In Praise of Accountability

Jeremy Waldron, Accountability: Fundamental to Democracy (April 2014), available at SSRN.

Accountability is a term that gets bandied about a great deal these days, sometimes as a criticism of regulatory government (agencies are not accountable to the people), sometimes as a justification for federalism (when government is closer to the people it is more accountable). It is also a term that has been widely disparaged by scholars as vague, fanciful and under-theorized. In Accountability: Fundamental to Democracy, Jeremy Waldron remedies this situation. By carefully parsing various meanings of the term, focusing on the essential meaning, explaining its importance, and responding to the concerns it raises, Waldron has convincingly demonstrated the way that accountability is, as his title asserts, fundamental to democracy.

To focus the discussion, Waldron distinguishes between three different ways in which the term “accountability” is used in political discourse. The first is forensic accountability, where the actions of a person with some sort of power or authority are assessed by a supervisory entity according to an established norm. The second is consumer accountability, where the power-holder acknowledges the importance of considering the views of the people whom its actions affect. Third is agent accountability, where the power-holder has been appointed by a principal, must report its actions to the principal, and can be sanctioned or dismissed if those actions are deemed unacceptable. Judicial review, where a court determines whether a statute or executive action violates the standards established by the Constitution, is an example of forensic accountability. Calls for “client-centered” administration, which figured prominently in Al Gore’s “Reinventing Government” initiative when he was Vice President, are based on consumer accountability. These may be important from a juridical or management perspective, Waldron argues, but the third type—agency accountability—is the one that is fundamental to democracy.

The analysis of principal-agent relations was originally developed in private law, specifically business law, and Waldron, in making his argument, gets a good deal of philosophic mileage out of the term “business.” The theory of democracy is that government is conducted in the people’s name. Therefore, in colloquial language, government policy is their business. Thus, it is the duty of the agent, that is, the government officials who act on the people’s behalf, to report and explain their actions to their principal, the people. Part of the reason for doing so is to enable the people to exercise their authority to dismiss the agent if they are displeased with his performance. But one of Waldron’s most insightful points is that the officials’ obligation to report is an independent duty that follows from the basic definition of their role: “demanding that the agent indicate what he has been doing so far as the principal’s business is concerned and that he justify it to his principal . . . is part and parcel of agent-accountability, not just preliminary to sanctioning of the agent.”

This insight generates a number of important implications. To begin with, it enables Waldron to insist that a general, public understanding of governmental action is a basic goal of government itself, that it leads to an official’s duty to explain, rather than a citizen’s duty to understand. Thus, the people’s apparent naïveté or unconcern is no excuse for secrecy or obfuscation by officials. Waldron’s approach also enables him to avoid the abstract, fictitious character of discussions that invoke “the people”; as he points out, the duty to report is not owed simply to this formidable abstraction, but also to each citizen as an individual. Waldron further notes that the obligation to explain cuts across Burke’s distinction between the representative as conduit and the representative as trustee, thus integrating separate strands of democratic theory. Regardless of whether an elected official sees her role self as reflecting the views of her constituents or as using her own judgment once those constituents select her, she must nevertheless explain her actions to them. A further point is that the duty extends to all constituents, not only those who voted for her; there is no constituent to whom a representative is entitled to say: “This is none of your business.” Waldron does not discuss constitutional cases, but his article provides a particularly persuasive argument against the egregious decision in U.S. v. Richardson, 418 U.S. 166 (1974), where the Court held that, despite the constitutional provision that “a regular statement and account of the receipts and expenditures of all public money shall be published from time to time,” the CIA’s budget could be kept secret.

There are many other illuminating insights in this article that could be discussed, but the point I want to note in closing is the remarkable clarity and accessibility of its presentation. Waldron is a philosopher, and pays the usual attention to linguistic precision and detailed analysis that is typical of the field. But the writing is absolutely free of jargon and unexplained references to other scholars, to say nothing of conscious obfuscation that more than occasionally afflicts philosophic work. He shows the same commitment to his readers that he asks elected officials to show to their constituents—to lay one’s case before the relevant audience in complete and comprehensible language. As a result, even if one disagrees with him, one will learn a great deal from his article—which is one of many reasons why I like it lots.

Cite as: Edward Rubin, In Praise of Accountability, JOTWELL (March 6, 2015) (reviewing Jeremy Waldron, Accountability: Fundamental to Democracy (April 2014), available at SSRN), http://juris.jotwell.com/in-praise-of-accountability/.