Reconciling Representative Democracy theory
with non-majoritarian practice
An alternative theoretical perspective on independent governmental
organizations (?)
Student: Student-ID: Supervisor: Second Reader: Year/Month: Assignment: Ender Rengkung 10647260 Benno Netelenbos Robin Pistorius 2019/April2
Introduction
This thesis is focused on the issue of revising existing models of representative democracy in order to deal with certain analytical challenges that accompany the study of contemporary democratic practice. One important reason to believe such a revision might be warranted is the observation that while models of representative democracy emphasizing traditional electoral mechanisms and party-politics are still widely applied as the normative standard, these models do not (and, in some cases, cannot) take into account important changes that characterize current democratic practice (Urbinati & Warren, 2008; Stoker, 2015). To illustrate the potential merits of a theoretical framework that is free from this preoccupation with electoral this thesis investigates one particular manifestation of a challenge contemporary electoral democracy. That is, the increasing number and influence of independent (i.e. unelected) government agencies. A growing number of authors indicate that, as a result of (1) the emphasis on regulation as the proper mode of making collectively binding decisions as well as (2) a collaborative and efficiency-oriented approach to policy-formation, the operation of government in established democracies can be said to have changed significantly (Papadopoulos, 2013; Mair, 2009; Thatcher & Stone-Sweet, 2002). These interrelated developments also referred to as, respectively, the 'rise of the regulatory state' (e.g. Majone, 2014; Moran, 2002) and the shift 'from governing to governance' (e.g. Tiihonen, 2004), have been observed to constitute the main components of the currently dominant administrative paradigm in established democracies known as regulatory
governance (Levi-Faur, 2011, pp. 3-2). One particular aspect of the advent of regulatory
governance that is frequently mentioned in this context is the reallocation of political authority away from elected officials to actors outside the reach of electoral control (Bovens, 2005; Vibert, 2007). As one observer has put it: ''No matter whether those who are authorized to govern have deliberately delegated some of their power, or whether it has escaped from their hands, a substantial amount of power is now in the hands of actors who evade democratic accountability', (Papadopoulos, 2013, p. 4).
Goal and structure of thesis
This thesis is aimed at a modest step towards identifying ways in which representative democracy might adapt to the current context. In order to contribute to that larger objective, an analytical perspective of representative democracy will be proposed as an alternative to what can (and has been) identified as the currently still widely applied standard model of
3
representative democracy. The proposed revised model will subsequently be put to the test by serving as the analytical framework in a case study of an independent government organization, or governmental non-majoritarian institution (hereafter: GNMI).1 Although the focus of this case study is limited to evaluating the potential of one particular GNMI to function as a representative actor, underlying aim extends to gaining insight into the potential place of GNMI's in the context of a representative government. That is, by looking at representative potential beyond electoral institutions, this analysis is intended to test the analytical merit of a theoretical perspective that explicitly deviates from the existing emphasis electoral mechanisms. At the same time, this focus on representative potential is primarily meant to provide insights that can be used as stepping-stones towards furthering representative democracy, both by providing more targeted points of critique as well as by contemplating a legitimate space for these GNMI's within a representative government.
The first section consists of a discussion of theoretical perspectives regarding the independent government organization on which this thesis is mainly focussed and will introduce some conceptual definitions. The second section is mainly focused on the introducing the issues related to different models representative democracy. It will first deal with identifying the shape of the currently still dominant model, and subsequently illustrate why this model will no longer do. The rest of that section deals with the introduction of a revised standard representative democracy, and how this will translate into the analytical framework. Specifically it introduces two models that will allow for the identification of a potential basis for representative relationships and the subsequent analysis of that basis. The latter part is the main focus in the third section, which is dedicated to a case-study of an GNMI's in terms of representative claim-making. Finally, the fourth and last section will briefly discuss the implications and possible conclusions that can be derived from them about the compatibility of NMI's to function as a part of a representative democratic state.
