Jody Freeman LL.M. ’91 S.J.D. ’95 and Martha Minow

Jody Freeman LL.M. ’91 S.J.D. ’95 and Martha Minow

Today, the U.S. government outsources a significant portion of its work—in such key areas as national security, military intelligence, environmental monitoring, prison management, and interrogation of terrorism suspects. It’s a reality that’s here to stay, according to Professors Martha Minow and Jody Freeman LL.M. ’91 S.J.D. ’95, and it raises important questions about accountability, transparency and the rule of law. Minow and Freeman are editors of a new collection that explores some of these issues, “Government by Contract: Outsourcing and American Democracy” published by Harvard University Press in February. (Read an excerpt, “Reframing the Outsourcing Debates“, by Freeman and Minow.)

The project stems from a 2005 conference they organized at Harvard Law School (watch the webcast), but it’s part of a longstanding conversation—about public and private participation in governance, about accountability, and about democracy—that began nearly 20 years ago when Freeman was an S.J.D. student working with Minow on negotiated regulation. Today, Freeman, one of the leading experts on administrative and environmental law, is on leave from the HLS faculty to serve in the White House as counselor for energy and climate change. Minow, a scholar of wide-ranging interests, has focused in recent years on public and private provision of schooling, social services, and military services. An op-ed by Minow, “Keeping stimulus spending in check,” appeared in the March1, 2009, edition of The Boston Globe. Here, she answers five questions about “government by contract.”

Even though it might be cheaper to outsource them, are there functions that should stay within the government?

Our book is unusual in that it brings together advocates and critics of privatization. The result, we hope, will be a shift from superficial debates about whether to outsource government work toward recognition of the high levels of outsourcing that are here to stay and an analysis of the tradeoffs. At stake are the potential efficiency, speed, and nimbleness of private contractors versus the transparency and compliance with democratic norms that should accompany government work, whether it is provided by government employees or private contractors. Effectiveness and quality of government work should be assessed in terms of democratic as well as economic values, whether it is outsourced or kept in-house. The question, then, is not whether to outsource, but to what ends, using which strategies, and under what constraints? This includes a more rigorous assessment of which capacities must be strengthened within the government. In general, capacities to oversee what should be and what should not be outsourced require greater competence and resources within the federal and state governments. Some people argue for categorical decisions that certain tasks, such as military combat, national security information gathering, domestic law enforcement, and prison management, should be reserved entirely to government actors; we suggest instead that trying to answer the outsourcing question by reference to such large domains or categories is less promising than strengthening accountability mechanisms to assess the work, whether it is done by government or private employees.

The book stemmed from a 2005 conference. Can you comment on the relevance of these ideas, under the new administration?

When Dean Elena Kagan gave us support for a conference that brought together scholars and practitioners in administrative law, democratic governance, and private government contracting, we were delighted that people from different quarters seemed ready for a fresh conversation about the promise and limitations of outsourcing government work. Now, with a new administration engaged in vigorous rethinking of government programs across the board, we hope some of the fresh thinking finds listening ears. Already, the new administration’s stimulus package creates an enormous surge of resources for private contracting for infrastructure, environmental, and other projects– and it also raises challenges for accountability in the use of these resources. President Obama’s commitment to transparency in this area, shown by the immediate appointment of a vigorous Recovery Act Transparency and Accountability Board, and the emerging efforts for more serious reporting on the bank bail-outs, are heartening signs that these issues are getting the attention that they deserve.

How much have the recent scandals involving public contractors influenced the public discussion about government outsourcing?

Probably many people never thought about private contractors until the recent scandals. A private contract played a pivotal role in abusive treatment of prisoners in Abu Ghraib. Private contractors fired on civilians in Iraq while providing security services. Private contractors misused funds or provided shabby work in the reconstruction work following Hurricane Katrina. There is a risk these extreme events will distort the public debate because much of government contracting works well. At the same time, notorious abuses do generate much-needed public attention to the risks of fraud and waste, insufficient oversight, illegal and abusive conduct, failures of democratic accountability, and diminished government capacity both to provide government services and to oversee private provision.

What did you learn from this project that surprised you?

I frankly was surprised to find that Massachusetts relies on private consultants to make the final state approvals of environmental clean-ups of hazardous waste. Shifts and continuities in privatization over time are also surprising. I was fascinated to learn that after municipalities tried to sell off portions of public property in the 1840s and 1850s, courts put a halt to these efforts and defended public rights in public properties. Public rejection of old-style privatization was fierce at that time. Public embrace of outsourcing government work has grown under Democratic and Republican administrations in the past 30 years. Yet even as it has grown, federal spending on direct governmental provision has also grown. So after September 11, 2001, total federal spending on service contracts nearly doubled, but as a proportion of the entire federal budget, this service contracting only grew 15 percent. Looking at these and other developments with our contributors to the volume, I was heartened to see a convergence in the views of critics and fans of government contracting around the urgency of strengthening the training and resources of people involved in the contracting and oversight processes.

Who do you hope to influence?

We hope the book will remind officials in local, state, and federal governments to allocate sufficient resources to establish and implement clear guidelines governing the performance of government work by private contractors, rather than assume that the private sector will simply act efficiently and fairly. We also hope that scholars and teachers of administrative law and contract law will come to recognize the enormous importance of government contracting to the work of government and hence to the tools that students need to learn. Scholars and students of political science and history can also find useful lines of inquiry from the work. And the long-searched for “general public,” we hope, will also use the book to become engaged with how government really works and why methods of accountability and oversight are not just technicalities, but increasingly, central to democracy. Folk singer Si Kahn and philosopher Elizabeth Minnich were on the right track when they tried to bring privatization into public discussions through folk songs and their book (“The Fox in the Henhouse: How Privatization Threatens Democracy”). We don’t have any folk songs here, and our book includes defenses as well as critiques of privatization, but we, too, hope to help make “contract oversight” and “what’s inherently governmental” topics for the dinner-table discussion, blogs, and the voting booth.