Which Public? Whose Interest?

Recent attacks on the administrative state have been framed as the culmination of a conservative backlash against the post-war buildup of the federal bureaucracy. Conservatives have defended recent Supreme Court decisions that limit the scope of bureaucratic agencies’ power on the grounds that the heads of such agencies are unelected and unaccountable to the people. They contrast the administrative state with Congress, which they claim better represents the interests of voters. Citing the “major questions doctrine,” conservatives argue that policy decisions significantly affecting the US economy require explicit and detailed mandates from Congress. In the case of West Virginia v. Environmental Protection Agency, the economic impacts in question largely involved the coal industry, which would be affected by potential EPA policies.

The conservative legal movement has been at the forefront of the movement to gut the administrative state. But as Paul Sabin argues in his recent book Public Citizens: The Attack on Big Government and the Remaking of American Liberalism, liberals in the public interest movement also helped to undermine the legitimacy of the federal bureaucracy. Indeed, public interest movement leaders like Ralph Nader railed against “big government” in the 1960s and 1970s and pioneered many of the litigation tactics that conservatives would eventually adopt. According to Sabin, while the public interest movement was right to critique government’s unresponsiveness to ordinary Americans, its approach ultimately opened the door to what would become the New Right. The public interest movement’s anti-government rhetoric helped popularize a skepticism of bureaucratic expertise and centralized government action while its neglect of mass politics and reliance on non-profit legal advocacy weakened the left-liberal coalition.

Sabin’s analysis revolves around two central tensions. The first relates to a challenge that has long faced left movements: whether to apply pressure on the state from the outside or to embed movement activists within the state, both as administrators and elected representatives. The public interest movement largely adopted an outside strategy, viewing any bureaucracy – whether embedded in government, private corporations, or unions – as inherently vulnerable to corruption. Thus, the movement conceived of itself as a counterforce or “third force” that would represent ordinary citizens through lobbying and litigation to keep political and economic elites in check.

The story of the public interest movement also reveals the need for any governing coalition to navigate the tension between “invigorating” the state and “improving” it. For Sabin, balancing these two imperatives is vital because in order for any government function to be defensible, it must have legitimacy in the eyes of the governed. While this is certainly an important insight, and one that has been neglected within left movements, Sabin’s conception of what invigorating and improving the state actually means is deeply flawed from a democratic socialist perspective. While Sabin is sympathetic to the public interest movement’s efforts to create and defend robust government regulations and checks on corporate power, he nonetheless accepts many of the terms of the conservative debate. For example, he argues that the central challenge of governing is to “marshal the efficiency of markets, the accountability provided by citizen activism, and the collective power of government action.” In this formulation, the antidote to dysfunctional government is not only more citizen participation, but the abdication of certain functions to market actors. By conceiving of market, state, and citizenry as separate entities, Sabin, like the public interest movement itself, falls into the trap of arguing over the correct size of government – seen to correlate with individual freedom – rather than the content of government action.

Perhaps the biggest missed opportunity in Public Citizens is the failure to interrogate a question that scholars like Leo Panitch have consistently asked – what might it look like for a left-wing government to effectively implement left policies that disempower elites? Sabin at times seems to endorse the neoliberal reforms that President Jimmy Carter and the New Democrats pursued in the name of rebuilding citizens’ confidence in government. While the public interest movement certainly failed in proposing more positive steps in this direction, Sabin’s examples of successful efforts to do so are not the kinds of reforms the broad Left, from left-liberals to democratic socialists, should emulate.

Given how malleable concepts like “unelected, unaccountable bureaucrats” and “citizen participation” are, we should avoid thinking that these sorts of criticisms have a necessarily progressive political valence. What’s more, any conceivable democratic socialist – or even a more progressive capitalist – political economy will need a system of public administration capable of efficient management and regulation. The Left should be prepared to do the work of organizing the broad popular support that is required to sustain them.

Primacy of Politics

The public interest movement was a reaction to the idea, common among the Keynesian managers of the postwar economy, that decisions about the economy and social welfare were best left in the hands of expert bureaucrats. This theory of administration reflected a Progressive Era belief that scientific expertise could overcome the inefficiencies and inertia resulting from excessive litigation and conservative obstructionism in the legislature. For liberal politicians from Franklin D. Roosevelt to John F. Kennedy, the purpose of government was to carry out the public interest against the interests of corporate elites. This belief in the effectiveness and ethical integrity of government legitimated the unprecedented build-up of the federal bureaucracy following the Great Depression and World War II, including both its regulatory apparatus and productive capacities.