1. How to account for representative democracy in the context of a 'rise of the unelected'
As was mentioned briefly in the introduction the past four decades have seen significant changes in the function of government in advanced democratic states. A relatively widely shared opinion is that many of these changes can be understood as part of a general reorientation in the modus operandi of democratic government, namely, minimalizing active
4
intervention and emphasizing the provision of regulation (Mair, 2006; Thatcher & Stone-Sweet, 2002; Stoker, 1996). An important consequence of this 'rise of the regulatory state', as some have labelled it consists of a drastic reallocation of the political authority2 previously concentrated in the hands elected public officials (Majone, 1993; Thatcher & Stone-Sweet, 2002). For one, the increasing tendency to 'decide on rules' rather then 'ruling on decisions' has transferred a substantial degree of political decision-making to judiciary institutions, since deliberation in parliament on specific decisions has increasingly been replaced by courtroom debates about the application of regulation in specific cases. Secondly, economic globalization and increasing efforts to coordinate regulation on an international level have markedly curtailed the autonomy of national governments, thus yielding authority to private economic actors and supranational regulatory agencies (Bovens, 2005; Thatcher & Stone-Sweet, 2002).3
Finally, a significant reallocation of political authority to private actors and independent agencies has occurred on the national level. Since this specific transition of political authority forms the basis for this thesis' investigation of alternative apro. Arguably belonging to the same school of thought as the regulatory state-paradigm, the notion of a shift from governing to governance has gained intellectual support from both scholars and government actors alike.4 Despite some ambiguity regarding the strict meaning of the term, conceptually governance broadly refers to a collaborative approach to political decision-making, which entails the inclusion of actors with access to resources such as expertise or capital, as well as stakeholders into a joined process of designing (and deciding on) public policy (Stoker, 1996). As such practices of governance do not encroach upon the political authority of elected government officials, so long as they retain the only actor with the formal right decide on policy. However, the ideas of governance and the regulatory state share a, and have generally proven such a good match that some observers claim contemporary democratic governments are characterized by a regulatory mode of governance. That is, a style of government primarily aimed at utilizing the practice of governance to ensure optimal use of knowledge and funds to shape regulatory policies (Levi-Faur, 2010; Stern & Holder, 199). From the perspective of regulatory governance, there are several reasons why the
2Political authority here refers to a formally recognized claim (in the Hohfeldian sense of a right) to take part in determining
collectively binding decisions (I provide a more detailed conceptualization in the section I)
3 It worth noting that one of the main academic protagonists of the regulatory state, Giandomenico Majone, is an expert on
policy-analysis who has been contributing to the literature on international regulation in Europe since well before the establishment of the European Union. That is, the idea of the regulatory state encompasses regulatory frameworks beyond the national level.
5
political authority of elected officials (i.e. politicians) can be a major obstacle to the effectiveness of governance in realizing such optimal outcomes. Most notably their inherent subjectivity as participants in electoral politics is a cause for concern, since it creates incentives to overrule objective considerations, which can lead to poor policy-outcomes. In part out of the desire to minimalize the disruptive has lead to the creation of a host of specialized government agencies, intentionally granted a large degree of independence from either ministerial or parliamentary scrutiny, thus presenting yet another example of a transfer of political authority away from electoral government.
According to some this type of organization has 'spread across the democratic world; (2007, p. 1). These organizations been received a variety of labels, from quasi-governmental organizations (quango's), to independent regulatory agencies (IRA's) to independent government organizations (IGO's) (Papadopoulos 2013; . Although there are some differences between the sets of organizations to which these labels refer, the type of organization studied in this thesis would be part of all an element of al three (sets). Nevertheless the choice of label handled in this thesis is 'governmental non-majoritarian institution' or GNMI and is a slightly modified version of Thatcher and Stone-Sweets label, which doesn't include the emphasis on being a government institution (i.e. there is no G in their NMI). The choice for this label reflects the emphasis on these organizations' unelected character. Moreover, Thatcher and Stone's definition of NMI's emphasizes the characteristics that are relevant to this study, that is: governmental entities that (a) possess and exercise some grant of specialised public authority, separate from that of other institutions, but (b) are neither directly elected by the people, nor directly managed by elected officials; (2002, p. 2).
In addition to this general definition, the GNMI that will be analysed in the case study can be father classified according to the typology Vibert introduces (2007, pp. 20-31): I) the
service providers, II) the risk assessors, III) the boundary watchers, IV) the inquisitors, and
V) the whistle-blowers. The first two 'unelected' in this typology both perform public services, albeit that one of them refers to organizations that concern themselves with monitoring potential risks to the general public. Moreover, they do not meet the definitional requirements of GNMI's. As a consequence these organizations are of little interest, since in general they do not possess any significant political authority, and insofar as they do it there isn't of any particular relevance to the political authority of elected officials. The same cannot be said of the remaining three, in fact, these are exactly the type of independent organizations that have taken over substantial amounts of authority from elected officials. The 'boundary watchers' refers to NMI's that are tasked with regulating markets. They are so named because
6
(according to Vibert, 2007, p.26) they mediate between the public and private spheres, and keep watch over the market. The case-study consists of a GNMI' that belongs to the category of boundary watchers. Somewhat ironically, this particular category of GNMI can be understood as consequence of government reforms aimed at deregulation and the privatization in late 80s to early 90s (Vibert, 2007). The need to facilitate the steady expansion of market-organized production of public goods and services has brought about a rather substantial institutional infrastructure, mainly composed of independent government agencies aimed to regulate these new 'markets'. In this instance, the intentionally relinquished political authority, aimed at enabling the (perceived) self-organizing merits of market-organized production, has now effectively been transferred to these NMI's.
