Jean Monnet Center at NYU School of Law


Abandon Accountability

From the first two preservationist proposals - to provisionalise suprastatism and to surrender the element of individual representation - I turn now to the third such option. This is to abandon democratic accountability - in favour a system of government which is independent rather than accountable, and which derives its legitimacy from the fact that, instead of being majoritarian in character, it is based on expertise, and is beyond the reach besides of public opinion, parliaments and electorates.

The suspicion entertained by adherents of this view towards the idea of democratising the European suprastate is fundamentally the same as that expressed by those favouring the abandonment of the idea of individual representation. Their practical recommendation, however, is different. The problem is not solved by dividing power between a series of independent institutions, but rather by establishing a cluster of technocratic and regulatory regimes released from the need for democratic accountability. On the contrary - and somewhat paradoxically - these regimes assume their own legitimacy, to the extent that they are exempted from the very need for legitimacy in democratic terms.

This notion too functions within a framework of non-majoritarian, Madisonian political theory. The stress in this case lies, however, not on the separation of powers, but on the exercise of said powers independently of majority preference. The problem to be solved in both cases is "to carve out an institutional system that will bring a remedy to the current legitimacy crisis of the Community, without at the same time [my emphasis] exposing it to the dangers of majoritarian solutions" (Dehousse 1995: 135). The problem can be solved either by separating powers from each other or by rendering their exercise independent of any requirement for accountability.

According to this fifth option, then, independence is the key concept. The transnational separation of powers implies checks and balances between institutions. Independence, by contrast, implies not a system of institutional checks and balances, but rather an institutional monopoly for those exercising authority within the particular area in question (e.g., energy, banking, food prices, the environment, competition law).

Otherwise put: Madisonian theorists are of two kinds where the preservation of the democratic deficit is concerned. Some are pluralists; others are technocrats. The bottom line for both groups is the following: democracy is not to be equated with the rule of the majority. Pluralists surrender the notion of representative government. They continue to insist, however, on the need for accountability. This is to be met by checks and balances. Technocrats bring the Madisonian argument one step further. In his book Regulating Europe, Giandomenico Majone avers that majoritarian rule is "particularly inadequate in the case of the European Union". This is so, he argues, because "[t]he Union is not, and may never become, a state in the modern sense of the concept" (Majone 1996: 287).

There are two types of policy within the constitutional framework of a state "in the modern sense", Majone argues. The one is regulation, which is designed to increase efficiency in the interests of all. The important thing here is obedience - not so much how decisions came about, or what opportunities are available for holding decision-makers accountable.

The other type of policy is redistribution, which does not lie in the interests of all. In order for the transfer of resources across borders to be possible - recall that the countries in question are democracies - majority decisions must be made. It must be possible to hold decision-makers accountable. This presupposes, in turn, that the Union as a whole constitutes a democratic state. Citizens must be motivated by mutual solidarity and must be able to communicate with each other politically.

The technique for making the market a common one is, in all important respects, regulation. Some marginal subventions and regional supports to agriculture and peripheral parts of the Union certainly exist. They are needed for ensuring acceptance of the common rules governing the market. As long, however, as the fees for membership in the European Union amount to no more than 1.27 % of GNP - as compared to an overall tax level in the neighbourhood of 40 to 60 % - the institutions of the Union will require no legitimation of their own.

Against this background it is surprising, Majone argues, that the emphasis in the debates of the 1990s has been so heavily on strengthening rather than weakening the Union's majoritarian features. Confederalists and federalists, provisionalists and political pluralists - all emphase the need for democratic accountability (to Europe as a whole, to national electorates, and to specific veto groups). This is not, in Majone's view, a rational constitutional policy for the European Union. Majoritarianism can only lead - especially if combined with the separation of powers - to deadlock and perhaps even disintegration. As a de facto matter, moreover, constitutional reforms in a majoritarian direction would limit the role of the small countries (Majone 1996: 287).

The real question, Majone argues, is how "agency independence and public accountability can be made complementary and mutually reinforcing rather than antithetical values" (Majone 1996: 300). His own theoretical arguments, as well as the experiences of the United States in the 20th century with independendent regulatory commissions (IRCs), indicate that independence and accountability can be reconciled by a combination of control mechanisms, rather than by the exercise of oversight from any fixed place on the political spectrum. Such control mechanisms include: clear and limited statutory objectives for providing unambiguous performance standards; reason-giving and transparency requirements for faciliating judicial review and public participation; due process provisions for ensuring fairness among the inevitable losers from regulatory decisions; and professionalism for withstanding external interference and reducing the risk of an arbitrary use of agency discretion (Majone 1996: 300).

With a system of multiple rather than concentrated controls, "no one controls an agency, yet the agency is `under control'. At that point, the problem of regulatory legitimacy will have been largely solved." Majoritarian democratic accountability, in this argument, is reduced to "oversight exercised from any fixed place in the political spectrum" (Majone 1996: 300).
The drawback of allowing public opinion, ordinary citizens, political parties and interest organizations to have an ultimate say in the choice of policies and office-holders is that it does not "ensure consistency in regulatory policy-making by insulating the regulators from the potentially destabilizing effects of the electoral cycle" (Majone 1996: 289). When seeking re-election, "legislators engage in advertising and position-taking rather than in serious policy-making, or they design laws with numerous opportunities to help particular constituences. In either case, re-election pressures have serious consequences for the quality of legislation" (Majone 1996: 291).

The core of Majone's argument lies in his positive evaluation of regulatory independence together with his negative attitude towards government by elected politicians. Along with Susan Rose-Ackerman, in her book Rethinking the Progressive Agenda, Majone asks himself rhetorically: "if the courts require the regulatory process to be open to public input and scrutiny and to act on the basis of competent analyses, are the regulators necessarily less accountable than elected politicians?" (Majone 1996: 291). Independence, in this view, means not insulation from the surrounding society, but integrity.

The reason Majone considers advocates of democratic suprastatism to be naive in their federalism is historical. Federalists take their point of departure, he claims, in an presumed analogy with the integrative role of social policy in the growth and establishment of the nation-state in nineteenth-century Europe. Historically, social policy made an essential contribution to the process of nation-building by bridging the gap between state and society. "National insurance, social security, education, health and welfare services and housing policy were, and to a large extent remain, powerful symbols of national solidarity" (Majone 1996: 296). When today's federalists believe that a European welfare state would provide an equally impressive demonstration of Europe-wide solidarity, they embrace unrealistic expectations. The redistribution actually taking place within the common agricultural policy and the system of cohesion funds should be interpreted as "a side-payment to induce all member states to accept certain efficiency-enhancing measures", rather than as an instrument of social policy (Majone 1996: 298).

The delicate value judgements social policies express concerning the appropriate balance of efficiency and equity can only be legitimately made, Majone argues, within fairly homogeneous communities. He considers this a decisive argument in favour of his particular brand of preservationism:

It is difficult to see how generally acceptable levels of income redistribution can be determined centrally in a community of nations where levels of economic development and political and legal traditions are still so different, and where majoritarian principles can play only a limited role. Thus, a more active role of the European Union in income redistribution would not reduce the Union's democratic deficit, as many people would seem to think, but would on the contrary, aggravate it (Majone 1996: 298f).

The point concerns the difference between the norm-giving and fiscal powers. The former are more easily used in concert with other states than the latter. Rules promulgated on a suprastatal basis meet with less opposition than does redistribution conducted at such a level. The art of preserving the democratic deficit thus means avoiding a regulatory policy that calls forth a need for economic redistribution across borders.

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