However, by the early 1960s, criticism of and resistance to the administrative state was building. While conservative forces never gave up their fight against federal intervention into their affairs, ordinary Americans were increasingly outraged at the impacts of large-scale federal programs and demanded greater protection from harmful consumer products. Scholars and activists increasingly pointed to the problem of “regulatory capture,” whereby the proximity of regulators to regulated industries was encouraging even the most dedicated public servants to prioritize the interests of large corporations.

The public interest movement cohered in this moment in part to make government more responsive to the will of ordinary people. Public interest activists blamed everything from urban renewal and dam building, to leniency with auto manufacturers and fossil fuel companies, on a corrupt and sclerotic federal bureaucracy. According to leading figures like Ralph Nader, “big government” was in the pocket of both big corporations and big labor. They believed in the fairness and effectiveness of litigation and working through the courts. To do so, they formed nonprofits led by lawyers, and viewed these as “horizontalist” organizations even though their members tended to only exist on paper. The public interest movement viewed the courts as a neutral playing field, where all parties could have a fair hearing. Sabin argues this was in part because the leaders of the movement tended to be lawyers from elite backgrounds and Ivy League law schools. He also argues that public interest activists, like many in politics at the time, operated under the assumption that liberalism was securely hegemonic at the national level. For this reason, the public interest movement also advocated stripping bureaucrats of their discretionary power and empowering Congress to regulate.

In Sabin’s telling, public interest activists eventually split up into two main camps: those who thought better experts could replace corrupt ones, and those who believed that power corrupted anyone, even those sympathetic to the public interest movement. Signaling the rising influence of the public interest movement by the 1970s, President Carter appointed many of the movement’s activists to administrative roles. Sabin argues that despite the criticisms of some public interest movement activists, Carter’s environmental record had been historic thanks to the active participation of movement leaders in his administration.

However, Nader argued that the public interest movement needed to be a permanent force pushing the government from the outside through litigation, and from the inside through a federal consumer ombudsman. Unsatisfied with some of the decisions the Carter administration made, like its authorizing the continuation of nuclear power plant construction, public interest movement activists began claiming that the major political parties were indistinguishable and many withdrew their support for Carter during his second run for president in 1980. According to Sabin, the public interest movement’s abandonment of the Democratic Party in – not in favor of the Republican Party, but rather independent, third party-building, namely Barry Commoner’s failed Citizens Party campaign – contributed to the weakening and fracturing of the liberal-left coalition that dominated national politics after World War II.

Ultimately, the assumption of indefinite liberal hegemony would soon be exploded by the rise of the New Right to national prominence. For a brief period, the public interest movement was successful in using the courts and legislature as a check on pro-business heads of executive agencies, but they did not anticipate rising gridlock or increasingly the rightward turn that Congress or the courts would take. Further, the public interest movement wanted the administrative state to be responsive to “the people,” but failed to grasp just how contested this category is and the need to struggle over its content. The conservative legal movement soon appropriated the concept for its own ends.

The regulations the public interest movement pushed for continue to serve a vital role in protecting vulnerable communities, but they tended to be won in the absence of organized, broad-based support. Sabin writes, “By primarily playing the role of uncompromising outside critic, the public interest movement neglected to build support for government in a way that could facilitate policy-making in a politically divided nation or that could support internal reforms that might improve government operations.” In short, their theory of how to keep strict safety, health, and environmental regulations in place lacked a political component that would ensure the maintenance of progressive majorities in Congress and state legislatures. The public interest movement was right to be critical of any attempt to defer to elite business interests, but their strategy of pushing from the margins was counterproductive to even their own goals. Sabin ultimately argues that the public interest movement was too marginalized to influence policy and effect the change they so vociferously advocated. In conceiving of any public interest activists who entered federal administrations as sell-outs, the movement could only ever push from the outside.

