialism. Some even suggest that direct democratic participation can provide a treatment to cure broader public distrust in liberal democratic institutions.
Any idea that brings government closer to the people is necessarily appealing. Democracy promises, after all, that citizens will govern themselves. At the same time, pretending that any small part of a populace can speak with the voice of the people lands us in dangerous territory. When presidents claim to speak for the people, they often erase minority interests and insist that laws and constitutions should not bind them. When legislatures claim to speak for the people, they do so over the protests of a populace that holds them in ever more contempt. When lawmakers couch themselves as oracles of the public will, they occlude their own role in setting policy. They imply that they are not autonomous agents implementing contestable value choices, but instead the popular sovereign’s mere messengers. Stated more directly, the gap between ruler and ruled is ineliminable. Pretending otherwise leads to illiberal, undemocratic outcomes. Democracy’s promise of “rule of the people” is a paradox. How unelected members of deliberative bodies might avoid this problem – when leaders elected through a universal voting process cannot – is a conundrum that proponents of public participation have yet to resolve.
In this chapter, I argue that the conundrum is irresolvable. Unlike other objections to participation – its inefficiency, its vulnerability to gaming by well-resourced actors, the rational ignorance or apathy of citizen participants – it cannot be ameliorated through well-designed policy choices. Drawing from recent work by political theorists Nadia Urbinati and Christina Lafont, the chapter explains why ascribing decision-making authority to a bespoke group of citizens is just as anti-democratic as ascribing decision-making authority to a nationally elected president. The reason is this: theories of direct participation draw from the same fallacious “embodiment” theory of representation found in populist political movements. Simply, this model holds that a part can speak and act for the whole because it adequately mirrors the populace itself. It is a relationship of identity, not advocacy, accountability, service, duty, and so on. Just as a populist president claims to speak with the “voice of the people,” a participatory body claims to speak for all – notwithstanding what the actual populace might have to say about it. The inclusion of participatory bodies in administrative decision-making for the sake of democratic legitimacy therefore obscures the autonomous judgments made by the participatory body. It imagines that those judgments are precisely those the rest of the population would make. In Rousseauian terms, it renders sovereign and subject indistinguishable.
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