As a final note on GNMI's, it should be noted that there are more reasons for the delegation of political authority to these organizations. The introduction emphasized the motivation of insulating the regulatory governance from the perceived disruptive tendencies of electoral politics. However, by a practice that is known in the literature as ‘blame-avoidance’ politicians can actually turn delegation to their strategic advantage by disposing themselves of the responsibility for implementing policy they expect to be unpopular (Majone, 1999; Thatcher & Stone-Sweet 2002).
It seems prudent to conclude this part of the section by reiterating the key points that have been established so far. As part of a general shift in the dominant approach to public administration identified in the literature as 'regulatory governance', governments have increasingly placed an emphasis on regulation as the proper mode of making collectively binding decisions. This 'rise of the regulatory state' has gone hand in hand with a reorientation of 'government as governance': a collaborative- and cost-efficiency oriented approach to policy-formation. As indicated, there is reason to believe that this development has significantly changed the relevance of electoral politics. In general by the transfer of political authority away from elected officials to actors outside the reach of electoral control.
The problem of no solutions
The discussion up to this point has illustrated the development for which this thesis seeks to attempt a revised analytical approach. However, the question of why this is merited has not been addressed. This is the main concern of the rest of this section.
Given the one true axiom of modern political science states that democracy is good, and that representative democracy, in which electoral competition between political parties
7
mediate between citizens and the government's exercise of political authority, is still widely believed to be the best and/or only option (Urbinati & Warren, 2008; Mair 2006), there is reason to be concerned about the current state of democracy. Considering that the loss of political authority suffered by electoral bodies is a relatively well-established topic in multiple branches of scientific literature, one might reasonably expect the existence of a substantial body of literature dedicated to a more comprehensive evaluation then 'less electoral control equals less democracy'. However, this is not the case: while the literature (that more or less specifically touches) on this development is substantial, the attention given to the implications for the current- and future- state of representative democracy is, more often than not, limited to rather gloomy variations on a theme of 'not quite good'. How can we explain this apparent discrepancy between the relatively vast amount of effort put into analysing a phenomenon that has significant implications for democracy, and the comparatively limited, if not wholly absent, attention spend on following up on these implications?
Somewhat despairingly, the answer to this question has been around for decades, only in a different body of literature: namely the democratic theory literature. Several democratic theorists have called for the need of a revised approach to representative democracy, mainly based on the perception that existing accounts of representative are no longer adequate. This will all be discussed in more detail in the text below, yet for now it important to roughly sketch the issue, since this it is here that this thesis seeks to make a contribution to the literature. Basically, the need to rethink democratic representation is follows from the perception that actual functioning of representative democracy, as well as the context in which it functions, have undergone such dramatic changes that holding on to the longstanding model is no longer viable. The main point here is that maintaining a normative standard that doesn't appear to be fit into today's world simply isn't reasonable. For one, it results in identifying problems without offering any clues to possible solutions: which is exactly what was observed in the previous paragraph and thus answers the question posed there. Moreover, maintaining a model that demands society and democratic institutions to behave in a way that they are unlikely to do prevents the option of looking for standards of representative democracy more properly suited to the contemporary state of affairs.
8
2. Models of Representative Democracy
As the example of GNMI's in the previous section indicates, certain aspects of the organization of government in contemporary democracy have significantly diminished the scope of electoral control over the direction government policy. Nevertheless, the standard model of democracy still widely applied by most (including the authors cited in the previous section) emphasizes electoral control as the key-indicator of representative democracy. The current model
To be clear, the model presented here is not claimed to represent every model applied in the literature, let alone the various differences in accent and emphasis between them. Rather, the claim here is that there can be said to be aspects of a model of representative democracy that currently still dominates most of the existing approaches. So what does this standard model look like? According to Urbinati & Warren (2008, p. 389) the standard account of representative democracy reflects the post-war decades as the (perceived) golden age of electoral politics. They identify it as consisting of four central features. First of all, representation is interpreted in terms of a principal/agent relationship. As such, voters function as the principal - forming constituencies with a fixed territorial basis - that elect agents to 'stand for and act on' their interests and opinions. Elections therefore result in a separation of the source of legitimate power (i.e. citizens' interests and opinions) from those who exercise that power (i.e. elected representatives). Second, this reliance on electoral mechanisms causes the sovereignty of the people (i.e. the democratic principle of self-determination) to be identified with state power. In other words, elections allow the exercise of state power be perceived as 'the rule of the people' reflecting 'rule by the people'. The third feature further assures that government conduct conforms to this norm by allowing electoral mechanisms to establish a certain measure of responsiveness to public demands and opinion, given voter's ability to sanction their representatives in feature elections. Finally, the principle of universal franchise identifies a certain priority granted to political equality as the fourth essential feature of the standard account described by Urbinati & Warren (2008, pp. 384; 388-390). The choice for this particular description of a standard model of democratic representation was not made arbitrarily: the cited work consists of a review-article of the most noteworthy developments in the democratic theory-literature specifically related to representative democracy. Yet, to further illustrate the wider recognition of this account from the democratic theory literature as the dominant standard model it is useful to compare it to a counterpart from the social-scientific literature. To that end, consider the following
9
description offered by Papadopoulos (2013). Referring to the 'classis representative model', Papadopoulos states:
'The legitimacy of democratic regimes relies on the bottom-up delegation of power from citizens to their (partisan) representatives. It is because rulers are considered to be representative that they are authorized to make collectively binding decisions in a top-down manner; According to a congruence principle, those who have to comply with political decisions must have previously authorized the decision-makers to act in their name, so rendering the decision-making system legitimate (this is called procedural or ‘throughput’ legitimacy). In addition, the shadow of future competitive elections is a safeguard that induces representatives to behave in a responsive way',
(Papadopoulos, 2013, pp. 3-4).
