Rethinking Accountability and Transparency: Breaking the Public Sector Bias in Mexico
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RETHINKING ACCOUNTABILITY AND TRANSPARENCY: BREAKING THE PUBLIC SECTOR BIAS IN MEXICO IRMA E. SANDOVAL-BALLESTEROS* I. INTRODUCTION ........................................................................ 399 II. A NEW WORLD OF PUBLIC-PRIVATE PARTNERSHIPS .. 403 III. TOWARDS A “DEMOCRATIC-EXPANSIVE” UNDERSTANDING OF TRANSPARENCY .......................... 415 A. BUREAUCRATIC TRANSPARENCY ........................................... 415 B. PUBLIC RELATIONS TRANSPARENCY ...................................... 417 C. DEMOCRATIC EXPANSIVE TRANSPARENCY ............................ 425 IV. CONCLUSION ......................................................................... 437 I. INTRODUCTION The wave of freedom of information legislation and anti- corruption reforms sweeping the globe over the last two decades has strengthened the grip of oversight and control, but on an ever-smaller basis of public authority and social power.1 Today, almost ninety * Professor at the Institute for Social Research, National Autonomous University of Mexico. Director of the Laboratory for the Documentation and Analysis of Corruption and Transparency, UNAM. Fellow at the Edmund J. Safra Center for Ethics at Harvard University, Visiting Professor at American University and Reagan-Fascell Democracy Fellow of the International Forum for Democratic Studies, National Endowment for Democracy, [email protected]. The author kindly acknowledges the support from the UNAM (PASPA Fellowship) for making possible my stay in American University during the 2013–2014 academic year, during which time most of the present manuscript was written. 1. See John M. Ackerman & Irma E. Sandoval-Ballesteros, The Global Explosion of Freedom of Information Laws, 58 ADMIN. L. REV. 85, 85–86 (2006), available at http://www.humanrightsinitiative.org/programs/ai/rti/articles/admin_ law_review_explosion_of_foi_2006.pdf [hereinafter Ackerman & Sandoval- Ballesteros, The Global Explosion of Freedom of Information Laws]; see also Strategic Plan 2011–2016, INT’L ORG. OF SUPREME AUDIT INST. 2–6 (Oct. 2010), 399 400 AM. U. INT’L L. REV. [29:2 laws on national access to information are in effect throughout the world,2 and each year governments compete to improve their rankings on the Transparency International, Global Integrity, Budget Accountability, World Bank, and Latin American Barometer “scoreboards.”3 Meanwhile, the economic orthodoxy of the past two decades has pushed central government functions out towards the private sector where public accountability is virtually nonexistent.4 Access to information laws historically developed as a way to control the new administrative state, or “fourth branch of government,” that emerged during the nineteenth and twentieth centuries in both the http://www.intosai.org/uploads/intosaispenglishv9web.pdf (highlighting the United Nations’ Supreme Audit Institutions’ efforts to foster cooperation between accountability agencies of various countries, pursuant to the declarations of nations such as Peru and Mexico). 2. Roger Vleugals, Overview of All FOI Laws, FRINGE SPECIAL 3–9 (Oct. 2011), http://right2info.org/resources/publications/Fringe%20Special%20-%2090 %20FOIAs%20-%20sep%207%202009.pdf/view. 3. See Advancing Access to Information in MNA: Supporting Coalitions & Networks, WORLD BANK 3–6 (Aug. 2013), http://wbi.worldbank.org/wbi/Data/wbi/ wbicms/files/drupal-acquia/wbi/Regional%20dialogue%20on%20ATI- %20Newsletter%204%20Final%20English.pdf (detailing exercises orchestrated by the World Bank in which representatives from Middle Eastern and North African states cooperated to formulate solutions to intra-national accountability problems); Using the Right of Information as an Anti-Corruption Tool, TRANSPARENCY INT’L 3, 4 (2006), http://www.transparency.org/policy_research/surveys_indices/ cpi/2010 (comparing the strength and execution of various countries’ right of information laws, noting particularly that several states have strongly worded but poorly enforced right of information laws, that others have seemingly weak statutes made effective through vigorous advocacy, and that a handful of states have established information commissioners who can drastically reduce the costs and time constraints of executing right of information laws); see also Jason Levitis et al., Promoting State Budget Accountability Through Tax Expenditure Reporting, CTR. ON BUDGET AND POLICY PRIORITIES 1–3, 9, 14 (Apr. 9, 2009), http://www.cbpp.org/files/4-9-09sfp.pdf (asserting that sound budgetary accountability requires the publication of tax expenditure reports, outlining what features make such reports effective, and comparing which U.S. states publish such reports and how); Global Integrity Report: 2011 Executive Summary, GLOBAL INTEGRITY 9, 11–41, (Mar. 2012), http://allafrica.com/download/resource/main/ main/idatcs/00031214:34a8bcf80534115d922944f722e1206a.pdf (examining the access of information laws of several states, and evaluating the strengths of these laws by comparing the actual wording and structure of the laws with a given state’s implementation). 