The Resilience of Participation
Theoretical Inquiries Law, Vol. 6, p. 155, 2005
38 Pages Posted: 10 Oct 2007 Last revised: 1 Jun 2011
Date Written: 2005
Abstract
The exclusion of private interests and passions from the political sphere has always been of great concern for philosophers, political theorists, and legal systems worldwide. In Corruption and Federalism: Do Federal Criminal Prosecutions Improve Non-Federal Democracy?, Professor Hills presents a bold argument: This concern reflects the federal (bureaucratic) version of democracy, which is antithetical to the participatory style of democracy prevalent in states and localities in the United States. Aggressively enforcing federal anti-corruption rules on non-federal public officials disregards this conceptual misfit and might lead to the disappearance of popular mass participation in politics. Hills is motivated by the idea that popular participation in government is a fragile achievement, and if we value the unique advantage it produces for the polity - an incomparable schoolhouse for democracy that breeds political knowledge in the citizenry - we need to oppose the heavy-handed implementation of federal anti-conflict-of-interest (anti-COI) laws on non-federal politicians.
Hills' article does two important things. First, it convincingly shows that federal anti-corruption rules are far from being non-controversial or merely about clean government and the rule of law; rather, they reflect an ideology, a substantive idea about democracy and politics (albeit a bureaucratic one). Second, it offers a unique perspective on the nature of American federalism and on the essence of the political process. Refusing to revert to common justifications such as autonomy, efficiency, states' rights, and so on, Hills defends federalism as an optimal political structure that balances between the two aforementioned democratic visions.
Substantively, Hills offers a vindication of state and local autonomy that is based on these being forums of in-person and lay participation in government. However, beyond the difficulty of establishing this claim from an empirical or legal (constitutional or otherwise) perspective is the even greater difficulty of justifying it normatively, and on this account, Hills' article fails to lift the burden. This is so because he tries to hold too many sticks at both ends: he refuses to base his pro-state and pro-locality position on classical liberal values such as personal liberty and autonomy (the Nozickian position), but also seems to reject communitarian values (such as community self-determination or group identity) and other substantive values such as equality and freedom. And while he maintains the necessity of a distinction between the federal government and localities on the basis of the disparity in their sizes, he insists that localities and states can be equally participatory despite the formidable variance in their sizes. Thus, Hills is left with a highly formal and proceduralist conception of participation on which he tries, unsuccessfully I argue, to hang the heavy apparatus of American federalism. Hills' rosy picture of federalism ignores substantive discord between the various levels of government and the impossibility of bridging the profound discrepancy between the participatory vision and the bureaucratic vision by merely delegating them to different spheres.
My comment on Professor Hills' article progresses in five stages. First, I review his argument. I then proceed to critically examine what I label the fragility of participation hypothesis, according to which local and state popular participation requires protection from federal intervention via anti-corruption prosecution. I argue that Hills overestimates the threat posed to participation by federal anti-COI laws and underestimates the harm that the corruption of local and state politics poses to participatory democracy. Third, I claim that Hills' stylized mapping of participatory populism onto state and local governments and of bureaucratic populism onto the federal level is descriptively inaccurate and normatively undesirable; it ignores various forms of participation that exist at all levels of government and creates an unnecessary split between the various political spheres in which people *157 operate. I then move to analyze the way in which Hills' argument is linked to a more basic debate about the legitimacy of representative democracies and the nature of the political process: Hills submits a radical critique of democracy and of the essence of politics, but his skepticism regarding the possibility and desirability of distinguishing private interests from public ones is insensitive to concrete situations in its application. Furthermore, Hills seems to advance a privatized notion of politics, according to which no public interest that transcends private interests can ever be formed and thus politics is always about competing private interests. While I embrace some of his intuitions regarding the shakiness of the public/private divide, I invoke a more dialectical understanding of the relationship among the various tiers of government in federal structures, one that rejects neat separations and dichotomous solutions. Under such a view, states and localities do not represent different visions of democracy, inherently mapped onto different spheres; nor should they be viewed as either fully public or private. Rather, they ought to be regarded as hybrid entities where various forms of populism and participation coexist and compete, where the private and the public are fused yet maintain some distinction, and where colliding substantive visions of politics and democracy exist. I end with a few concluding remarks.
Keywords: corruption, federalism, local government law
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