Copyright 2016
THE BROOKINGS INSTITUTION
1775 Massachusetts Avenue, N.W., Washington, D.C. 20036
www.brookings.edu
All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means without permission in writing from the Brookings Institution Press.
The Brookings Institution is a private nonprofit organization devoted to research, education, and publication on important issues of domestic and foreign policy. Its principal purpose is to bring the highest quality independent research and analysis to bear on current and emerging policy problems. Interpretations or conclusions in Brookings publications should be understood to be solely those of the authors.
Library of Congress Cataloging-in-Publication data are on file.
ISBN 978-0-8157-2898-6 (pbk)
ISBN 978-0-8157-2899-3 (ebook)
9 8 7 6 5 4 3 2 1
Typeset in Simoncini Garamond
Composition by Westchester Publishing Services
INTRODUCTION
With this book we make the case that private governancebinding rules made by nongovernmental groups that affect the opportunities and welfare of the broader publicis a significant and growing phenomenon. It should be recognized by professionals and studied and investigated as a distinct field of inquiry by policy scholars. We also believe that journalists should report on private governing activities as systematically as other beats and that those activities should be opened to public scrutiny.
An earlier book written by two of us, Smoking and Politics: Bureaucracy Centered Policymaking ,elected chief executives, and courts. Most newspapers and other nonspecialized media pay too little detailed attention to agency rulemaking and almost none to the setting of authoritative regulations, rules, and standards by private groups.
Since the mid-2000s, the three of us have been working on aspects of the topic of private governance. Catherine E. Rudder has published in the area, identifying and illustrating its myriad workings and wrestling with the difficulties that this domain poses.
Perhaps the most problematic aspect of the concept of private governance is the distinction between the words public and private , in that the division does not hold once private governance is exposed. This book shows that private governance is actually public, both that which is delegated by statute to a private group and that which arises independently. If private governance is not considered public, the idea that people in democratic societies live in communities largely of their own collective making loses meaning. By accepting private governance as private, people lose control over much of what shapes their lives, their opportunities, health, and welfare. At the same time, to interfere with private governance is to risk losing some of its contributions to providing the high-level expertise needed for intelligent policymaking today, responsiveness to technological change, networks that reduce the global governance gap, and alternatives to the state.
Another difficulty that the concept of private governance poses is that few people have ever heard of it, much less can define it. In fact, defining it so that it can be identified and studied systematically is, we think, a major achievement of this book. We will also welcome the sharpening and honing of the ideas presented here. That is one of the purposes of this work.
We make the point that private governance is not the same as privatization, as the uninitiated tend to assume. It is not in the realm of lobbying, another common misperception. Nor should private governance be called self-governance or self-regulation or market-based regulation. To do so is to obscure the public impact of private rules and to deny the claims of outsiders to be formally represented. When supposed self-governance creates significant impact beyond a groups members, self-governance becomes governance of others and should be recognized as such. When self-governance is used as an alternative to government, it simply substitutes private decisionmakers for democratically legitimate ones.
Many of the organizations engaged in private governance do not confine their activities to determining rules and making policy that others must follow. Anyone studying private governance organizations needs to recognize this fact. These groups may also publish professional journals, hold conferences, sell products and services, promote their industry through lobbying and political contributions, or engage in work with little or no relevance to our topic.
Adding further to the confusion about private governance is that no single type of organization engages in such policymaking. Private governance groups include multinational, for-profit corporations as well as not-for-profit organizations of various sorts, and therefore can be difficult to identify. We make the point that without a clear definition of private governance, citizens and scholars will not be able to recognize who these groups are and what they are doing. Questions about their legitimacy in a democratic society cannot be raised if people are not able to spot private governance in the first place. As the writer Robertson Davies in the novel Tempest-Tost reminds his readers, The eye sees only what the mind is prepared to comprehend.
An important obstruction in recognizing private governance is the fact that much of it is intertwined with governments. The federal The professions are largely governed by their own bodies, and governments at all levels rely on their choices.
Beyond defining private governance and identifying in where and why it exists, we have sought in subsequent chapters to pinpoint its importance in democratic society and illustrate how it works in some detail. We have chosen three broad areasfinance, food safety, and the professionsand have dug into some of the private organizations making policy in these fields. We want to make concrete what might otherwise seem to be a nebulous concept. The areas we have chosen are quite different from one another, demonstrating the breadth and considerable variety of the workings of private governance and reflecting the authors interests. We want to highlight the scope of private policymaking and demonstrate that it affects nearly everyone, nearly all the time, in quite disparate areas of policy.
first focuses on how to assess private governance. To the degree that private groups are making public choices about values to pursue, they should be evaluated on the grounds of democratic legitimacy, including the organizations inclusiveness, transparency, and accountability in their governance roles, just as government should be.
A significant deficiency of private governance is its lack of accountability and, specifically, the fact that it is riddled with potential conflicts of interest. The decisions of conflicted groups are likely to serve the groups themselves and much less likely to serve the public, if the interests of the two are not congruent. The epistemic biases of experts and professionals working within their own organizations lean toward the fields to which they have given their lives. Old saws like Who , we look for the degree to which each group adheres to public-regarding and democratic precepts rhetorically and actually. We try to describe exactly how private rulemaking works for good or ill, as well as make some suggestions for improvement.