4. See ALASDAIR ROBERTS, THE LOGIC OF DISCIPLINE 126–27 (2010) (asserting that the growing government reliance on private sector contracts to operate and maintain public infrastructure causes, among other problems, the weakening of public oversight). 2014] RETHINKING ACCOUNTABILITY AND TRANSPARENCY 401 global “north” and “south.”5 Transparency of government documents and spending has been one of the best ways to control large bureaucracies, but now the situation is different. “Public” functions such as schooling, healthcare, prison management, infrastructure, and insurance are increasingly taken up by private corporations, non- profit organizations, independent contractors, or quasi-governmental entities.6 The final result is a net accountability loss. The near total opacity of the enormous new responsibilities now in the hands of the private sector negates incremental gains in transparency and oversight of government entities.7 In the private sphere, concerns for accountability and answerability are normally subordinated to the demand for profits and competitiveness.8 Here, secrecy, not transparency, is the priority; tax secrets, corporate secrets, technological secrets, bank secrets, etc., are designed to protect the private sector from citizen oversight. Although recent economic crises have placed corporate responsibility in the public eye, it is still 5. Scholars like Katznelson have called the rise of the administrative state the “second great macroprocess of modernity,” comparable only to the rise of capitalist market relations in the nineteenth century. Ira Katznelson, Structure and Configuration in Comparative Politics, in COMPARATIVE POLITICS: RATIONALITY, CULTURE, AND STRUCTURE 91 (Mark I. Lichbach & Alan S. Zuckerman eds., 1997). 6. See JEFFREY DELMON, PRIVATE SECTOR INVESTMENT IN INFRASTRUCTURE: PROJECT FINANCE, PPP PROJECTS AND RISK 7 (2009) (asserting that the involvement of private entities is a critical component to providing infrastructure). 7. See Alasdair Roberts, Structural Pluralism and the Right to Information, 51 U. TORONTO L.J. 243, 243–44 (2001) (arguing that, since freedom of information laws were initially written with government institutions in mind, the shift towards private entities providing infrastructure services has undermined the effectiveness of these laws); see also Jerry Mashaw, Accountability and Institutional Design: Some Thoughts on The Grammar of Governance, in PUBLIC ACCOUNTABILITY 115, 135–38, 152 (Michael Dowdle ed., 2006) (claiming that numerous concerns necessarily frustrate holding private contractors accountable, such as the difficulty of applying accountability devices designed for public entities to private entities, the expectation that private entities are entitled to use secrecy to protect proprietary information, and the tendency to use private entities to provide infrastructure to encourage increased reliance on those entities). 8. See Robert Bloomfield & Maureen O’Hara, Market Transparency: Who Wins and Who Loses?, 12 REV. FIN. STUD. 5, 5–6 (1999), available at http://www.business.unr.edu/faculty/liuc/files/RUC/topic_markettransparency/Blo omfield_OHara_1999.pdf (noting that the British Securities and Investment Board believes that trade transparency should be restricted to protect private entities from undue economic risk). 402 AM. U. INT’L L. REV. [29:2 generally accepted that too much transparency in this realm would lead to reduced innovation and unfair information theft between market rivals.9 This article analyzes the new context of “structural pluralism” in public authority to identify the shortcomings of old anti-corruption and transparency policies.10 It argues that such strategies are limited to reducing bribes and assuring basic bureaucratic “hygiene,” and that they are insufficient to facilitate the change in the relationship between the state and society necessary to better “deliver the goods” to citizens in a democratic context.11 Part II discusses the public- sector bias toward anti-corruption studies in the context of the changing configuration of public authority. Further, Part II argues that the reality of Public-Private Partnerships (“PPPs”) and other new public management reforms warrant reconsideration of the stark separation between the public and private spheres, which represents 12 an essential part of the modern “neoliberal creed.” 9. See Alex Cukierman, The Limits of Transparency, 38 ECON. NOTES, 2009, at 1, 2–3, 13–18, 27 (arguing