This quoted passage serves to illustrate two points of particular relevance to these section. First, the similarities between these outlines of the standard model of representative democracy verifies that a similar dominant standard has been observed in both democratic theoretical- as well as social scientific bodies of literature. Second, the features presented as central to this dominant model clearly identify electoral mechanisms as the main point of reference when applying this model as the normative standard.
Limitations of the current model
Now that we have established the ideal-typical components of the model that still widely applied as the standard model, it is possible to move on to perceived limitations this thesis seeks to address. The issues arise from the discrepancy between the current ideal-typical model of representative democracy and the reality of current representative democracy in practice. It will be argued that one particular limitation resulting from emphasizing electoral mechanisms is that such models are incapable of granting serious consideration to a possible place for GNMI's in representative democratic government. This limitation is problematic for (at least) two reasons. First, GNMI's are omnipresent and widely recognized to have gained a significant position in terms of influencing collectively binding decisions directly affecting the lives of citizens in established democracies. They are in other words one of the 'facts of live in democratic societies across the globe' (Vibert, 2007, p. 124). Consequently, any ideal-typical model that does not allow for these actors to exist as a part the organization of government in representative democracy inevitably leads to rather disparaging conclusions
10
about the current- let alone the future- state of democracy. Second, the pre-eminence of models that perceive GNMI's as by definition incompatible with democracy has obscured the need for more detailed study of their place in representative government. As a consequence, the compatibility (or lack thereof) between GNMI's and representative government has not been granted the attention necessary for a more targeted criticism. As the main contribution this thesis seeks to make is an attempt to fill this gap, the second part of this section will consist of stipulating a theoretical framework that seeks to enable exactly this type criticism.
The proposed alternative
To reiterate: the standard model's preoccupation with electoral mechanisms can be said to be problematic given that I) it fails to adequately account in theory for several aspects of contemporary representative democracy in practice and, as a consequence, II) it obscures the potential insights gained by looking at the representative potential of unelected actors. The rest of this section is dedicated to discussing two approaches to representative democracy that might prove a viable answer to these limitations.
The first of these can perhaps usefully be understood as the 'generic democratic representative' -model (hereafter: GDR-model), proposed by Urbinati & Warren as a more broadly applicable alternative to the standard model discussed above (2008, p. 396):
1. Political representation involves representative X being authorized by constituency Y to act with regard to good Z. Authorization means that there are procedures through which Y selects or directs X with respect to Z. Ultimate responsibility for the actions or decisions of X rests with Y.
2. Political representation involves representative X being held
accountable to constituency Y with regard to good Z. Accountability means that X provides, or could provide, an account of his or her decisions or actions to Y with respect to Z, and that Y has a sanction over X with regard to Z.
3. A democratic relationship of representation is thus specified as one of empowered inclusion of Y in representations of X with respect to Z.
11
The main objective of this model is to allow for the analysis of the many possible manifestations of representative relationships in contemporary democratic practice, while simultaneously providing a basic framework for stipulating the democratic requirement of 'empowered inclusion'. As such, the GDR-model draws attention to three fundamental variables applicable to any particular democratic representative relationship: I) authorization, II) accountability as the basis for evaluating the extent of III) empowered inclusion. The advantage of this strategy is the flexibility it allows with respect to the many possible relationships that it could potentially encompass. For, as the authors indicate explicitly: 'a
wide variety of actors, and goods may potentially fit these criteria.... and, in principle, a wide variety of authorization and accountability mechanisms are possible; (2008, p. 396).
With respect to the objective of this thesis, the GDR-model is used to consider the potential opportunities for- and obstacles to these mechanisms of authorization and accountability to manifest in order to formulate the main points of interest regarding the existence of a basis for a democratic representative relationship between citizens and GNMI's. The question here is not whether this relationship exists in the current situation, since by definition it clearly does not. Rather, the goal is to bring into focus, specific concerns with about the compatibility of GNMI's within a representative government.
