Privatization and Democracy: Resources in Administrative Law

Abstract

Governing by contract in the U. S. today should be understood as integral to the processes, both political and economic, that made privatization a major domestic response to as well as driver of globalization. Faced with increased competition in global markets, the “Reagan revolution” responded with a domestic political program aimed, in part, at curtailing market regulation and other government functions in favor of “privatization.” Globalization as we understand it today in the United States is inseparable from its domestic politicization as neoliberal reform because they were, and are, interrelated as mutual cause and effect. Democratic and Republican administrations over the past two decades have claimed electoral mandates for government reforms under the banner of (in successive eras) “privatization,” “contracting out,” “competitive sourcing,” as well as other means of “disembedding” the state from the market. Today, the dominance of the public/private distinction as a feature of governance and contemporary political vocabulary makes it difficult for us to recognize these frames as something other than common sense categories, and their effects as anything other than a rational response to the natural operation of the global economy. It also makes it difficult to conceptualize alternatives. This essay argues that alternatives and the application of administrative law principles are necessary if we are to repair the democracy deficit attendant on the common sense view that markets and government operate in separate spheres, such that markets belong to a global sphere, while government is domestic.

Keywords: Administrative Law, Privatization, Outsourcing, Globalization, Neoliberalism, Democracy Deficit, Participation, Accountability, Public/Private Partnerships