Rejecting Red Herrings

The public interest movement stressed that ordinary Americans needed to have a voice in the affairs of government. They were certainly right about this, but their conception of how to achieve this end was fundamentally flawed. Unfortunately, the Left has only recently begun to grapple with these questions. What would it look like for state institutions to really be more democratic and serve the will of ordinary Americans?

As Leo Panitch and other democratic socialists have argued, the choice between “state” and “market” is a false one. When the political economy is conceived as a contest between state and market, the only alternative to a poorly functioning government is to make the market more prominent. But what if the problem with a malfunctioning state is too much dependence on a market designed to generate inequality?

The public interest movement was a staunch advocate for deregulation of the airline and trucking industries, arguing that the monopolistic regulation of these industries ultimately harmed consumers. The movement also popularized the idea that the people are separate from the government, rather than constitutive of it. That is why the new conservatives and New Democrats alike could so easily refer to the American people as “customers” without missing a beat.

Sabin’s analysis hinges on what he claims is a central challenge for any government: finding a balance between “invigorating” the state and “improving” it. In this formulation, government must be continuously improved in order to maintain support for government, including the expansion of government functions. For Sabin, Jimmy Carter’s administration epitomized the kind of nuanced approach that balances these two imperatives.

One major implication running throughout the book is that improving government will necessarily entail abdicating state control or discretion to “the market.” Because the state and market are juxtaposed in Sabin’s analysis, the only solution to dysfunctional government is to inject it with a dose of market efficiency. This is interesting because he also characterizes the activities of Nader and his associates in the 1960s and 1970s as “anti-government” even though the policies and institutions they advocated for were more concerned about the “inherent limitations and flaws” of the market.

We do need to make government work better, but hollowing out the administrative state will not achieve this end. Today, conservatives are busy turning decisions over major economic and social questions to legislatures that are, at the same time, insulated from democratic accountability through attacks on voting rights and extreme forms of gerrymandering. In these circumstances, making federal agencies “accountable” to legislative reactionaries is not the same as making government work better for the people. The question remains: who exactly are “the people,” and how do they get to express their interests and concerns?

The public interest movement was highly skeptical of centralized control over economic functions in the federal government. The recent Supreme Court decision limiting the power of the EPA invoked a similar idea, specifically that decisions with far-reaching ramifications should be left to Congress, not “unelected bureaucrats” in administrative agencies. Conservatives instrumentalize arguments in favor of representative democracy when it suits their aims, while eschewing it in favor of executive authority when popular will conflicts with their goals. The idea that laws directing federal agencies to act with their own discretion constitute an illegitimate exercise of power undermines the very idea of civil service and representative democracy. It also harms the ability of government actors to serve the needs of the people, counter to the claim that limiting the discretion of bureaucrats makes them more responsive to the people. We should instead ask: Responsiveness to which people and towards what ends?

One of Sabin’s most astute contributions is his contention that progressives and the Left need to pursue “the institutional power necessary to make political change” instead of just setting ourselves up as external gadflies. The public interest movement didn’t solve the problems of regulatory capture or bureaucratic indifference, but its “emphasis on purity and its frequent disdain for traditional institutions, including political parties and unions, turned a generation of liberals away from local and state politics, and from the pursuit of the institutional power necessary to make political change.” In this way, it failed to create a genuine popular alternative to the expertise-led bureaucracy it criticized.

Sabin ultimately recognizes that public interest activists like Nader ironically adopted “full-throated defense of government regulation” when Ronald Reagan was elected in 1980. But here is where Sabin ultimately errs in his analysis of the public interest movement’s own limitations. In accepting the terms of debate as one between “pro-” and “anti-” government forces, Sabin misses what was at stake for people like Nader. The question for them was not fundamentally whether the government was big or small, strong or weak (though some public interest activists framed it in this way), but whether the government carried out the will of the people. That is, public interest activists saw federal regulations as a means to the end of improving the lives of the oppressed, exploited, and marginalized. In this sense, we might think of the big/small government debate as a red herring, which distracts from more fundamental questions about who the state protects and supports, either through direct or indirect means. Conservative reactionaries would prefer to limit the public debate to one over the ostensible size of government. But in any modern political economy, we are going to get big government whether we like it or not – the question is whose interests does it serve? Those of us who want to marshal its power to support working people and the marginalized should not accept their terms.