However, in order to apply the GDR-model we first need a method to identify potential representative relations. This is the second part of the proposed revised approach to studying representative democracy comes into play. Referred to as the 'representative claim framework' (hereafter: RCF-model) The key to understanding representative claim-making is that it is perceives of representative relationships as primarily based on continuous interaction. In Saward's words 'representation exists primarily by virtue of its being done— practiced, performed, claimed', (2014, p. 725). In this view, the relationship between representative and represented is fundamentally based on a representative claim: a rhetorical construct consisting of (or by implication reducible to) a proposition that some actor (A) represents some social entity (B), and that this proposition is (either explicitly or implicitly) recognized as true by both parties (i.e. A and B). Representation in a broad sense can therefore be understood as 'an economy of claims' (Saward, 2006, p. 306). Although the theoretical implications are complex, it can be said that the argument for the primacy of claims is rather straightforward. That is: to act as a representative necessarily implies articulating a claim to be representative. Both the act of representing and the claim to be representative, in turn, depend on the recognition of those whom are claimed as being represented. Basically, the argument here is that what matters most when it comes to
12
representation is the mutual recognition of a relationship between representative and represented, which (on this view) can only manifest through the rhetorical constructs that are posited in representative claim-making (Saward, 2014, pp. 725-729). To return to the question posed at the beginning of this section: the most distinct difference between Saward's theory and theoretical approaches expressed by Pitkin and Mansbridge is the fact that the RCF-approach intentionally refrains from of a conceptual definition committed to explicit normative principles. In fact, Saward's RCF can in part be understood as a response to perceiving such commitments as an analytical obstacle. Presenting his arguments for holding to such a position requires a discussion that would well exceed the purposes of this thesis. Instead, a highly simplified version of this argument would be that gaining a true understanding of representation requires the study of how it practiced, rather then studying how close representation as practiced comes close to meeting some specific normative commitment.
Conceptually, Saward specifies the general form of a representative claim in the following manner:
'A maker of representations (M) puts forward a subject (S) which stands for an object (O) which is related to a referent (R) and is offered to an audience (A)' (Saward, 2006, p. 305).5 This definition highlights five components that together provide an analytical framework for the study of representative claims. Since the analysis presented below is largely modelled on this 'representative claim framework' (hereafter: RCF)
To that end, it seems prudent to begin with the subject (s) and object (o) of representation. Arguably, these components (as well as the relationship between them) are necessarily part of any conceptual definition of representation, thus providing a suitable point of reference for describing the (three remaining) components unique to the RCF-approach. The subject (S) of representation refers to the representative actor and, specifically, how this actor is identified in a given representative claim.
The analytical relevance of the maker (M), referent (R) and audience (A) is best understood in light of the definition of representation as a rhetorical construct. The act of making a representative claim necessarily involves framing each of the components in a
13
specific way. For instance, in the example of President Trump's statement on Twitter, there is arguably a rhetorical connection between the identification of the subject (S) as the voice of the American public and the identification of the object (O) with outrage over 'disrespect for our country, our flag and our National Anthem. That is, one might interpreted this as intentionally stressing that it is the American public whom the president claims to speak for in their outrage over abuses of American symbols of national pride.
This act of framing and the resulting complexity is one of the main theoretical assumptions underlying the RCF-model. Namely, the act of attempting to conceptually define representation as anything more specific that a rhetorical construct is to overlook the fact that any manifestation of a representation comes with its own definition in the shape of a representative claim (Saward, 2014, pp. 723-727; van Veen, 2014, pp. 67-69). This is exactly why RCF approaches the analysis of representation by specifically looking at the maker (M) ('how does the maker present itself and in what context is that claim made?). The same is true for the referent: the object of representation in any representative claim refers to some group of people sharing the explicated characteristics. Consider the example of a professional soccer-player stating that 'people in his line of work are structurally underpaid'. This can be understood as a representative claim in that the soccer-player (M), being a professional player himself (S), can speak on behalf of others in his line of work (O). The analytical relevance of the referent (R) in this claim is that it is not immediately identifiable to whom (O) refers: does the set of people 'in his line of work' include only professional soccer-players or perhaps all professional athletes? Indeed, since the manifestation of representation within RCF depends greatly on the recognition of the represented, the analytical relevance of studying the referent in any representative claim is that it provides insight into the potential group of people who feel that this claim refers to them. The importance of looking at the referent (F) is closely related to that of taking the audience (A) in any representative. For one thing, the likelihood of a representative claim finding resonance greatly depends on presence the referent group. It should be noted that the role of audience (A) within RCF refers to both those observably witness to the claim (e.g. people being present during a speech) as well as those at which the claim might be aimed (e.g. the readers of a political pamphlet).6
To summarize in conclusion of this section: the RCF-model is used to gain insight into two aspects of the potential representative role of IRA's. First, it provides an analytical tool for identifying the possible basis for a becoming a representative actor. That is,
6It should be noted that this dual function of the audience component within RCF is not explicitly mentioned by
14
observable representative claims made by IRA's can arguably be interpreted as a preliminary measurement of such potential, which can subsequently be evaluated by applying the GDR-Model. The next section will consist of a case-study that seeks to realize precisely that end.
3. Case-study the NZA
This section presents a case-study based on the analysis of representative claim-making by the Nederlandse Zorgautoriteit (hereafter: NzA). The creation of the NzA in Januari 2006 resulted from legislation detailing a reorganization of the Dutch healthcare system, primarily aimed at deregulation and the application of market-incentives in the face of steeply increasing costs (Wet Marktordening Gezondheidszorg, 2019). In effect, the current organization reflects the merging of two previously independent government agencies; one respectively tasked with prise regulation of healthcare products and services, the other with supervising Dutch semi-private healthcare insurance agencies (zorgverzekeraars). The selection of the NzA for this study is primarily based on the organization's suitability as an example of a GNMI to witch a substantial degree of political authority has been delegated. That is, the NzA is (at least de jure) virtually wholly independent with regard to acting out its mandated function (i.e. the functions previously performed by the two agencies just mentioned). Additionally, the NzA exhibits the characteristics of what has been described as a 'boundary watcher': a mediator between public administration and private market-interaction. It is in this capacity as an intermediary between government-, public- and private actors in the creation of healthcare policy that the NzA clearly exhibits the characteristics of regulatory governance.
In order to study the potential representative claims made by the NzA the analysis is focussed on two main sources of data: first, information provided on the organization's website (see: Appendix A) and, second, an online magine published quarterly by the NzA (Appendix B). The selection of these sources is based on the notion that they are created in a context in which it may be presumed that the NzA is conscious about presenting itself as an organization.
Representative claims
The first consideration when identifying representative claims is the actor that makes the claim. As mentioned above, as the NzA is the author of the documents that are analysed, the organization constitutes as the maker (M) of any observed representative claim. It follows that we can analyse the maker (M) before proceding to analyse the observed representative claims. Identifying the manner in which the NzA presents itself in these documents does this.
15
Interestingly, the formal classification of the NzA as an IRA is virtually never mentioned. In fact, the only statement explicitly mentioning the organizations independent nature is accompanied by reference to another government website, detailing the definition of the Dutch version of IRA's (Zelfstandig Bestuursorgaan, or 'ZBO'). This is significant to the role of NzA as a maker (M) of representative claims, insofar as this formal independence implies a certain amount of impartiality that in turn might pose an obstacle to the organizations potential as a representative actor.
4. 2 Representative claims
What representative claims can to by the NzA in these documents? As mentioned in the previous section, the claims relevant to the current study are those instances where the NzA (M) positions itself (S) as representing a public interest (O). There are several statements containing representative claims that meet this requirement. Upon studying the observed claims it is clear that they can all be understood as variations of three distinct claims, thus presenting three categories of representative claims made by the NzA.
The first, and perhaps most frequently occurring, representative claim is reflected in the NzA's motto and features prominently on banners throughout the organizations website, including it's homepage: 'We stand for good quality and affordable healthcare for all inhabitants of the Netherlands'. A similar statement is presented as the first of six guiding principles described in the 'Strategic Agenda': 'We aim at good quality and affordable healthcare for the people in our country'. These statements require little alteration when reconstructing the representative claim they entail: The NzA (M) claims to be actively engaged with (S) representing the public interest of ensuring good and affordable healthcare for everyone (O).
The second category of representative claims observable in the frequently stated commitment by the NzA to the enforcement of regulation regarding the conduct of healthcare insurance agencies. For instance, the online magazine contains an article that is wholly dedicated to stressing that the NzA maintains it's vigilance in supervising insurance agencies at all times. The statement that perhaps most succinctly articulates the underlying claim on the website's page detailing information about the activities of NzA: 'We ensure that insurance agencies accept everyone who applies for the basic insurance policy. Age, income, health or lifestyle should never be considered relevant factors.' The representative claim that can be observed in this instance is: The NzA (M) claims to be actively engaged with (S) representing citizen's interests in not being mistreated by insurance agencies (O). The third
16
category consists of claims about representing citizen's interests by ensuring their access to information.
4.3 Objects and Referent of representation
Although there are numerous variations of the three general claims presented above, there would appear to be a single referent group: everyone with access to healthcare in the Netherlands. Nevertheless there are several different objects, as this (referent) group is addressed in different capacities. The most frequently occurring are 'citizens' and 'patients'. Interestingly, it would seem that claims regarding the interest of access to information (i.e. the third category) tend to use 'citizen' whereas the description of object that includes 'patients' is more frequently used when it comes to claims about financial interests and the quality of medical care. In both cases however, the objects are identified as referent to the same collective mentioned earlier. Given the fact that Dutch citizens are obliged by law to have health insurance, the potential group that is appealed to in these representative claims consists of the countries' entire population. In other words, the object (O) of the representative claims made by the NzA in principle allows for every Dutch citizen to accept the NzA as it's representative.
4.4 The NzA as a representative actor
Based on the results of the preceding analysis it possible to surmise some tentative aspects that characterize the nature of the NzA as a representative actor. First and foremost: it is clear that NzA can be said to explicitly position itself as a representative of certain public interests. Perhaps one of the most remarkable insights gained from analysing the NzA through the lens of RCF follows from the very existence of a quarterly magazine aimed at informing the general public of the on-going activities of the organization. That is, one might not expect an organization mandated with the task to supervise and facilitate economic activity to be as self-conscious about it's public role as it appears to be. that is deemed necessary to publish a magazine presenting it's current activities and advise to the general population of the Netherlands. It's core tasks, shaping and enforcing regulation of regarding health-care provision, is, as we have seen, repeatedly claimed to serve the best interest of all citizens. Moreover, the NzA actively encourages citizens to engage the organization when in need of information or as an authority when facing a conflict with a health-care provider. This is facilitaed through the website and encouraged in the online magazine.
17
Especially the latter is a clear example of the NzA providing representation. This being said, the observed representative claims are predominantly absent of normative commitments. Insofar as guiding norms are mentioned they belong to the category of economic terms like 'efficiency' or 'demand-oriented'. This, of course, is to be expected of an IRA specifically tasked with facilitating (semi-) privatized public services. Yet it is relevant to mention here because this presents a possible limitation to the capacity of (this type of) IRA to manifest itself as a representative of public concerns. That is: the types of demands and conflicts of interest that might suitably be represented by the NzA are limited to those that conform with, broadly speaking, a pro-market ideology. As a result, citizens that seek representation of(in this case, regarding health-care) are directly based on moral imperatives that conflict with those of the market (e.g. ' 'efficiency') are unlikely to ever find themselves represented by agencies such as these.
4. Evaluating the results from the perspective of the GDR-model: two main
concerns
Now, what can be tentatively asserted at this stage about the compatibility of GNMI's with the larger institutional structure of representative government? To start with, I would argue that there are two main characteristics of GNMI's that raise potential concern. First of all, the case-study indicated that the NZA displays a substantial lack of transparency regarding the way the organization performs it's delegated tasks. While it is clear that the organization spends considerable effort on matters of public communication, it rarely mentions anything about it's on-going activities barring some presentation of plans or policy in highly general terms. Similarly, while there is a digital infrastructure designed to answer questions from private citizens, it is specifically meant for questions about and complaints about healthcare-providers.
Should this lack of transparency hold true for GNMI's in general, this is could, for several reasons, be a major problem in terms of compatibility with representative government. By far the biggest issue is that the GDR-model specifies the active inclusion of constituents as the crucial condition for a representative relationship to be considered democratic. Given the lack of anything remotely resembling the intention of citizen inclusion on the part of the NZA, this could be a potential barrier preventing GNMI's from ever satisfying this condition. A second reason why this lack of transparency could be a cause for concern is the fact that there is no way of the public to ascertain the organization's nature of
18
conduct: does it treat equal cases equally? Does it play fair or play favours? The point is that we do not know. This could especially problematic in terms of potential for favouritism, considering that the board of directors is intentionally made up of people with a background of prominent positions in organizations of the specific policy-domain. The collaboration of key-players (i.e. elite) with former key-players to determine regulatory policy is in itself ethically questionable, yet this has been known to occur in the context of elected officials as well (e.g.). Yet combined with the notion of virtually no external supervision and a severe lack of public transparency, it is even more worrisome.
The second potential point of concern is perhaps less poignant then first, but nevertheless might pose a notable limitation to GNMI's potential as a representative actor. The representative claims found above clearly reflect the regulatory governance-paradigm: the focus on efficiency and cost's, the explicit concern with striving for the optimal outcome as the best way of serving everybody’s interests, as well as the emphasis on collaboration amongst experts and stakeholders. In terms of the GDR-model, this drastically limits the variety of representative 'goods' that might be represented by GNMI's. That is, the paradigm of regulatory governance can be interpreted as an explicit attempt to limit the range of considerations taken into account in the process of designing policy, thereby supposedly ensuring an objectively 'best outcome'. However, in the words of a prominent critic [this type of policy formation] often leads to formulas for the "best way" that are, in fact, hidden
strategies for framing issues in a way that benefits some interests at the expense of others. Analysis is always a species of argument. It includes sonic things and excludes others, and thus has a point of view, (Stone, 2012, pp. 384-385).
Conclusion
The main objective of this thesis has been test an alternative theoretical approach to representative democracy, in order to overcome the limitations imposed by existing models emphasizing electoral mechanisms on studying the various aspects of democratic practice that are beyond the scope of electoral control. This was done by focusing on one specific development that has lead to this decline, namely the delegation of authority to governmental varieties of NMI's. Using the generic model of democratic representative relationships as a reference point to allowed for a far more nuanced evaluation of their suitability as a part of a larger democratic state. Applied to the analysis of represented claims made by the NZA, this has resulted in two specific points of concern about GNMI's in democratic states: the lack of
19
transparency regarding their conduct and the limits imposed on representing viewpoints due to NMI's adherence to the paradigm of regulatory governance.The analysis further indicated that GNMI's do in fact perform tasks that require rather specific resources, such as highly technical legal expertise and specialised knowledge about their policy-domain. Given that it is unlikely for elected officials to posses the skillset required for such tasks, or the additional problem of translating these highly technical bureaucratic processes into to make them intelligible to the wider public, it would seem that GNMI's have at least some basis for maintaining their independent position. The insight gained here is that, insofar as GNMI's political authority is manifested through this type of highly complex bureaucratic regulation, it is the need for such complex regulation that creates a problem for representative democracy. That is, even if these tasks were to be performed by a bureaucratic organization under direct control of elected officials, the dependence on those actors with the required skills would hardly make a difference.
Literature
Bovens, M. A. P. (2005). De verspreiding van de democratie. B en M/ tijdschrift voor beleid, politiek en maatschappij, 32(3), 119-127.
De Wilde, P. (2013). Representative claims analysis- theory meets method. Journal of
European Public Policy, 20(2), 278-294.
Dovi, S. (2012). The good representative (Vol. 8). John Wiley & Sons.
Dovi, S. (2006). Political representation. The Stanford Encyclopaedia of philosophy.
Retrieved from: https://stanford.library.sydney.edu.au/entries/political-representation/
Hajer, M. (2003). Policy without polity? Policy analysis and the institutional void.
Policy Sciences, 36(1), 175-195
Levi-Faur, D. (2011). Regulation and regulatory governance. Handbook on the Politics
of Regulation, 1(1), 1-25.
Mair, P. (2008). The challenge to party government. West European Politics, 31(1-2), 211-234.
20
Mair, P. (2006). Ruling the void: The hollowing of western democracy. New Left
Review, 42, 25-51.
Majone, G. (2014). From regulatory state to a democratic default. JCMS: Journal of
Common Market Studies, 52(6), 1216-1223.
Majone, G. (2000). The credibility crisis of community regulation. JCMS: Journal of
Common Market Studies, 38(2), 273-302.
Mansbridge, J. (2003). Rethinking representation. American political science review,
97(4), 515-528
Merkel, W. (2018). Conclusion: Is the Crisis of Democracy an Invention?. In Democracy and Crisis (pp. 349-367). Springer, Cham.
Papadopoulos, Y. (2013). Democracy in Crisis? : Politics, Governance and Policy. Basingstoke: Palgrave Macmillan.
Pitkin, H. (1967). The concept of representation. Berkeley: University of California Press.
Saward, M. (2014). Shape-shifting representation. American Political Science
Review, 108(4), 723-736.
Saward, M. (2009). Authorisation and authenticity: Representation and the unelected. Journal of Political Philosophy, 17(1), 1-22.
Saward, M. (2008). Representation and democracy: revisions and possibilities. Sociology compass, 2(3), 1000-1013.
Saward, M. (2006). The representative claim. Contemporary political theory, 5(3), 297-318.
Saward, M. (Ed.). (2003). Democratic innovation: deliberation, representation and
association. Routledge.
Sørensen, E. (2005). The democratic problems and potentials of network governance.
European Political Science, 4(3), 348-357
21
Stone, D. (2012). Policy paradox : the art of political decision making. New York: W.W. Norton & Company.
Streeck, W., & Thelen, K. A. (Eds.). (2005). Beyond continuity: Institutional change in
advanced political economies. Oxford University Press.
Tiihonen, S. (2004). From governing to governance. Tampere University Press.
Urbinati, N., & Warren, M. E. (2008). The concept of representation in contemporary democratic theory. Annu. Rev. Polit. Sci., 11, 387-412.
van Veen, A. (2014). Regulation without Representation?: Independent Regulatory Authorities and Representative Claim-Making in the Netherlands. Utrecht University.
Vibert, F. (2007). The rise of the unelected: democracy and the new separation of
powers. Cambridge University Press.
Wet Marktordening en Zorg, (2019). Overheid.nl. Retrieved from:
