LBJ JOURNAL OF PUBLIC AFFAIRS

Volume XVII, Issue I Fall 2004

Editors-in-Chief The LBJ Journal of Public Affairs Kevin Beck (ISSN 1087-268X) is produced Stephen Spruiell by students of the LBJ School of Public Affairs at The University Associate Editors of Texas at Austin. Founded in Stephanie Fain 1989, it is the nation’s oldest stu- Matthew Harriger dent-run journal of public affairs. Briana Huntsberger The LBJ Journal is dedicated to Crystal Jones publishing professional quality Kevin Priestner work by the extended LBJ School Cristina Ruggiero-Mendoza community, promoting discourse Micah Sagebiel on contemporary policy issues, John Seale and enhancing the reputation of Laura Sullivan the LBJ School of Public Affairs. President Lyndon B. Johnson LBJ School of Public Affairs believed that through collective Edwin Dorn, Dean discussion and action the needs of people could be met; likewise, the Faculty Advisor LBJ Journal believes that as a result David Warner of diverse and vigorous discourse about public affairs, policies are LBJ School Offi ce of Communications created and initiatives are taken Marilyn Duncan, Director that best serve the interest of citi- Doug Marshall, Production zens everywhere.

LBJ School Business Offi ce ©2005, LBJ Journal Don Wallace, Assistant to the Dean of Public Affairs

Drawer Y, University Station, Austin, Texas 78713-8925 Phone: 512-471-3200 Fax: 512-471-8455 [email protected] www.lbjjournal.com

CONTENTS 5 From the Editors-in-Chief Practitioner’s Corner 7 SENATOR JOHN CORNYN

Faculty Corner 11 SHERRI GREENBERG

Time for Change: United Nations 17 Charter Rules on the Use of Force KATHLEEN P. CONNELLY

Texas School Finance: Return on Investment 27 Analysis of the Robin Hood Era KEN FLIPPIN AND KELLY SHANAHAN

Public-Private Partnerships in Parkland LBJ JOURNAL OF PUBLIC AFFAIRS 38 Management: Buenos Aires, Argentina KATHERINE CLARK The LBJ Journal of Public Affairs is produced by graduate students at the LBJ School of Public Af- Designing Reforms: Decentralization fairs at The University of Texas 49 Programs in Peru and Bolivia at Austin. The opinions expressed GONZALO ALCALDE herein are those of the authors and do not necessarily represent the views of the administration or the Failures in U.S. Decision Making Board of Regents of The University 60 in the Middle East of Texas, the administration of the JORDAN TAMA LBJ School of Public Affairs, or the Editorial Board of the LBJ Journal 69 In Support of Democratization: of Public Affairs. Free Trade Unions and the Except as otherwise noted, the LBJ Destabilization of Autocratic Regimes Journal is pleased to grant permis- JOSEPH SIEDLECKI sion for copies of the Journal in whole or part for classroom use, Electronic Trash: Managing provided that (1) a proper notice of 80 copyright is affixed to each copy, Waste in the New Century (2) the author and source are identi- ALEXANDRA RITCHIE fied, (3) copies are distributed at no cost, and (4) the editorial board of Fall 2004 LBJ Journal of Public Affairs the LBJ Journal of Public Affairs is 88 Editorial Board notified of the use. LBJ JOURNAL OF PUBLIC AFFAIRS We would like to express our utmost gratitude to the following organizations for their The Lyndon B. Johnson School of generous contributions to the LBJ Journal of Public Affairs: Public Affairs was established in 1970, fulfi lling a long-held dream of The LBJ School Graduate Public Affairs Council President Johnson for an academic The RGK Center for Philanthropy and Community Service institution aimed specifi cally at pre- The University of Texas Co-Op paring talented men and women for leadership positions in public service. The school offers a master’s degree in public affairs and a Ph.D. degree in public policy. For more informa- tion, write to the Offi ce of Student and Alumni Programs, LBJ School of Public Affairs, Drawer Y, University Station, Austin, Texas, 78713-8925, or visit the school’s website at http:// www.utexas.edu/lbj.

In previous years, the LBJ Journal has included a list of professional reports recently completed by LBJ students. Professional reports, a required element of the LBJ School curriculum, are substantial policy papers typically produced by LBJ students in the second year of the program. The LBJ Journal will no longer print a list of these reports as this list can now be found online at http://www.lib.utexas.edu/pal/2000/ index.html.

LBJ JOURNAL OF PUBLIC AFFAIRS FROM THE EDITORS-IN-CHIEF

The LBJ Journal Editorial Board is proud to present the Fall 2004 edition of the LBJ Journal of Public Affairs. The seven articles selected for publication represent not only the best of a competitive fi eld of submissions, but also the realization of a goal that the LBJ Journal has been working toward for the past three years: to become a forum for public affairs students throughout the United States to present their public policy research. The pool of submissions from which the LBJ Journal selects articles has widened to include LBJ School alumni, graduate stu- dents in other departments at The University of Texas, and public affairs students at other universities. This expansion showcases the work of LBJ School students alongside the best public policy research in the country and puts the Journal on the same level as other professional venues for publishing research. This edition of the LBJ Journal brings together the original work of fi ve LBJ School students, one UT Law student, and students from the Goldman School of Public Policy at the University of California at Berkeley and the Woodrow Wilson School of Public and International Affairs at Princeton University. This goal could not have been reached without the hard work and forward thinking of last year’s editors-in-chief, Vanessa Bouché, Stephen Palmer, and Kelly Ward. Following their example, we will Submissions to the LBJ Journal continue to publish both Fall and Spring editions of the LBJ Journal. should be less than 5,000 words and We will also continue to be the only student-published journal of on a topic relevant to public affairs. public affairs with online-only content, with new student writing Citations and style should conform and Q&As with policy professionals published every two weeks at to the LBJ School Student Pub- the LBJ Journal Online (www.lbjjournal.com). lishing Guide (http://www.utexas. This year we are excited to have formed two new partnerships within edu/lbj/student_res/pubguide/) the LBJ School community that will provide new opportunities for policy and/or The Chicago Manual of discourse. First, we are working with LBJNow!—the new Web periodical Style (15th ed. 2003). jointly produced by the LBJ School and the LBJ Presidential Library—to provide op-eds and feature stories written by LBJ Journal staff. Second, The LBJ Journal of Public Affairs in an effort to provoke dialogue on the role of nonprofi t institutions in is distributed at no cost to members today’s policy environment, the LBJ Journal, in conjunction with the of our subscription list. If you wish RGK Center for Philanthropy and Community Service, is sponsoring to be placed on this subscription the Philanthropy and Community Service Paper Contest. This contest list, please contact the editorial will select a paper that presents original research, data, policy recom- board. Back issues of the LBJ Jour- mendations, and new management strategies in the areas of nonprofi t nal may also be obtained at no cost organizations, philanthropy, community service, and volunteerism. The by contacting the editorial board.

LBJ JOURNAL OF PUBLIC AFFAIRS 6 FROM THE EDITORS-IN-CHIEF FALL 2004 winning paper will be published in the Spring 2005 sor Curtis Meadows at the RGK Center has also issue of the LBJ Journal. been invaluable in establishing our new partner- As always, we have many people to thank. Pub- ships. We would also like to thank Professor Paul lication of the Journal would not be possible with- Burka, Dr. Betty Sue Flowers, Dr. Ken Matwiczak, out the hard work and calm guidance of Marilyn Don Wallace, Joe Youngblood, and many others for Duncan and Doug Marshall in the LBJ Office of their counsel and encouragement, and last but not Communications. The assistance of María de la Luz least, the LBJ Graduate Public Affairs Council for Martínez in conjunction with LBJNow! and Profes- all of its support.

LBJ JOURNAL OF PUBLIC AFFAIRS PRACTITIONER’S CORNER

ENSURING THE CONSENT OF THE GOVERNED:

AMERICA’S COMMITMENT TO FREEDOM OF INFORMATION AND OPENNESS IN GOVERNMENT

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. –That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. Declaration of Independence, July 4, 1776

A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: JOHN CORNYN And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives. John Cornyn was elected to the Letter from James Madison to W. T. Barry, August 4, 1822 United States Senate in 2002. He is the fi rst U.S. Senator from Texas since For the last two decades, I have been blessed with the opportunity to 1961 to serve on the Senate Judiciary serve my fellow Texans in a variety of government positions across all Committee, which has jurisdiction three branches of government. Yet these years of service in a diverse over federal government informa- range of offi ces share some common and important threads. For tion laws. He is also chairman of the example, as a former state attorney general, I continue to revere the Senate Judiciary Subcommittee on rule of law as the bedrock of a civilized society. As a former judge, the Constitution, Civil Rights, and my belief in the fundamental importance of maintaining a proper Property Rights. Senator Cornyn has relationship between the three branches still drives me to champion previously served as Attorney Gen- a restrained and independent judiciary and to oppose judicial activ- eral of Texas, Texas Supreme Court ism. But as an American, my belief in the fundamental importance of Justice, and state district judge in maintaining a proper relationship between the government and the Bexar County. In 2001, the Freedom governed has driven me to champion openness in government. of Information Foundation of Texas Our nation’s most beloved statesmen shared the common and core presented him with its James Madison belief that a free society cannot exist without an informed citizenry Award for his efforts to promote open and an open and accessible government. Patrick Henry, famously de- government.

LBJ JOURNAL OF PUBLIC AFFAIRS 8 PRACTITIONER’S CORNER FALL 2004 voted to liberty, well understood that “the liberties to the challenge. I immediately allocated greater of a people never were, or ever will be, secure when resources to the Open Records Division. As a re- the transactions of their rulers may be concealed sult, we issued over 20,000 open records rulings, from them.” John Adams noted that “liberty cannot and we dramatically reduced turnaround times on be preserved without a general knowledge among requests to ensure that all record requests receive a the people, who have a right . . . an indisputable, response within the statutory deadlines. My offi ce unalienable, indefeasible, divine right to that most also brought the fi rst open records enforcement ac- dreaded and envied kind of knowledge, I mean of tion Texas had seen in years. the characters and conduct of their rulers.” U.S. In addition, we established a toll-free open re- Supreme Court Justice Louis Brandeis once wrote: cords hotline, 877-OPEN-TEX, to facilitate inquiries “Publicity is justly commended as a remedy for so- and resolve open records matters quickly. Today, cial and industrial diseases. Sunlight is said to be the that hotline handles approximately 10,000 calls per best of disinfectants; electric light the most effi cient year. We also convened dozens of well-attended policeman.” But perhaps no one put it better or open government conferences and seminars around more succinctly when our beloved 16th President, the state, and trained countless local government Abraham Lincoln, said: “Let the people know the offi cials on how to comply with open records laws. facts, and the country will be safe.” We worked closely with public interest organiza- Grasping and realizing the lofty ideals of our tions devoted to open government, such as the nation’s founding fathers and leading statesmen Texas Freedom of Information Foundation. Our remains the promise of America. Our national com- offi ce’s record of success in opening government, I mitment to democracy and freedom is not merely am pleased to say, received international recogni- some abstract notion. It is a very real and continuing tion when the legislature of Mexico called upon effort, and an essential element of that effort is an us to provide technical assistance during drafting open and accessible government. and passage of an historic open government act enacted in 2002. * * * As a result of these efforts, Texas government is more open and accessible today than ever. The cause of open government has been a top Texans have always been proud of their state, priority throughout my career in public service. The of course, and with good cause to be sure. Our Attorney General of Texas is responsible for ensur- state’s commitment to open government provides ing that Texas government is open and accessible an additional, important, and uniquely American to all citizens. And the state of Texas, I am proud to source of Texas pride. say, boasts one of the strongest open government laws in the nation. But just as our democracy is * * * meaningless without an informed and vibrant citi- zenry, the open government laws on our books are As I remarked on the campaign trail through- meaningless without universal respect and robust out the 2002 election cycle, the folks in Wash- enforcement. As Attorney General of Texas, I ac- ington could use “a little Texas sunshine.” As a cepted the responsibility of enforcing Texas’s Public member of the United States Senate, one of my Information Act with great enthusiasm. top priorities is to work closely with our President When I took office, I immediately wanted to from Texas, and with my colleagues in Congress, learn what the Offi ce of Attorney General could do to bring Texas open government principles to to facilitate the cause of open government in Texas. Washington, D.C. And as a member of the major- So I convened an Open Government Leadership ity party in Congress, I have a unique opportunity Summit and invited the best and brightest minds to play a leading role in championing the cause to participate in that discussion. Three priorities of openness in our federal government. emerged from those meetings: speed up the process During my fi rst two years in the Senate, I worked of opening government to public scrutiny, be more with Senators Corzine, Feingold, Leahy, Lieberman, aggressive in taking open government violators to and McCain to ensure that the institution of Con- court, and provide education and outreach to pre- gress itself is more open and accessible to the public. vent violations of the Public Information Act from For our democratic system of government to func- occurring in the fi rst place. tion properly and robustly, the American people I am pleased to say that the hardworking men should have full and complete Internet access to and women of the Offi ce of Attorney General rose legislation, voting records, and other Congressional

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII PRACTITIONER’S CORNER 9 documents. The THOMAS Web site, which was plan to explore them all at the hearing. My ultimate launched in 1995 as a pet project of then-House goal is to shepherd legislation through the next Speaker Newt Gingrich, was a good start—but it Congress that will close loopholes in the law, help can and should be much stronger. Too frequently, requestors obtain timely responses to their requests, the current system is too confusing for the average ensure that agencies have strong incentives to act person. It must be improved, and this bipartisan on requests in a timely fashion, and provide FOIA coalition of senators has worked closely with our offi cials with the tools they need to ensure that our colleagues on the Appropriations Committee and in government remains open and accessible. the Senate as a whole, as well as with the Librarian For example, government is outsourcing its of Congress, to make that happen. functions at an increasing rate, and as a limited- I have also worked during the 108th Congress to government conservative, I certainly support mea- reform our nation’s broken system for classifying sures that help make government function more sensitive national security documents, to ensure efficiently. But as we undertake efforts to make that our government is not shrouded in excessive government more effi cient, we must also make sure secrecy. As the recommendations of the 9/11 com- that government remains open. Outsourcing should mission have made their way through Congress, I not be used as a justifi cation for evading FOIA—yet have fought to ensure that Congress maintains a there are numerous well-founded and well-reported strong oversight role over federal open government fears that that very well may be occurring. If our laws. Finally, one of my earliest acts as a member of laws need to be clarifi ed to ensure that outsourc- the Senate Judiciary Committee was to cosponsor ing does not place public records beyond public and aggressively promote bipartisan legislation (S. scrutiny, we should see to it. 554) to give federal judges greater fl exibility to bring In addition to closing loopholes, we must also cameras into and otherwise expand media coverage ensure that the FOIA request process operates in a of and access to federal courtrooms. smooth and timely fashion. In an ideal system, re- I have an ambitious open government agenda for questors and government agencies should be able to the 109th Congress as well. It has been frequently work out timely and reasonable accommodations of remarked by members of the requestor community all FOIA requests. To help make that happen, I have in Washington that, when it comes to openness in long supported the creation of an ombudsman to fa- government, Texas law is stronger and better en- cilitate and expedite FOIA requests without having forced than federal law. Toward that end, I plan to to resort to litigation. And when there is no choice pursue an aggressive effort to examine and reform other than to litigate, requestors must have the the federal Freedom of Information Act (FOIA). resources they need to litigate their cases in an ef- For example, I was amazed to learn that the Senate fective and expeditious manner—and that includes Judiciary Committee has not convened an oversight the ability to recover reasonable attorney’s fees hearing to examine FOIA compliance issues since whenever they prevail. Moreover, federal agencies April 30, 1992. Moreover, the Senate Governmental face federal deadlines to comply with FOIA—just Affairs Committee, which shares jurisdiction over as Texas agencies face deadlines under Texas law. federal government information laws with the Ju- To be meaningful, however, deadlines must be en- diciary Committee, has not held an FOIA oversight forced. Texas agencies that miss deadlines face real hearing since 1980. The House record is better, but consequences; so too should federal agencies. given the fundamental importance of openness in Finally, the FOIA law is administered by a corps government to our nation’s founding principles of well-meaning public officials throughout the and ideals, both Houses should be more actively federal government. These offi cials must have all engaged in these issues. Indeed, it has been nearly of the tools and training they need to get the job a decade since Congress enacted the last series of done. If there are additional steps that Congress can substantive improvements to FOIA. take to help FOIA offi cials do their job, we should Accordingly, I plan to convene the fi rst Senate take them. hearing in over a decade to examine FOIA compli- This process of examining, reviewing, and re- ance, as early as possible during the 109th Congress. forming FOIA will take time. It will take patience. That hearing, in turn, will commence a compre- And to be truly meaningful and successful, it will re- hensive review of the federal FOIA law—leading quire the accumulated wisdom of all who regularly up to, I hope, the fi rst comprehensive upgrade and participate in and have experience with the FOIA revision to that law in nearly ten years. A number process. Naturally, any effort to reform our open of ideas for reform come quickly to mind, and I government laws should itself be open. Accord-

LBJ JOURNAL OF PUBLIC AFFAIRS 10 PRACTITIONER’S CORNER FALL 2004 ingly, I invite anyone with good ideas to contribute and private organizations called OpenTheGovern- their thoughts and to make their voices heard. ment.org—today we spend $6.5 billion annually to classify documents, compared to just $54 million to * * * declassify documents—an overwhelming ratio of 120 to 1. But that same report makes clear that this Open government is, and must always remain, trend has occurred under both parties, noting that a nonpartisan issue. Whatever our differences on “the rise in government secrecy . . . did not begin controversial policy matters, Democrats and Repub- during the current administration.” Fourteen mil- licans alike should agree that those policy differ- lion documents were classifi ed in 2003—up from ences deserve as full and complete a debate before the 3.5 million in 1995. American people as possible. The development and President Lyndon B. Johnson famously signed implementation of policy must be presumptively open the federal Freedom of Information Act on July 4, and accessible to all. Thus, for example, as a cosponsor 1966—an appropriate day to further the principles of the Independent National Security Classifi cation of the Declaration of Independence. Yet even that Board Act of 2004, I was pleased to see a remarkably day did not come easily. Open government advo- broad and bipartisan consensus emerge that the cates conducted a furious lobbying campaign out of United States government overclassifi es documents. fear that President Johnson would veto the bill. And Thomas H. Kean, chairman of the 9/11 commission, a decade later, Congress successfully overrode an has said that “three-fourths of what I read that was actual veto by President Gerald Ford; only then was classified shouldn’t have been.” Carol A. Haave, Congress able to enact into law the 1974 Freedom the Bush administration’s deputy undersecretary of of Information Act Amendments. defense for counterintelligence and security, testifi ed Yet principle must always prevail over party or in August that “we overclassify information . . . say, power. Open government is one of the most basic 50-50.” Under the leadership of Senators Ron Wyden requirements of any healthy democracy. It allows and Trent Lott, a remarkable bipartisan coalition of taxpayers to see where their money is going. It Senators has vowed to reform our classifi cation bu- permits the honest exchange of information that reaucracy to ensure that our government remains as ensures government accountability. It upholds the open as possible. ideal that government never rules without the con- Just as the cause of open government is non- sent of the governed. President Lincoln once said partisan, however, so too are the sources of open that “no man is good enough to govern another government problems. Any party in power is without that person’s consent.” But of course, con- always reluctant to share information, out of an sent is meaningless unless it is informed consent. understandable (albeit ultimately unpersuasive) For that very reason, the cause of open government fear of arming its enemies and critics. For example, is as American as our commitment to our constitu- according to the Secrecy Report Card—a recent report tional democracy itself. published by a remarkable coalition of journalists lLBJl

LBJ JOURNAL OF PUBLIC AFFAIRS FACULTY CORNER

BY SHERRI GREENBERG

Sherri Greenberg served for ten years as a member of the Texas House of Representatives, complet- ing her fi nal term in January 2001. In 1999, she was appointed by the speaker of the house to chair the THE NEW ART AND House Pensions and Investments Committee. After the 1999 legisla- tive session, the speaker appointed SCIENCE OF TEXAS her as chair of the Select Commit- tee on Teacher Health Insurance. Greenberg served two terms on the REDISTRICTING: House Appropriations Committee and served on the Appropriations HAT ABOUT UBLIC OLICY Committee’s Education and Major W P P ? Information Systems Subcommit- tees. Other committee assignments included the House Economic Development Committee and the CCORDING TO THE TEXAS LEGISLATIVE COUNCIL’S Welfare-to-Work Committee. technically correct defi nition, redistricting is “the process of Aredefi ning the geographic boundaries of individual election Greenberg’s professional back- units such as legislative or congressional districts or county election ground is in public fi nance. She precincts.”1 In reality, redistricting is much more; it is the art and sci- served as the Manager of Capital ence of balancing political and legal issues. The Voting Rights Act of Finance for the City of Austin 1965, as substantially revised in 1982, requires the State of Texas to ob- from 1985 to 1989, overseeing the tain prior federal approval of redistricting plans and allows members City’s debt management, capital of minority groups to challenge plans.2 However, the standard that budgeting, and capital improve- the United States Supreme Court has set for partisan gerrymandering ment programs. Prior to that she by major political parties is exceedingly diffi cult to meet.3 worked as a Public Finance Offi cer Therefore, redistricting in Texas always has been, and always will for Standard & Poor’s Corporation be, political and partisan. The political and partisan question is one in New York, where she analyzed of degree. The new art and science of redistricting has changed the and assigned bond ratings to public equation, and public policy is the big casualty. What is new as far as projects across the country. the art and science of redistricting? Greenberg has a B.A. in govern- ment from UT Austin and an M.S. THE ART AND SCIENCE OF REDISTRICTING in public administration and policy from the London School of Econom- The art of redistricting has revolved around constitutions, statutes, ics. At the LBJ School she teaches and lawsuits. Federal law requires states to redraw congressional courses in public fi nancial man- districts after release of the United States census every ten years.4 The agement, policy development, and Texas Constitution requires the Texas Legislature to draw new Texas public administration and manage- House and Senate districts in the fi rst regular Texas legislative session ment. Her teaching and research after the census results.5 For most of its history, the Texas Legislature interests include public fi nance and has only undertaken redistricting as required after the census or as a budgeting, Texas state government, result of lawsuits and subsequent court decisions. As we will see, this local government, health care, edu- scenario, and the art of redistricting, changed dramatically when the cation, utilities, transportation, and Texas Legislature redrew congressional districts in 2003. campaigns and elections.

LBJ JOURNAL OF PUBLIC AFFAIRS 12 FACULTY CORNER FALL 2004

For many years the science of redistricting was a ing new and had been part of the art of redistricting traditional exercise involving pencils, papers, and for years. maps. The science of redistricting in Texas began a huge transformation with the introduction of com- COURTS AND SPECIAL SESSIONS puter technology in the 1991 legislative session. Various interests fi led a number of voting rights lawsuits challenging the house, senate, and congres- THE NEW SCIENCE OF REDISTRICTING: sional districts that the Texas Legislature devised 1991 DAWN OF REDAPPL in 1991. The Governor called special sessions on The computerized application, RedAppl, was in redistricting in August of 1991 and January of its infancy during 1991 redistricting. New districts 1992. Ultimately, the state of Texas held the 1992 were drawn using computerized modeling, but the Texas House and Senate elections in districts that system was cumbersome and limited.6 Members the court redrew and substantially changed.8 As of the Legislature went, one by one, to the Texas a result of court actions, the state held the 1994 Legislative Council, where a Legislative Council house and senate elections in districts redrawn by staff member used one of eight computers to draw the Legislature in 1992 with signifi cant changes in district lines according to the legislator’s specifi ca- the senate districts.9 After additional court actions, tions. However, the new computer technology al- the Legislature made changes in the 1997 regular lowed legislators to draw district lines with much session to the Texas House and Senate districts for greater precision than in prior years. the 1998 elections.10 Plaintiffs fi led a lawsuit in federal court in 1994, challenging the congressional districts. The court THE REALITY OF REDISTRICTING: 1990S voided the primary elections in 13 of the 30 State of Texas Senate districts and required special elections As a freshman member of the Texas Legislature in in those districts according to court-drawn interim 1991, I experienced Texas House, Senate, and U.S. districts.11 When the Texas Legislature was unable congressional redistricting fi rsthand. I made my to draw new districts, the court required its plan to appointments and went to the dark room in the be used for the 1998 elections.12 Texas Legislative Council to sit with a staff mem- ber and use RedAppl. The experience was not user friendly, but it defi nitely was far superior to using 1993 LEGISLATION: THE ART pencil and paper. In 1991, from a public policy standpoint, I and The 1991 redistricting saw the debut of the RedAppl most other legislators saw redistricting as a neces- computerized system, but the art of redistricting re- sary, but unpleasant, process for the good of democ- mained largely unchanged. Incumbents attempted racy. I considered redistricting vitally important to to draw districts to their advantage, challengers maintain the sacrosanct democratic mandates of with sway attempted to draw districts to their “one-person, one-vote” and “equal protection.”7 advantage, the dominant political party sought However, redistricting was unpleasant because of to maintain power, and voting rights challenges its inherently tedious and political nature, with in- occurred. After all was said and done, incumbent cumbents seeking protection, political parties seek- Republican State Senator Jeff Wentworth of San ing power, and other interests pursuing agendas. Antonio found that his house was no longer in his Also, as an elected state representative, I realized district, and he had to move.13 that redistricting was consuming the legislative In the 1993 Texas legislative session, Senator agenda, leaving little time for the public policy Wentworth introduced a constitutional amendment issues important to my constituents. At the time, to change business as usual and the art of redistrict- redistricting was not an endeavor that the majority ing in Texas. Wentworth’s proposed constitutional of legislators would agree to engage in more fre- amendment took legislators out of the process di- quently than the every ten years required by law. rectly, but allowed the Texas House and Senate to During the 1991 regular session, the Texas each appoint two Democrats and two Republicans Legislature passed redistricting bills for the new to a redistricting board. At the time, many Re- Texas House and Senate districts. It drew the new publicans, who were in the minority in the Texas congressional districts in an August 1991 special Legislature, supported the constitutional amend- session. Predictably, passing redistricting bills was ment, and most Democrats did not.14 Needless to far from the end of the process. Lawsuits were noth- say, the constitutional amendment did not pass

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII FACULTY CORNER 13

the Legislature. Nevertheless, a number of other create Texas House and Senate districts if the Texas states are using some type of redistricting board. Legislature fails to do so in the fi rst regular session Senator Wentworth has continued to introduce his after the census, as required by the Texas Constitu- constitutional amendment in every regular legisla- tion.20 The LRB has fi ve members: the lieutenant tive session since 1993. governor, speaker of the house, attorney general, comptroller, and land commissioner.21 The new Texas House and Senate districts THE NEW SCIENCE OF REDISTRICTING: devised by the LRB helped change the balance 2001 AGE OF REDAPPL of political party power in the Texas House from Democratic to Republican, paired a number of By 2001, the Texas Legislative Council had made incumbents against each other in the newly drawn quite signifi cant improvements to the computerized districts, and assisted some challengers. redistricting modeling application, RedAppl.15 The 200l RedAppl system ran on a PC in each member’s 2001 CONGRESSIONAL REDISTRICTING Capitol offi ce, and it was much faster and more The Texas House passed a congressional redistrict- user-friendly, with new features.16 In addition, ing plan in the 2001 regular session, but the plan legislators were able to review and print some plans died in the Texas Senate. Governor Perry refused and maps in their offi ces, and proposed public plans to call a special session, even though the law allows were accessible to citizens on an Internet application special sessions for congressional redistricting. (In called RedViewer.17 Texas, only the governor can call special sessions, Not only was the 2001 version of RedAppl more and they are not allowed for Texas House and Sen- convenient for legislators, it also was not limited ate redistricting.) Governor Perry stated, “I believe any longer to legislators’ use. Since RedAppl was that Texans would be even more disappointed if available on PCs in the Texas House and Senate we expend considerable sums of taxpayer money members’ offices, political consultants, political to call the legislature into a special session that party strategists, and a host of other players could has no promise of yielding a redistricting plan for draw districts and maps with laser-like precision. Congress.”22 Hence, the task fell to a three-judge A whole new age in the science of redistricting had federal panel, which added two new Republican arrived with enhanced tools for incumbents seek- congressional districts. ing protection, political parties seeking power, and other interests pursuing agendas. THE NEW DYNAMICS AND 2001 HOUSE AND SENATE REDISTRICTING ART OF REDISTRICTING: 2003 In the 2001 regular session, the Texas House passed a bill redrawing the Texas House and Senate dis- The governor, lieutenant governor, speaker of the tricts. However, the situation was much different house, and Texas Legislature took actions in 2003 in the Republican-controlled Texas Senate. There, that dramatically changed the dynamics and art Senator Jeff Wentworth chaired the Redistrict- of redistricting. At the urging of Republican U.S. ing Committee, which had a membership of four House Majority Leader Tom DeLay of Texas, the Democrats and four Republicans. The Redistricting Texas Legislature took up a congressional redis- Committee devised a map that seven of its eight tricting bill in the 2003 regular session, without committee members voted for. Nevertheless, the any statutory, constitutional, or court mandate.23 map failed to pass the Texas Senate because the Re- DeLay wanted the congressional districts redrawn publican majority believed that it could get a more to increase the number of Republicans in the U.S. partisan Republican map by letting the Legislative House of Representatives.24 Months of mammoth Redistricting Board draw the map.18 political brawling ensued. Of course, the Democrats in the Texas Legisla- THE LEGISLATIVE REDISTRICTING BOARD (LRB ) IN 2001 ture were not amused by the prospect of increas- According to the Texas Legislative Council, “The ing the number of Republican U.S. House districts LRB was created in 1948 by constitutional amend- at the bidding of Tom DeLay. In May of 2003, at ment to ensure that the state would ‘get on with the end the regular session, most of the Democrats the job of legislative redistricting which had been in the Texas House fl ed to Ardmore, Oklahoma, neglected or purposely avoided for more than and broke the quorum. The 2003 regular session twenty-five years.’”19 The LRB is authorized to ended without new congressional districts, but

LBJ JOURNAL OF PUBLIC AFFAIRS 14 FACULTY CORNER FALL 2004 the saga was far from over. By its end, the 78th ratings dropped with each special session.29 Many Texas Legislature had three special sessions on members of the public and press wondered why the congressional redistricting. Texas Legislature could spend time and money on congressional redistricting and not on important FIRST SPECIAL SESSION state issues. What about public policy? Governor Perry called the fi rst special session on congressional redistricting in July of 2003. How- ever, the special session ended with no action on PUBLIC POLICY CONSIDERATIONS congressional redistricting because the Texas Sen- ate lacked the 16 vote, two-thirds majority to bring Redistricting is the art and science of balancing the bill to the fl oor for consideration.25 Ironically, political and legal issues; the balance in the State of the Texas Senate has the two-thirds rule in order Texas has changed to the detriment of public policy. to require substantial bipartisan consensus before Redistricting in the Texas Legislature has always a bill reaches the fl oor.26 been political and partisan, but it has reached higher levels with the convergence of new art and science. SECOND SPECIAL SESSION Since the 1990s, the art of redistricting has changed The second special session on congressional redis- with a willingness to redraw districts without a tricting immediately followed the failed fi rst spe- statutory, constitutional, or court mandate, and the cial session in 2003. However, 11 of the 12 Senate science of redistricting has changed with computer Democrats already had fl ed to Albuquerque, New technology enabling people to draw districts with Mexico, leaving the Texas Senate unable to make laser-like precision. a quorum. The 11 Democratic Senators voiced The tools exist for incumbents of either party their disapproval of the lieutenant governor’s to draw extremely precise districts for self-pres- decision to eliminate the Texas Senate’s two- ervation, and the motivation exists for whichever thirds support rule to bring a bill to the Senate political party is in power to maintain dominance. floor.27 Even the imposition of monetary fines A huge concern from the public policy standpoint and the removal of budgets, cell phones, parking is can we ever put the genie back in the bottle? The places, and other privileges by the Republican Texas Legislature cannot tend to important mat- Lieutenant Governor, David Dewhurst, and the ters of public policy if it is constantly drawing new Republican members of the Texas Senate (except districts instead of only undertaking redistricting Republican Senator Bill Ratliff, who stayed home every ten years as required by law. in his district to express his disapproval) did not Public policy in the state of Texas has been the big compel the Democrats to return. Thus, the second casualty of the new art and science of Texas redis- special session ended with, yet again, no action tricting. The cherished bipartisan nature of the Texas on congressional redistricting.28 Senate, which has been such an asset to public policy, has been called into question. Precious legislative time THIRD SPECIAL SESSION for considering major public policy matters has been Governor Perry called the third, and fi nal, special squandered. As Senator Wentworth recently stated, session on congressional redistricting in Septem- “Voters want the Legislature to work on health care, ber of 2003. Democratic Texas State Senator John tax policy, and public education.”30 Whitmire broke ranks with the Democrats in New A Travis County grand jury has indicted several Mexico, giving the Texas Senate a quorum and of Tom DeLay’s close associates for their alleged forcing the Democrats to return and fi ght in the involvement with illegal corporate contributions Legislature. This time, with a quorum present and in the 2002 Texas elections.31 For the 2005 Texas the two-thirds rule suspended, a congressional re- legislative session, legislators, in a bipartisan effort, districting bill came to the fl oor of the Texas Senate have fi led a new round of bills calling for recording and passed. all legislative votes and restricting corporate and The congressional redistricting bill also passed union campaign contributions. Once again, Senator the Texas House, and Governor Perry approved Wentworth will fi le his constitutional amendment it. This phase of the Texas 2003 congressional re- to limit the Texas Legislature’s direct involvement districting saga came to an end not a moment too in redistricting by creating a bipartisan redistrict- soon. Each special session cost the State of Texas ap- ing board.32 In a recent interview, Wentworth said proximately $1.7 million, the public was fed up, and that the process should be balanced and fair for the governor’s and lieutenant governor’s approval Texans.33 “I oppose a one-party Texas, and all in-

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII FACULTY CORNER 15 cumbents should be in danger of being tossed out if 21. Texas Legislative Council, Guide to 2001 Redistricting, their constituents are not happy,” he added. 34 p. 8. The new congressional districts achieved Tom 22. Dave McNeely, “Perry, GOP do a 180 on redistricting,” DeLay’s goal in the 2004 congressional elections, Austin Amercian-Statesman (July 3, 2003). with Republicans winning 21 of Texas’ 32 seats 23. Ibid. in the U.S. House of Representatives. However, 24. Ibid. it may not be over yet. In a new twist, because of a ruling in another redistricting case, the U.S. 25. Ibid. Supreme Court sent the Texas Democrats’ redis- 26. Dave McNeely, “Dewhurst at crossroads in redistrict- tricting case back to the 5th U.S. Circuit Court of ing in Senate,” Austin American-Statesman (July 16, Appeals for reevaluation.35 Redistricting could end 2003). up back at the Supreme Court, and then back in the 27. Editorial, “Time to Deal,” Dallas Morning News (August Texas Legislature. There even could be new Texas 15, 2003). congressional districts and special elections in two 28. Ken Herman, Laylan Copelin, and David Pasztor, years, and, of course, there always could be a new “Democrats face another slap on the wrists,” Austin round of lawsuits. American-Statesman (August 16, 2003). What about public policy? We shall see. 29. Eric Allen and Associated Press, “Perry calls third lLBJl special session,” news8austin.com, September 9, 2003. Online. Available: http://www.news8austin. com/shared/print/default.asp?ArID=83326. NOTES 30. Wentworth interview. 31. Laylan Copelin, “DeLay’s top fund-raisers indicted 1. Texas Legislative Council, Guide to 2001 Redistricting in election case,” Austin American-Statesman (Sep- (Austin, Tex., February 2000), p. 27. tember 22, 2004). Online. Available: http://www. 2. Texas Legislative Council, State and Federal Law Govern- statesman.com/metrostate/content/metro/elxpacs/ ing Redistricting in Texas (Austin, Tex., March 2001), 22GRANDJURY_rs.html. p. 2. 32. Wentworth interview. 3. Ibid., p. 116. 33. Ibid. 4. Ibid., p. 7. 34. Ibid. 5. Ibid., p. 5. 35. “Back to the Congressional drawing board?” Austin 6. Texas Legislative Council, Guide to 2001 Redistricting, American-Statesman (October 18, 2004). Online. Aval- p. 1. able: http://statesman.printthis.clickability.com/pt/ cpt?action=cpt&title=statesman.com+%7C. 7. Ibid., p. 3. 8. Ibid., p. 13. 9. Ibid. WORKS CITED 10. Ibid, p. 14. 11. Ibid., p. 13. Allen, Eric, and Associated Press. “Perry calls third special session.” news8austin.com (September 9, 2003). Online. 12. Ibid., p. 14. Available: http://www.news8austin.com/shared/ 13. Telephone interview by Sherri Greenberg with Senator print/default.asp?ArID=83326. Jeff Wentworth, December 2, 2004. “Back to the Congressional drawing board?” Austin 14. Ibid. American-Statesman (October 18, 2004). Online. Avail- 15. Texas Legislative Council, Guide to 2001 Redistricting, able: http://statesman.printthis.clickability.com/pt/ p. 1. cpt?action=cpt&title=statesman.com+%7C. 16. Ibid. Copelin, Laylan. “DeLay’s top fund-raisers indicted in election case.” Austin American-Statesman (Sep- 17. Ibid. tember 22, 2004). Online. Available: http://www. 18. Wentworth interview. statesman.com/metrostate/content/metro/elxpacs/ 19. Texas Legislative Council, State and Federal Law Gov- 22GRANDJURY_rs.html. erning Redistricting in Texas, p. 8 (endnote 25). Editorial. “Time to Deal.” Dallas Morning News (August 20. Ibid., p. 9. 15, 2003). Herman, Ken, Laylan Copelin, and David Pasztor.

LBJ JOURNAL OF PUBLIC AFFAIRS 16 FACULTY CORNER FALL 2004

“Democrats face another slap on the wrists,” Austin Texas Legislative Council. Guide to 2001 Redistricting. American-Statesman (August 16, 2003). Austin, Tex., February 2000. McNeely, Dave. “Dewhurst at crossroads in redistricting in _____. State and Federal Law Governing Redistricting in Texas. Senate.” Austin American-Statesman (July 16, 2003). Austin, Tex., March 2001. _____. “Perry, GOP do a 180 on redistricting.” Austin Wentworth, Jeff, Texas State Senator. Telephone interview Amercian-Statesman (July 3, 2003). by Sherri Greenberg, December 2, 2004.

LBJ JOURNAL OF PUBLIC AFFAIRS TIME FOR CHANGE: UNITED NATIONS CHARTER RULES ON THE USE OF FORCE

But it is not enough to denounce unilateralism, unless we also face up squarely to the concerns that make some States feel uniquely vulnerable, since it is those concerns that drive them to take unilateral action. We must show that those concerns can, and will, be addressed effectively through collective action. Excellencies, we have come to a fork in the road. This may be a moment no less decisive than 1945 itself, when the United Nations was founded. Kofi Annan, Address to the UN General Assembly, 2003

The drafters of the United Nations Charter created a framework for handling problems that did not envision the threat of terrorism. The Charter developed from the principles of Westphalian diplomacy, in which nation-states were the only signifi cant actors in interna- tional relations. Today, nonstate actors pose an increasing threat to international peace and stability. Terrorist attacks planned, fi nanced, and executed by nonstate organizations have a high potential for humanitarian tragedy. Terrorism affects not merely one region or nation; it is a global concern. While this growing menace requires a global response, the primary mechanism for addressing terrorist threats, the UN Charter system, is under severe strain. Nations have been willing to work outside the Charter’s collective BY KATHLEEN P. CONNELLY security agreement to protect their interests. Recently, the United States deviated from the UN’s legal framework to combat terrorism Kathleen P. Connelly earned her in Afghanistan and protect America from a perceived threat in Iraq. B.A. in philosophy and the history of Critics allege that U.S. action threatens the very existence of the Char- mathematics and science at St. John’s ter system and that American unilateralism undermines established College in Annapolis, Maryland. international laws governing the use of force. But this criticism is After completing her undergradu- misplaced, for it fails to address the proximate cause of American ate work, Kathleen spent three years action: the inability of the Charter system to ensure the security of its in Vicenza, Italy, where she studied members. Moreover, the use of force outside the Charter framework Italian language and culture. In May is not a new phenomenon, nor is it isolated to the problem of terror- of 2005, Kathleen will earn a J.D. ism. Rather, international response to recent events highlights the from The University of Texas School structural problems that have always existed within the Charter. Inter- of Law. She thanks General Mont- national law regarding the use of force, as articulated in the Charter, gomery Meigs for his guidance in creates an unworkable system for addressing threats to international developing this paper.

LBJ JOURNAL OF PUBLIC AFFAIRS 18 TIME FOR CHANGE FALL 2004 peace and security. The international community tack. Imminence involves an attack so near in time has a choice: revise the Charter and ensure that the that there is no opportunity for deliberation. Daniel UN remains a viable body responsive to the world’s Webster fi rst enunciated this principle while negoti- problems, or risk a continued divergence between ating the Caroline case, in which the British military state practice and international law. seized and destroyed the American steamship the Caroline at Fort Schlosser, New York, after it had been repeatedly used to aid Canadians rebelling THE UNITED NATIONS CHARTER: against the British Crown. PROVISIONS REGARDING THE USE OF FORCE The British defended the raid on the steamboat Caroline against claims that it violated U.S. sov- In 1945, the drafters of the Charter met in San Fran- ereignty, arguing that their actions constituted a cisco, where they agreed on the Charter’s structure, legal exercise of self-defense. Webster argued that language, and provisions. Having suffered through force used in self-defense requires a showing of “a two world wars within 25 years, much of the in- necessity of self-defence, instant, overwhelming, dustrialized world was in ruins. The UN sprung leaving no choice of means, and no moment for from a hope among nations that, through dialogue deliberation.”3 Furthermore, any such acts could not and cooperation, states could prohibit aggression. be “unreasonable or excessive.” Webster’s standard Article 2(4) embodies the Charter’s ambition of is now universally recognized as the justifi cation for limiting armed force, stating that the use of force in self-defense.4 Rather than codify this traditional justifi cation, All members shall refrain in their international the UN Charter limits the permissible use of force relations from the threat or use of force against to a much narrower circumstance. States may only the territorial integrity or political independence use force in self-defense if an armed attack occurs. of any state, or in any manner inconsistent with This principle greatly circumscribes customary the purposes of the United Nations. international law5 and seems counterintuitive, particularly in the age of nuclear weapons. Recent As a further limit on states’ use of force, the Char- terrorist events have prompted some scholars to ter asserts that the Security Council, not member interpret the Charter’s language broadly, arguing states, will “determine the existence of any threat that military preparations undertaken as a prelude to the peace, breach of the peace, or act of aggres- to an attack should be understood as part of the sion.”1 The Charter makes the Security Council the attack.6 Nonetheless, minutes from the meetings in supreme authority for the determination of any which the drafters created this language illustrate threat and the body solely entrusted with the power the authors’ contrary intentions. to use force. Recognizing the proposed Charter’s strictures on Signatories of the Charter cede to the Security state action, the State Department’s legal adviser, Council the authority to decide when force may be Green Hackworth, alerted the deputy head of the used, with one exception. Article 51 states, “Nothing U.S. delegation, Governor Harold Stassen, that this in the present Charter shall impair the inherent right language “greatly qualified the right of self-de- of individual or collective self-defence if an armed fense.”7 Governor Stassen acknowledged this con- attack occurs against a Member of the United Na- cern, but insisted that the wording “was intentional tions.” A state’s right to act in self-defense comes and sound. We did not want exercised the right of into being only once attacked, lasts only until the self-defense before an armed attack had occurred.”8 Security Council acts, and in no way affects the Another member of the U.S. delegation worried Council’s authority to restore peace. While the about “our freedom under this provision in case a Charter purports to leave untouched the “inherent” fl eet had started from abroad against an American right of self-defense, in fact it makes an important republic, but had not yet attacked.”9 Governor Stas- revision to customary international law2 regarding sen answered, “we could not under this provision the use of force in self-defense. attack the fl eet but we could send a fl eet of our own Customary international law recognizes the right and be ready in case an attack came.”10 to self-defense when three criteria exist: necessity, These remarks reveal two important points about proportionality, and imminence. Necessity requires the Charter’s draftsmanship. First, the armed attack that states exhaust all alternatives to force. Pro- requirement was purposeful. The delegates wished portionality obliges states to apply only the force to create a bright-line test that clearly demarcates necessary to deter attack or defeat an ongoing at- when a nation may legally invoke the right to

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII TIME FOR CHANGE 19 defend itself. Furthermore, Governor Stassen’s concluded that Nicaraguan assistance to rebels comments defeat attempts to broaden the right of in El Salvador did not constitute an armed attack, self-defense. If an approaching enemy fl eet would and did not justify action in self-defense. An armed not justify action in self-defense, then neither would attack does not include “assistance to rebels in the enemy preparations to deploy the fl eet. form of provision for weapons or logistical or other The second observation regarding the drafters’ support,” a “mere supply of funds to the contras,” remarks is a corollary to the fi rst. The drafters or the provision of arms to the opposition in another envisioned a world in which victim states would state.12 Rather, armed attack can entail two different discover an enemy’s approach. But the threat scenarios: action by regular armed forces across an has changed since the Charter’s creation, and as international border or the sending of armed bands, the Madrid bombings show, mercenaries, or irregular forces force does not require weap- against another state. A state ons to be easily detectable. International law only incurs responsibility for The enemy may not wear the regarding the use of the action of an irregular force uniform of his state’s armed when two conditions exist. First, forces, and the technology force, as articulated the state must be “substantially necessary to wreak havoc on a in the Charter, creates involved” in the acts of the ir- state’s populace is now widely regular forces.13 Second, these available to those willing to an unworkable system irregular forces must carry out use it. Rather than adapting for addressing threats an attack of such gravity and the language to the realities effect that the force is equivalent of modern threats, the body to international peace to that used by a regular army. charged with interpreting and security. Thus, the Court gives two the Charter, the International different standards for armed Court of Justice, has further attack: one involving the use of restricted states’ ability to claim a justifi able use a nation’s armed forces and the other involving ir- of force in self-defense. regular forces hosted within a nation’s boundaries. When a state’s regular army prosecutes a war across international boundaries, the legal requirement of NICARAGUA V. UNITED STATES: FURTHER an armed attack is clearly satisfi ed. But when ir- DILUTION OF THE RIGHT OF SELF-DEFENSE regular forces attack another state, the victim state may only respond if it can show the host state’s In Nicaragua v. United States, the International substantial involvement in the irregular group’s Court of Justice even further narrowed Article activities and if the irregular group infl icts consid- 51’s meaning, foreclosing arguments over the erable damage. term “armed attack” and again impairing the The Court does not defi ne what action would “inherent right . . . of self-defence” the Charter constitute “substantial involvement.” However, claims to leave untouched. extrapolating from the language cited above, lo- Nicaragua filed suit against the U.S. in 1984, gistical support, fi nancial assistance, and provision claiming that America was responsible for the of weapons do not constitute an armed attack and paramilitary activities of contras acting against therefore logically could not be considered as sub- Nicaragua.11 The U.S. responded that Nicaraguan stantial involvement. The Court leaves the world support for rebels in El Salvador constituted an act with an obvious question: A nation may play host of aggression, and therefore U.S. actions were justi- to armed bands and provide them with logistical fi ed pursuant to the principle of collective self-de- support, funding, and weapons without being “sub- fense and U.S. obligations under the Inter-American stantially involved” in their activities—so what type Treaty of Reciprocal Assistance. The Court wrote of support would make the host nation liable under that, if in fact Nicaraguan action constituted an international law? The Court has not answered that armed attack as the U.S. claimed, the U.S. could le- question. As will be discussed below, the state of gally invoke the principle of collective self-defense. the law after Nicaragua creates a legal dilemma for Such a determination required an examination of the world community. the meaning of “armed attack.” In a decision with enormous implications for the campaign against terrorism today, the Court

LBJ JOURNAL OF PUBLIC AFFAIRS 20 TIME FOR CHANGE FALL 2004

CHARTER PROVISIONS ON THE USE OF FORCE: manitarian reasons, but in response to the terrorist TIME FOR CHANGE attacks of September 11, 2001. Again, there are two situations in which a state may legitimately use The current system of international law is untenable force: after suffering an armed attack or after receiv- for three reasons. The Charter forces states to disobey ing Security Council authorization. American use of its precepts to maintain international peace and secu- force against the Taliban in Afghanistan met neither rity. It allows tyrants and dictators to hide behind the of these criteria. walls of Westphalian sovereignty. Finally, the Charter Some have argued that Security Council resolu- provisions on the use of force do not describe and tions both recognized a right to act in self-defense never have described state behavior. and gave tacit authorization for U.S. strikes in Af- ghanistan. Although language in the Security Council ACTION OUTSIDE THE CHARTER FRAMEWORK resolutions seems to support this point, the opposite Charter provisions on the use of force compel states is true. Immediately following the terrorist attacks, to act outside the legal boundaries established by the Security Council passed a resolution “reaffi rming the UN framework. Several examples illustrate this the inherent right of individual or collective self-de- problem: NATO action in Kosovo, U.S. action in Af- fence.”16 Subsequent resolutions declared that terrorist ghanistan, and more recently, U.S. action in Iraq. attacks “constitute one of the most serious threats to By the fall of 1998, hostilities in Kosovo had international peace and security in the twenty-fi rst already forced 280,000 Kosovars from their homes, century,” and that “any . . . form of support for acts an estimated 50,000 of whom fled into the sur- of international terrorism [is] . . . contrary to the rounding mountains. With the approach of winter, purposes and principles of the Charter of the United the Security Council recognized an “impending Nations.”17 TheThe CouncilCouncil “[c]ondemn[ed]“[c]ondemn[ed] thethe TalibanTaliban humanitarian catastrophe” and declared that the for allowing Afghanistan to be used as a base for the deteriorating situation “constitute[d] a threat to export of terrorism by the Al-Qaida network . . . and peace and security in the region.”14 Although the for providing safe haven to Usama Bin Laden.”18 Security Council demanded an end to hostilities and Nonetheless, the same resolution reaffirmed the the start of a meaningful dialogue, members could Security Council’s “commitment to the sovereignty, not agree on military action to force the sides to the independence, territorial integrity and national unity negotiating table. When international diplomatic of Afghanistan.”19 efforts failed, NATO took military action against a Security Council resolutions mentioning both sovereign state. the inherent right of self-defense and the sover- NATO forces acted without prior UN Security eignty and territorial integrity of Afghanistan Council authorization. In fact, European nations send an ambiguous message about the use of force and the U.S. did not even seek such authorization against Afghanistan. Invoking the inherent right as they understood that Russia would veto any to self-defense seems to sanction U.S. response to resolution. Nor could NATO justify its actions as the September 11th attacks, while noting the ter- self-defense. The acts of aggression in Kosovo were ritorial integrity of Afghanistan recalls the general essentially within the domestic jurisdiction of Yu- prohibition on the use of force from Article 2(4). goslavia, and the intervention was illegal. But the authoritative interpretation of Article 51 Following the successful air campaign, Sweden by the International Court of Justice in Nicaragua v. assembled an international panel of commentators United States makes clear that U.S. action against the and key foreign policy makers to examine the case Taliban cannot fall within the self-defense exception for intervention and the future implications of the to the general prohibition on the use of force. Mere NATO campaign. In a report to the UN in October provision of funds, weapons, or logistical support 2000, the Independent International Commission cannot constitute an armed attack. The Court’s on Kosovo concluded that the intervention was analysis has left one scholar to conclude that even “illegal, but legitimate.”15 It is diffi cult to overstate if “the government of Afghanistan had directly the implications of this conclusion. An international provided the terrorists with airplane tickets, funds legal system in which legitimacy and legality are no for fl ight lessons, and the box cutters used to hijack longer coterminous risks the future disdain of mem- the aircraft that crashed into the World Trade Center ber states, precisely what happened in Kosovo. and the Pentagon . . . such support still would not Operation Enduring Freedom presents another constitute an armed attack.”20 Absent evidence that example of the diffi culties of working within the the Taliban was directing the attacks on the New Charter. This time, the use of force was not for hu- York and Washington, D.C., “mere provision” of

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII TIME FOR CHANGE 21 logistical support is inadequate justifi cation for ac- freedoms for all without distinction as to race, sex, tion in self-defense. language, or religion.”26 Nonetheless, the Charter Nor did the Council authorize the U.S. strike on impedes the protection of human rights abuses in the Taliban by passing a resolution explicitly sanc- three ways. First, the body charged with deciding tioning American actions. Resolutions expressed when human rights violations justify intervention, support for the efforts of the Afghan people, not the the Security Council, cannot be counted on to act coalition, and called on member states to provide quickly. Second, even if the Security Council identi- long-term assistance and humanitarian relief, not fi es violations, the UN lacks the tools to implement military force.21 Perhaps more important, the U.S. its directives. Finally, the Charter makes illegal the never sought such authorization. unilateral use of force to prevent humanitarian The recent international row over Iraq is the crises and disallows unilateral intervention even strongest commentary on for the most egregious hu- the effectiveness of the UN man rights abuses. Charter Charter. Resolution 687 provisions inadvertently enumerated the terms on As Robert Kagan noted, shelter tyrants and dicta- which the Security Coun- “nations decide for tors behind the rampart of cil conditioned the cease- territorial integrity, barring fi re and end of the Persian themselves, guided by their a Security Council autho- Gulf War.22 The resolution own morality and sense of rization to intervene and required the destruction justice and order, when war an effective coalition of na- of all chemical and long- tions willing to execute the range missile stocks and is justifi ed or not. That . . . Security Council’s will. Iraq’s submission to an is the only world we have Recent history demon- international monitoring strates the problems with and inspection regime. In ever lived in. It is a world the assumption that the the following years, Iraq in which those with power, Security Council could be repeatedly hampered the counted on to act quickly United Nations Special believing they have right on and objectively. In 1998, Commission’s (UNSCOM) their side, impose their sense when Slobodan Milosevic efforts to inspect and dis- of justice on others.” initiated a campaign of eth- mantle Iraqi weapons pro- nic cleansing in Kosovo, grams, culminating with Europe and the U.S. relied the Iraqi designation of 68 not on the UN to intervene, “presidential and sovereign sites” exempt from but on NATO. The threat of a veto from Russia, a UNSCOM’s jurisdiction. A Security Council reso- permanent member of the Security Council, pre- lution declared Iraq to be in “fl agrant violation” of vented any Security Council authorization. The four previous resolutions and demanded that Iraq structure of the Security Council makes action even cooperate fully with UNSCOM.23 The President in these more clear-cut cases diffi cult. One member of the Security Council promised “serious conse- can frustrate the efforts of a large coalition of nations quences” if Iraq failed to comply.24 to protect an entire people from extermination. Five years and several Security Council resolu- The genocide in Rwanda showcases the prob- tions later, President Bush declared that Saddam lems that exist when the Security Council agrees Hussein was a serious threat to the U.S. and to the that something must be done but fails to secure world.25 On March 19, 2003, the U.S. attacked Iraq, appropriate resources to act. On May 17, 2004, the without the Security Council’s explicit authoriza- Security Council authorized 5,500 troops as part of tion, and without having sustained the prior attack an expanded United Nations Assistance Mission necessary to characterize the action as self-defense for Rwanda (UNAMIR).27 Over a month after this under the Charter. Operation Iraqi Freedom was authorization, only one member state, Ethiopia, illegal under international law. had contributed a military unit to UNAMIR.28 Lt. Gen. Romeo Dallaire, commander of the UNAMIR FORCIBLE HUMANITARIAN INTERVENTION forces, estimated that it would have taken just Among the purposes listed in Article 1 of the 5,000 troops to end the killing.29 Instead, another Charter is the “promot[ion] and encourage[ment] month would pass before the mission had enough of respect for human rights and for fundamental troops to stop the genocide, and then the soldiers

LBJ JOURNAL OF PUBLIC AFFAIRS 22 TIME FOR CHANGE FALL 2004 wore not the blue UN helmets, but the uniform of those with power, believing they have right on their France’s armed forces. Even assuming a quick and side, impose their sense of justice on others.”31 objective response, the Security Council lacks the State action taken after the Charter’s signing tools to be effective. But the alternative to a force shows that nations ignore treaty provisions when under a UN banner—a force under a single nation’s they believe those provisions do not serve their control—is illegal according to the Charter. Unilat- interests. On September 22, 1980, Saddam Hussein eral intervention is illegal unless authorized by the invaded Iran to seize the oil-rich border province Security Council. Furthermore, according to Charter of Khuzestan, without Security Council authoriza- language, the Security Council itself is powerless tion and without any claim of self-defense. The to intervene to stop human rights abuses that are U.S. responded to the 1998 embassy bombings in internal to a state. Nairobi and Dar-es-Salaam by striking facilities State sovereignty is the bedrock on which the in Sudan and Afghanistan. The 19 NATO nations Charter is premised. Article 2(1) states that the chose not to seek Security Council authorization for “Organization is based on the air campaign in Koso- the principle of the sov- vo. Examples of states ereign equality of all its using force contrary to Members.” Article 2 goes Increasingly, the international the UN Charter abound. on to state that “[n]othing community has demonstrated a Law professor Michael contained in the present willingness to infringe on state Glennon has suggested Charter shall authorize that states do not regard the United Nations to in- sovereignty in certain cases. international “rules” on tervene in matters which States sometimes feel obliged the use of force as obliga- are essentially within the tory.32 Instead, the world domestic jurisdiction of to violate the sovereignty of now recognizes two sepa- any state.”30 Without a a fellow state to terminate rate legal systems: one member state’s consent particularly egregious behavior. de jure and the other de to intervention, the UN facto. The de jure Charter is powerless to prevent a system governs a Platonic civil war or stop a state’s world of Forms,33 while mass murder of its own people. The Charter re- in the de facto system, states weigh the costs and quires the Council to fi nd fi rst that a problem is benefi ts of any action in wholesale disregard of the international in nature before authorizing force. An Charter framework. increasingly interconnected world is less willing to Some might argue that this total departure of tolerate human rights abuse, regardless of whether state practice from the Charter’s precepts is mean- the problem is international or domestic. However, ingless. However, that argument discounts the role international will to intervene requires creative of legitimacy in international decisionmaking and interpretations of Charter language to conform to the fact that states now view the UN as an organiza- Charter law. tion able to dispense legitimacy. States may decide for themselves when war is justifi ed, but that deci- THE CHARTER AND STATE BEHAVIOR sion is not made in total isolation. For example, with The framers of the Charter envisioned a utopia, in the world divided over which course of action to which nations would cede to the Security Council take in Iraq, the UN was the forum in which heads the authority to decide when the use of force was of state argued their case. The nations of Europe appropriate. But the UN Charter does not refl ect looked to the Security Council for a decision. And state behavior or expectations. Rather, the Charter with key ally Tony Blair’s political future in jeop- refl ects international optimism following two hor- ardy, the U.S. engaged in a flurry of diplomatic rendous wars and a hope among nations that they activity to pass a new Security Council resolution. could prevent destruction through cooperation and When the world accords the UN a certain amount dialogue. State practice since the Charter’s adoption of authority, even the most powerful nation cannot has not borne out this optimism. As Robert Kagan blithely ignore that body. noted, “nations decide for themselves, guided by Furthermore, the U.S. and the international their own morality and sense of justice and order, community have a long-term interest in a viable when war is justifi ed or not. That . . . is the only institution able to constrain and encourage certain world we have ever lived in. It is a world in which state practices. But the authority of that institution

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII TIME FOR CHANGE 23 diminishes when its signatories are able to disre- greatest burden in maintaining the world’s stability gard select rules when they see fi t. History shows and economic well-being. However, it is necessary to that nations fl out the legal regime when the benefi ts re-examine the Council’s composition to ensure that of doing so outweigh the costs in treasure, blood, its permanent members are those states most respon- or international censure. That there are so many sible for the maintenance of order. examples is a product not so much of bad behavior, The current Council membership represents the but of bad rules. The rules were not created to better Second World War’s victorious powers, rather than govern this world, but to create a better world. They contemporary infl uence and power in the world. must be modifi ed now or nations will continue to The world in which France should be a permanent dispense with them. member, but not Germany or Japan, no longer ex- ists. Permanent Council membership must include those most capable of providing effective leadership WHAT NEXT? and resources toward the maintenance of interna- tional peace. However, expansion must be limited to The international rules governing the use of force avoid a Council so large that it is incapable of swift are clearly inadequate. Even at its signing, the Char- action. In addition, any modification to Council ter did not create a realistic framework for guiding membership must include statutory requirements state action. Its collective security arrangement does for a review of the Council’s composition at least not suffi ciently protect international security. Provi- once every 25 years. Periodic review will ensure that sions are not backed up with the threat of effective the Council includes those members both willing enforcement and are therefore ignored. If the world and able to undertake its obligations. community truly desires a more effective system Any discussion regarding the Security Council governing the legitimate use of force, states must must also involve a review of the veto power. As signifi cantly revise the Charter. demonstrated above, Kosovo provides a powerful example of a permanent member impeding jus- REDEFINING THE SELF-DEFENSE EXCEPTION tifi able international action. A single permanent The Charter’s self-defense exception is too limited member of the Security Council should not be able in a world where small, nonstate actors threaten to derail the effective management of international global security and stability. Because a fi rst strike peace. Members may not be willing to accept deci- may employ weapons of mass destruction, a rea- sion by a majority vote, but might accept govern- sonable state will not suffer an armed attack before ment by some form of super-majority, maybe all but using force, particularly if the state may prevent the one. Alternatively, two-thirds of the greater Security threat from materializing. A revised defi nition of Council could override the veto of a single perma- legitimate self-defense must allow a state to defend nent member. Or even more radically, the Council itself proactively against both state and nonstate could eliminate the veto mechanism altogether. actors. This broader defi nition also must permit a Regardless of the exact measure adopted, the veto defender state to hold accountable state sponsors of power requires some restriction. violent nonstate groups. Ironically, Webster’s defi - nition of self-defense seems a more suitable starting ERODING THE WESTPHALIAN ORDER point than Article 51. A return to the requirements Increasingly, the international community has of necessity, imminence, and proportionality would demonstrated a willingness to infringe on state provide the Security Council with greater fl exibility sovereignty in certain cases. States sometimes feel in evaluating a state’s invocation of self-defense. obliged to violate the sovereignty of a fellow state to Such a defi nition would also allow threatened states terminate particularly egregious behavior. Michael to protect themselves without venturing outside the Ignatieff suggests that there are fi ve instances in Charter’s legal bounds. which the UN could authorize intervention:

REVISING THE METHOD BY WHICH when, as in Rwanda or Bosnia, ethnic cleans- THE CHARTER SYSTEM AUTHORIZES FORCE ing and mass killing threaten large numbers of Under the current system, the Security Council alone civilians and a state is unwilling or unable to determines threats to international peace and autho- stop it; when, as in Haiti, democracy is over- rizes the use of force. There is no reason to alter this thrown and people inside a state call for help regime, as the permanent members of the Security to restore a freely elected government; when Council are theoretically those states that bear the as in Iraq, North Korea, and possibly Iran, a

LBJ JOURNAL OF PUBLIC AFFAIRS 24 TIME FOR CHANGE FALL 2004

state violates the nonproliferation protocols ter is unworkable and ignored—risks the eventual regarding the acquisition of chemical, nuclear, dissolution of the current forum for settling world or biological weapons; when as in Afghani- disputes, the United Nations. stan, states fail to stop terrorists on their soil lLBJl from launching attacks on other states; and fi nally, when, as in Kuwait, states are victims of aggression and call for help.34 NOTES

The Charter must formally acknowledge that certain 1. UN Charter, art. 39. behaviors will not be protected by claims of domestic 2. The phrase “customary international law” describes jurisdiction. The permanent members of the Security those practices that have evolved over time such that Council should explicitly annotate those instances States believe a certain act engenders a legally binding of egregious behavior. A clear enumeration of these obligation. cases would facilitate the development of standards 3. Letter from Daniel Webster, Secretary of State of the and monitoring mechanisms that allow for rapid United States, to Henry S. Fox, Esq., Envoy Extraor- identifi cation and adjudication. As time passes, new dinary and Minister Plenipotentiary of Her Britannic challenges facing the world may demonstrate that Majesty (April 24, 1841), reprinted in British & Foreign this list needs amendment. The UN needs a statu- State Papers, vol. 29 (1857), p. 1138. Quoted in Michael tory mechanism for re-examining and amending the N. Schmitt, “Preemptive Strategies in International Law,” Michigan Journal of International Law 24 (Winter Charter to account for these challenges. 2003): 530. 4. For a number of excellent examples of Webster’s ENFORCING THE WILL OF THE SECURITY COUNCIL standard still in use today, see Michael N. Schmitt, Finally, any modifi cations to the Charter must ad- “Preemptive Strategies in International Law,” Michi- dress the problem of enforcement. The UN does not gan Journal of International Law, Winter 2003, p. 530. have a military force available on call, as the drafters 5. Richard H. Fellon et al., Hart and Wechsler’s The Federal envisioned. Waiting for the nations of the world to Courts and the Federal System, 5th ed. (The Foundation contribute on a case-by-case basis allows problems Press, 2003), p. 735. like Rwanda to fester and additional thousands to die while the world community deliberates. Some 6. Guy R. Phillips, “Rules of Engagement: A Primer,” Army Lawyer 4 (July 1993): 12. Quoted in Thomas states likely would object to a standing international Graham, Jr., “Is International Law Relevant to Arms armed force under UN direction. Nonetheless, the Control?: National Self-Defense, International Law, ad hoc basis on which current missions are staffed and Weapons of Mass Destruction,” Chicago Journal and supplied is lacking. The member states must of International Law 4 (Spring 2003): 4. find consensus on a more predictable and man- 7. U.S. Department of State, Foreign Relations of the United ageable system for enforcing UN provisions and States: Diplomatic Papers, 1945 (Washington, DC: GPO, Security Council resolutions, or again, the Charter 1967), 707-709. Quoted in Thomas M. Franck, “When, regime’s authority will ebb. If Ever, May States Deploy Military Force Without The Charter system was unworkable from the Prior Security Council Authorization?” Washington moment of its signing. Current events and the University Journal of Law & Policy 5 (2001): 58 – 59. emerging threat of international terrorism have 8. Ibid. highlighted the need for its revision. The evolution 9. Ibid. of technology, the availability of global transporta- 10. Ibid. tion, and new modes of transmitting information have transformed the world. With that transforma- 11. Military and Paramilitary Activities (Nicar. v. U.S.), tion have come new pressures on individual nations 1986 I.C.J. 14, para. 1 (June 27). and on the collective system those nations chose for 12. Ibid., at para. 195, 228, 230. regulating international behavior. The nations of the 13. Ibid., at para. 195. world have reached a fork in the road, a moment 14. Security Council Resolution 1199, 23 September of tremendous opportunity. Modifying the Char- 1998. ter may not bring about the peace and prosperity 15. Independent International Commission on Kosovo: its drafters dreamed of, but with the appropriate The Kosovo Report: Confl ict, International Response, changes, the Charter can provide a normative Lessons Learned, 186 (2000), available at: http://www. framework that states are both willing and able to reliefweb.int/library/documents/thekosovoreport. follow. The alternative—a world in which the Char- htm.

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII TIME FOR CHANGE 25

16. Security Council Resolution 1373, September 28, violence of the worst kind, such as the genocide in 2001. Rwanda, would remain essentially a domestic mat- 17. Security Council Resolution 1377, November 12, ter and outside the UN’s authority, unless the UN 2001. takes action and declares the genocide a threat to international peace. 18. Security Council Resolution 1378, November 14, 2001. 31. Robert Kagan, “Renewing U.S. Legitimacy,” Foreign Affairs 83, no. 2 (2004): 77. 19. Ibid. 32. Glennon, “The Fog of Law: Self-Defense, Inherence, 20. Michael J. Glennon., “The Fog of Law: Self-Defense, and Incoherence in Article 51 of the United Nations Inherence, and Incoherence in Article 51 of the United Charter,” 540. Nations Charter,” Harvard Journal of Law & Public Policy 25 (Spring 2002): 543. 33. Plato uses “Forms” to describe the standards or ideal models against which all sensible perceptions of the 21. Security Council Resolution 1378, November 14, 2001, world are measured. All things in our material world and Security Council Resolution 1383, December 6, are imperfect examples of their pure and perfect Form. 2001. Plato, The Republic, 2nd ed. (Basic Books, 1968), Book 22. Security Council Resolution 687, April 3, 1991. VI. 23. Security Council Resolution 1134, October 23, 1997. 34. Michael Ignatieff, “Why are we in Iraq? (And Liberia? And Afghanistan?).” The New York Times Magazine, 24. Statement by the President of the Security Council, September 7, 2003, sec. 6. UN Doc. S/PRST/1997/49, October 29, 1997. 25. Remarks by the President in Minnesota, The White House, November 3, 2002, http://www.whitehouse. gov/news/releases/2002/11/20021103-2.html. WORKS CITED 26. United Nations Charter, art. 1(3). Bush, George W. United States President. Speech in 27. Security Council Resolution 918, May 17, 1994. Minnesota (November 3, 2002), White House Press 28. Fernando R. Teson, “Collective Humanitarian In- Release. Online. Available: http://www.whitehouse. tervention,” Michigan Journal of International Law 17 gov/news/releases/2002/ 11/20021103-2.html. Ac- (Winter 1996): 364. cessed: November 27, 2004. 29. “Rwanda, remembered,” The Economist, March 27 Fellon, Richard H., et al. Hart and Wechsler’s The Federal – April 2, 2004, 11. Courts and the Federal System. 5th edition. The Foun- dation Press, 2003. 30. While Article 2(7) states that the UN is not entitled to intervene in matters within the domestic jurisdic- Franck, Thomas M. “When, If Ever, May States Deploy tion of any state, it excludes from this provision any Military Force, Without Prior Security Council Au- enforcement action taken under Chapter VII of the thorization?” Washington University Journal of Law & Charter. Chapter VII allows the UN Security Council Policy, vol. 5 (2001), pp. 58–59. to determine the existence of any threat to the peace, Glennon, Michael J. “The Fog of Law: Self-Defense, In- breach of the peace, or act of aggression, and to take herence, and Incoherence in Article 51 of the United such measures as the Security Council thinks appro- Nations Charter.” Harvard Journal of Law & Public priate to maintain or restore international peace. One Policy, vol. 24 (Spring 2002), pp. 540, 543. could argue that the Chapter VII exception permits the Security Council to take measures to correct any Graham, Thomas, Jr. “Is International Law Relevant to breach of the peace, regardless of whether the problem Arms Control?: National Self-Defense, International is internal to a state, or across international borders. Law, and Weapons of Mass Destruction.” Chicago Jour- However, the better interpretation supports the con- nal of International Law, vol. 4 (Spring 2003), p. 4. clusion that the Security Council may only determine Ignatieff, Michael. “Why are we in Iraq? (And Liberia? threats to international peace, for two reasons. First, And Afghanistan?).” The New York Times Magazine Article 2(7) deals with determining problems and tak- (September 7, 2003), sec. 6. ing measures to restore international peace—indicating Kagan, Robert. “Renewing U.S. Legitimacy.” Foreign Af- that the problems the Security Council must address fairs, vol. 83, no. 2 (2004), p. 77. are international in nature. Second, any interpretation allowing the Security Council to intervene within the Military and Paramilitary Activities (Nicar. v. U.S.), 1986 domestic jurisdiction of a state runs directly contrary I.C.J. 14, para. 1, 195, 228, 230 (June 27). to the Charter’s most important stated principle: the Paust, Jordan J. “Use of Armed Force against Terrorists sovereign equality of every member. The distinction in Afghanistan, Iraq, and Beyond.” is an important one, for again, if the Council can only Cornell International Law Journal, vol. 35 (Winter 2002), act in situations that threaten international peace, p. 536.

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Phillips, Guy R. “Rules of Engagement: A Primer.” Army Situation in Rwanda (31 May 1994), p. 11. U.N. Docu- Lawyer, vol. 4 (July 1993), p. 12. ments, S/1994/640. Plato. The Republic, Book VI. Translated by Allan Bloom, United Nations. Charter of the United Nation. June 26, 2nd Edition. Harper Collins Publishers, 1968. 1945. Schachter, Oscar. “International Law: The Right of States _____. Security Council. Resolution 487 (June 19, 1981). to Use Armed Force.” Michigan Law Review, vol. 82 _____. Security Council. Resolution 687 (April 3, 1991). (April/May 1984), pp. 1634-1635. _____. Security Council. Resolution 918 (May 17, 1994). Schmitt, Michael N. “Preemptive Strategies in Interna- tional Law.” Michigan Journal of International Law, vol. _____. Security Council. Resolution 1134 (November 23, 24 (Winter 2003), p. 530. 1997). Slaughter, Anne-Marie. “Good Reasons for Going Around _____. Security Council. Resolution 1199 (September 23, the UN; On the Brink of War.” International Herald 1998). Tribune (March 19, 2003), sec. A. _____. Security Council. Resolution 1373 (September 28, Sweden. Independent International Commission on 2001). Kosovo. “The Kosovo Report: Confl ict, International _____. Security Council. Resolution 1377 (November 12, Response, Lessons Learned” (2000), p.186. Online. 2001). Available: http://www.reliefweb.int/library/docu- _____. Security Council. Resolution 1378 (November 14, ments/thekosovoreport.htm. Accessed: November 2001). 27, 2004. _____. Security Council. Resolution 1383 (December 6, Teson, Fernando R. “Collective Humanitarian Interven- 2001). tion.” Michigan Journal of International Law, vol. 17 (Winter 1996), p. 364. _____. Security Council. Security Council President remarks (29 October 1997). U.N. Documents, S/ The Economist. “Rwanda, remembered.” (March 25, 2004), PRST/1997/49. p. 11. U.S. Department of State. Foreign Relations of the United United Kingdom. Letter from Daniel Webster, Secretary States: Diplomatic Papers, 1945. Washington, D.C.: of State of the United States, to Henry Government Printing Offi ce, 1967, pp. 707-709. S. Fox, Esq., Envoy Extraordinary and Minister Plenipoten- U.S. National Security Council. The National Security Strat- tiary of Her Britannic Majesty. April 24, 1841. Reprint. egy of the United States of American (September, 2002). British & Foreign State Papers, vol. 29, 1857. Online. Available: http://whitehouse.gov/nsc/nss. United Nations. Report of the Secretary-General on the pdf. Accessed: November 27, 2004.

LBJ JOURNAL OF PUBLIC AFFAIRS TEXAS SCHOOL FINANCE:

RETURN ON INVESTMENT ANALYSIS OF THE ROBIN HOOD ERA

EXAS HAS A LONG HISTORY of voicing strong support for public education while lagging nationally in education spend- ing. Even today, a recent public opinion survey showed Texans BY KEN FLIPPIN AND T 1 choosing education as the most important issue facing the state. KELLY SHANAHAN Texas, however, ranked 32nd nationally in per-student state expen- ditures for primary education during the 2002-2003 school year.2 The Ken Flippin received his bachelor’s state’s educational shortfalls can be blamed in part on the fact that degree in communication and gov- the Texas education fi nance system depends largely on revenue from ernment from Angelo State Uni- local property taxes. This system of funding K-12 education creates versity in 1995, and will receive a sizeable spending inequities between wealthy and poor districts.3 For master’s degree from the LBJ School nearly 30 years, in Texas courtrooms, legislative chambers, and politi- of Public Affairs in May 2005. His cal backrooms, policymakers have struggled over how to strengthen work experience includes blood and and equalize public education funding. Many of these debates center stem cell drive recruitment, politi- on competing defi nitions of an equitable education system. Over the cal campaign management, policy years, politicians, bureaucrats, and academics defi ned many different research and analysis with a Texas standards for educational equity, including spending per student, legislative committee, and adminis- educational inputs, dollars raised per penny of local tax effort, and trative management training with academic outcomes. No one standard ever won universal acceptance the Texas Education Agency. in Texas. This study offers a new perspective in the school fi nance debate by defi ning equity according to fi nancial inputs paid with taxes Kelly Shanahan is a gradu- by local communities, compared with outputs received through total ate student at the LBJ School of education expenditure in the local school districts. Public Affairs. She graduated with After briefl y tracing the historical evolution of Texas school fi nance honors in 1998 from the Univer- debate, this study examines a variety of weighted return-on-invest- sity of Colorado at Boulder with a ment ratios. Our research looks at how those ratios differ between bachelor’s degree in international districts grouped into three categories: low-wealth, medium-wealth, Spanish for the professions. Before and high-wealth. The four time intervals chosen demonstrate how coming to the LBJ School, she return on investment in each of these district types has changed in worked in Bolivia for the USAID accordance with legislative reforms to the Texas school fi nance sys- Democracy Initiatives Offi ce and tem. Additionally, we explore three new potential funding formulas in her home state of Colorado in by calculating the potential benefi ts or harms sustained by the three the areas of youth development and different district groups if these reforms were implemented. The three public health.

LBJ JOURNAL OF PUBLIC AFFAIRS 28 TEXAS SCHOOL FINANCE FALL 2004 potential formulas represent three of the school to maintain certain standards of equity within the fi nance alternatives that the state legislature is ex- school finance system. These equity standards pected to consider in the 2005 legislative session. are a result of nearly 20 years of litigation.”5 The Comparative analysis of all our data yields a Texas system of school finance has been repeat- more in-depth understanding of what it means to edly tweaked and rewritten through a continuous pay for education in the state of Texas. Through cycle of litigation and legislation. Despite this, the this analysis, our research seeks answers to several current system faces criticism and scrutiny from all fundamental questions: branches of the Texas government. The fi rst legal challenge to the system occurred • Who gets the most return on investment in in 1968, when Demetrio Rodriguez asserted in a education? federal lawsuit, Rodriguez v. San Antonio Indepen- dent School District, that the state’s funding system • Do taxpayers in poorer districts contribute violated the equal protection clause of the 14th a greater portion of their income than their Amendment.6 The U.S. District Court found that counterparts in wealthier districts? the system of fi nance depended too heavily on local property taxes. 7 However,However, inin 19731973 thethe U.S.U.S. SupremeSupreme • Do those same taxpayers contribute more or Court reversed the U.S. District Court’s position in less of their wealth than their more affl uent a 5-4 decision, ruling that education “is not among counterparts? the rights afforded explicit protection under our Federal Constitution.”8 The Texas Legislature was • Which system among the current and therefore under no obligation to change the system, proposed reform schemes creates the most but awareness of the disparity in school funding equitable return on investment? spurred House Bill 1126, which established what is presently referred to as “Tier 2” of the current In brief, this study aims to reframe the issue system.9 Tier 2 tried to make up for lower tax bases of educational equity by examining the return on by giving the poorest districts a higher return per investment from the Texas public education sys- penny of property tax effort.10 tem for taxpayers from a wide array of economic The next challenge came in 1983 when the circumstances and fi nancial perspectives. Mexican American Legal Defense and Education Fund filed Edgewood v. Bynum in state district court, claiming that the current system violated A BRIEF HISTORY OF the “equal protection” and the “effi cient system of SCHOOL FINANCE IN TEXAS public education” clauses of the state constitution.11 The plaintiffs cited large disparities in per-pupil In the United States, the federal government dele- spending between the state’s wealthiest and poorest gates most of the responsibility for funding primary school districts.12 Further, it noted that poorer school and secondary education to the states. The 1909 districts could tax their property at much higher Texas Constitution refl ects this policy by declaring rates and still fall far short of the funds raised in that “it shall be the duty of the Legislature of the more affl uent districts.13 State to establish and make suitable provisions for In 1985, the Texas Legislature responded by the support and maintenance of an effi cient system creating House Bill 72, which instituted many of free public schools.”4 Funding responsibility in school fi nance reforms still in existence today.14 The Texas is shared by local school districts, the state, legislation attempted to address the problems fac- and the federal government. Federal dollars, never ing poorer districts by adding new weights to the more than about 8 percent of total K-12 funding, system that increased funding for disadvantaged generally fund only a few specifi c program areas, students.15 However, H.B. 72 did not prevent the such as free lunch and breakfast programs for poor plaintiffs from proceeding with their case, and by children and special education. Most K-12 funding 1987 it had been reclassifi ed as Edgewood v. Kirby.16 comes out of a complex give-and-take scheme be- The district court ruled for the plaintiffs, but this tween the state and local school districts. According ruling was overturned by the appeals court.17 The to the Texas Legislative Budget Board, “the state’s Texas Supreme Court reversed the appeals court portion of public education funding decreases in decision and ruled that education was a funda- relation to growing local property values. . . . The mental right and that the “glaring disparities” in state’s . . . contribution is driven, in part, by efforts per-pupil spending violated the state constitution’s

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII TEXAS SCHOOL FINANCE 29 effi ciency clause.18 The court established a standard ats.29 First, the court pointed out that the inequity of “substantial equal access to similar revenues per of facilities funding still had the potential to be held pupil at similar levels of tax effort.” The legislature unconstitutional if more evidence was gathered, needed to craft a school fi nance system that could and it encouraged the legislature to fi nd new rem- meet this standard.19 edies.30 It also warned that the current system risked Lawmakers responded to the courts again in June future constitutional dangers if at some point a large of 1990 with Senate Bill 1, adding a facilities compo- number of school districts were forced to set their nent to the system. 20 The legislation increased state tax rate at or near the $1.50 maximum, which could funding for low-wealth districts on capital expen- be interpreted as a statewide property tax.31 In May ditures such as buildings and large maintenance 1999, the Texas Legislature made several changes to items, but failed to limit the ability of wealthier the school fi nance system in order to guarantee a districts to enrich their own schools to levels far greater yield per tax rate for all districts statewide beyond what the state could equalize.21 In January and increase assistance for school facilities.32 1991, the Texas Supreme Court rejected Senate Bill 1 Currently, another lawsuit challenging the on the basis that it did not school fi nance system is suffi ciently overhaul the working its way through 22 system. The court ruled For nearly 30 years, in Texas the Texas courts. This that “the system would lawsuit, West Orange be more effi cient simply courtrooms, legislative Cove Consolidated I.S.D. by utilizing the resources chambers, and political v. Nelson, was fi rst fi led in the wealthy districts” in 2001 by a group of and told the legislature backrooms, policymakers have high-wealth districts to take action immedi- struggled over how to strengthen that are subject to re- ately.23 The legislature capture.33 These districts then passed Senate Bill and equalize public education claim that the current 351, which created 188 funding. Many of these debates system is unconstitu- “county education dis- center on competing defi nitions tional because it creates tricts” and consolidated a statewide property the tax bases of several of an equitable education system. tax.34 However, several school districts in order low-wealth districts to create a more equal- later joined the suit, ized system.24 making two additional arguments. First, they In June of 1991 several wealthy districts chal- claimed that the state has failed to provide ad- lenged the new system in state district court, alleg- equate funding to meet the minimum needs of ing that it created a statewide property tax, which is students. Second, poorer districts claim that the banned under the Texas Constitution. The districts current system has drifted away from the equity argued that, because the law required all districts standards set forth in the previous Edgewood to set their rate at a minimum of 72 cents per $100 cases. In September 2004 District Court judge of appraised property value, the property tax fl oor John Dietz ruled in favor of the plaintiffs on all amounted to a statewide minimum tax.25 The leg- three counts, but by November 2004 Judge Dietz islature attempted to overcome this constitutional had not yet released his written ruling explaining challenge by placing the issue in front of the voters the grounds for his decision.35 Judge Dietz’s initial in May of 1993 as a proposed amendment.26 Voters remarks made it clear, however, that he did not rejected the amendment by a large margin, forcing fi nd recapture unconstitutional. Instead, he found legislators to devise a new school finance plan, that the state school fi nance system has evolved outlined in Senate Bill 7.27 to the point at which the current structure is The key component of the new system was the ineffi cient and underfunded. The state appealed recapture formula, popularly referred to as “Robin the decision, and lawmakers hope to address the Hood.” Recapture forces high-wealth districts to problem during the 2005 legislative session.36 send property tax revenue collected over a certain The 2003 legislative session, as well as a special capped amount to poorer districts, either directly session called in the spring of 2004, attempted to or through the state.28 This system was challenged reform school fi nance through several proposals in 1993, but the Texas Supreme Court upheld the to redesign the system, but none gained enough system as constitutional with two important cave- support to reach a fi nal vote.

LBJ JOURNAL OF PUBLIC AFFAIRS 30 TEXAS SCHOOL FINANCE FALL 2004

POTENTIAL SCHOOL FINANCE SOLUTIONS to represent different districts’ variance from the statewide norm. An important aspect of our study compares state Each of these districts and the state has four taxpayers’ historical and current return-on-invest- separate sets of data representing 1990, 1995, 2000, ment for education equations with the same equa- and 2002. Each data set has fi ve categories of data. tions resulting from new reforms in the near future. The fi rst category is demographic data . The demo- Obviously, the legislature could come up with a graphic data collected for each district in each year potentially infi nite number of ways to deal with are county population, average household income the current system’s taxing and revenue distribu- in the county, average residential property value in tion problems. However, it is reasonable to assume the school district, local property tax rate by school that the revenue distribution system will maintain district, school district student enrollment, average some type of minimum yield, relatively similar to daily attendance (ADA), and weighted average the current system. Major change will likely come daily attendance (WADA).38 The only missing piece in the area of taxation, and there are currently only of data is WADA for 1990. WADA for 1990 is miss- three major proposals under serious consideration. ing because the weighted system had not yet been Even though the legislature will likely pass some implemented at that time. sort of hybrid taxation system, much insight can The second data category is input data. These data still be gained by looking at how return-on-invest- refl ect the district’s total investment in the education ment equations change if one type of tax is used system. The data include property tax paid to the exclusively. Each alternative demonstrates how the district, sales tax paid to the state, and total taxes burden of each type of tax falls more heavily on one paid into the system, which is calculated by adding group than another. the sales and property tax together. 39 The sales tax The least likely of all the proposed reforms is a contribution to education is determined by taking the statewide income tax. This proposal has very lim- total sales tax and multiplying it by the percentage ited political support, but advocates point out that of state expenditure on education as a fraction of the it is a very stable and progressive way to tax.37 A state’s entire budget.40 The third category is outputs, state income tax that mirrors the national income representing the return portion of the equation for tax would be highly progressive compared to other districts. These data take property tax in the districts taxes, since it taxes higher incomes at higher rates. and subtract transfers out due to recapture in order to The next possibility is increasing the sales tax rate. create a data set for the property tax remaining.41 The This increase would be offset partially by a decrease other data sets are the state’s fi nancial contribution in property tax rates, but it would serve to increase to education and the federal government’s fi nancial the proportion of school funding provided by the contribution to education.42 state. The last possibility is a statewide property tax. The fourth data category is comparative analysis. Like the income tax, a statewide property tax may This represents all the calculations made using the be deducted from a taxpayer’s federal income tax data from the fi rst three categories. The fi rst compara- liability. However, many opponents point out that tive analysis data are the nonweighted data analyses. this tax can be somewhat regressive, since everyone Four population sets are used for these calculations. In must pay property tax on the place they live, either each case, total inputs and total outputs are divided directly (if they own the property) or through higher by four demographic numbers: population, enroll- rents passed on by their landlord . ment, ADA, and WADA. The resulting equations are the nonweighted return on investment, or total METHODOLOGY outputs divided by total inputs. The next two sets This study focuses on the return-on-investment of data are calculated in the same way, only with a (ROI) equation and the two weighted measures weighted factor included. This weighted factor is that change the equation, average property value added in two steps. First, the input measure is divided and average household income. These three equa- by the average property value in each county for each tions form the basis for our analysis. The seven year. Second, the output measure is divided by the school districts chosen were arranged into three statewide property value for each county for each categories: high property wealth, medium property year. The new output is divided by the new input, wealth, and low property wealth. Three medium- and the new result is the weighted measure. The wealth districts were chosen to show a range of weighted income measure uses this same process. The wealth distribution within this broad category. nonweighted input measures are divided by average The state of Texas also serves as a data set in order local household income, and the output measures are

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII TEXAS SCHOOL FINANCE 31 divided by the statewide average household income. porary fix to the state’s constitutional crises, with We created these comparative data sets for all four the express purpose of creating funding equity. The population categories. system has been widely criticized, and evidence sug- The final data category consists of alternative gests that signifi cant fl aws exist, but there is no doubt solutions analysis. We created three new scenarios, that recapture brought poorer districts closer to richer refl ecting the potential school fi nance solutions offered districts in terms of per-pupil expenditures. We took by state legislators. The data for 2002 are unchanged that question one step further and asked if the recap- in each county, with the exception of the amount of ture system also brought the ROI equation into greater input and output placed in each category. equity. As can be seen in Figure 1, recapture altered It is very important to note at this time, before we the ROI equation signifi cantly. In 1990, Plano, one of present our analysis, that the data collected for this the wealthiest districts in the state, had a higher ROI, study faced some limitations. There were two pri- 0.83, than La Joya, one of the poorest districts in the mary limitations to the data collection: geographic state, which had an ROI of 0.69. scope and time period. With regard to geographic The equation itself clearly shows the advantage scope, some of the data covered a county-wide area, that wealthier districts had under the old system while some covered a school district. Ideally, all of and gives credence to the many legal challenges that the data should represent information specifi c to altered the system over the last decade. The fi gure each school district. However, either this informa- shows a clear reversal of direction for both Plano tion is not calculated at the district level (in the case and La Joya in 1995, and that trend continues into of the U.S. Census data) or we lacked the time and 2002. Figure 2 adds all seven counties into the mix. resources to track this information down. For this Even though the change in ROI is less dramatic, reason, in many cases we used county-wide data with districts closer to the state average, it is still as a rough approximation for school district data. clear that recapture improved the ROI for poorer With respect to time period, some data were more districts at the cost of the wealthier districts. readily available because they fell on a census year The fi gure also makes clear that medium-wealth (in the case of 1990 and 2000), and some data were districts have been largely unaffected by the recap- more readily available because the information was ture system. In fact, they benefi t slightly in most from a more recent year (in the case of 2000 and cases, though not to the extent of poorer districts. 2002). Data from noncensus years at times had to be Simply put, recapture successfully brought the estimated, as did data from earlier years. However, broad range of wealth among districts closer to in spite of these limitations and imperfections, it is the court-ordered concept of “equity” in terms of our assertion that they do not invalidate our conclu- spending and return on investment. sions. On the contrary, the data allow for signifi cant insight into the ROI equation.

Figure 1 ANALYSIS Return on Investment: Plano v. La Joya Several interesting conclusions can be drawn from (Nonweighted and Property-weighted) analysis of the data. Since the data are limited to seven counties and some of the data collected have 1.6 potential for signifi cant error, it is important to look 1.4 at the fi ndings that yielded the clearest results and were least prone to data distortion. If this type of 1.2 data were collected on a statewide level, it could 1 serve an even wider range of purposes for gov- Dollars 0.8 ernments and education policy groups. Further, if 0.6 more precise data were collected over each year for 0.4 each district, school districts and the Texas Educa- tion Agency could use the data to design better 0.2 taxing and distribution systems. We focus on fi ve 0 important conclusions that can be easily drawn 1990 1995 2000 2002 from these data. Year “Robin Hood” largely equalized spending and return La Joya (nw) La Joya (income) on investment—Lawmakers intended the recapture Plano (nw) Plano (income) system, also known as “Robin Hood,” to be a tem-

LBJ JOURNAL OF PUBLIC AFFAIRS 32 TEXAS SCHOOL FINANCE FALL 2004

Figure 2 despite increasing recapture contributions to poorer Return on Investment districts. La Joya made slight gains, but did not come (Nonweighted) close to the medium-wealth districts. This fi gure helps us draw two important conclu- 2.5 sions. Recapture brought equity to the large number 2 of districts in the middle of the wealth spectrum. 1.5 The tiered system of finance that gave districts a guaranteed yield for their property tax effort Dollars 1 0.5 brought most districts to a similar ROI. In essence, districts received equal money for equal taxation 0 1990 1995 2000 2002 effort. Further, as these districts have moved toward Year the $1.50 cap, they have reached an even higher level of equity, but that equity may come at the cost Plano Llano of capacity. These districts have little or no room to San Angelo Wichita Falls increase their investment, and thus they will likely Lubbock La Joya run into major fi nancing problems as the cost of Killeen education continues to increase. This convergence could be considered both an accomplishment and a source of future crisis. It should also be noted here that Killeen appears Second, the fact that the two districts at the ex- to be an outlier throughout our fi gures. This is likely treme ends of the wealth spectrum did not see their due in large part to data collection errors resulting ROI equations merge leads to an equally valuable from the geographical scope problems discussed insight. Increasing the disbursement amount to previously. Killeen is a property-poor district that property-poor districts will not bring equity to the benefi ts heavily from recapture, but it would likely ROI equation. The poorest districts may have simi- be placed somewhere between La Joya and Lubbock lar expenditures per pupil, but they are contributing in most of our fi gures if the data were ideal. a disproportionate amount of their wealth, consid- Robin Hood only partially eliminated the ROI equity ering their property wealth relative to the rest of gap when accounting for property wealth—Wealthier the state. This phenomenon appears to result from schools clearly contribute more money to the system the regressive nature of the two taxes used to fund under recapture, but it is equally clear that they still the system. La Joya has a signifi cant disadvantage garner the best return on investment when their compared to the rest of the state when it comes to relative wealth is taken into consideration. The average household income and average property property-weighted function in this study allows wealth. Citizens in these poorer districts pay a us to ask a more nuanced return-on-investment much higher percentage of their income in both question: How much investment does an average property tax and sales tax than their richer coun- taxpayer contribute to the system, considering how terparts throughout the state. This means that they much wealth they have to draw from? Many of the poorest school districts have a small fraction of the Figure 3 property enjoyed by wealthier districts. In some Return on Investment: Property-weighted cases it would require tax rates of anywhere from 10 to 100 times the rate charged by the wealthiest 2.5 districts to raise the same amount of revenue. The 2 weighted factor takes this reality into consideration 1.5 and leads to greater insight about how much return

Dollars 1 the average citizen really gets for his investment. 0.5 Figure 3 looks at the same seven districts equation over the same time frame as Figure 2, but the num- 0 1990 1995 2000 2002 bers are now weighted by property value. The most Year striking feature of this fi gure is how in 1990 the ROI varied broadly compared to 2002, where there is a Plano Llano great amount of convergence in ROI, with the excep- San Angelo Wichita Falls tion of the wealthiest district, Plano, and the poorest Lubbock La Joya district, La Joya. Plano maintained its weighted ROI Killeen

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII TEXAS SCHOOL FINANCE 33

will continue to pay more of what they have even Figure 5 if the legislature implements a system of complete Alternative Financing Schemes: equity. Plano represents the same phenomenon in Return on Investment Comparisons reverse. Plano residents benefi t from the regressive (Nonweighted) natures of both the sales tax and the property tax, and their contributions to poorer districts do not 2.5 offset their wealth. These two conclusions show both the strengths and weaknesses of the recapture 2 system. Recapture brought ROI equity to the vast midwealth districts throughout the state, but it 1.5 failed to do the same for the districts at the extreme ends of the wealth spectrum. Dollars 1 Property wealth protects the richest school dis- tricts—This insight explains why the high-wealth 0.5 districts are not pulled down toward the norm in the property-weighted ROI equation. The wealthi- 0 est districts often complain that they should not be Plano San Wichita La Joya Angelo Falls forced to send their local money to other districts School Districts in order to meet the court-ordered mandates. These districts argue that they suffer unduly from the re- 2002 Reverse Recapture capture system. If this is true, how do these districts Sales Tax Income Tax continue to maintain the high property-weighted ROI as seen in Figure 3? There are two important explanations for this phenomenon. The fi rst has to constant. This means that the property wealth in- do with the regressivity of the tax system, as previ- creased at roughly the same rate as the amount ously discussed. The second involves the unique of recapture money the high-wealth districts sent nature of high property values. Property values to the poorer districts. These districts will likely generally increase over time in all districts, regard- continue to have this property-wealth immunity less of wealth level. However, high-value property as long as property taxes remain the centerpiece of increases at a faster rate than low-value property, school fi nance. As a source of fast-growing wealth, which offers high-wealth districts a measure of im- property tax revenue will continue to challenge the munity to the recapture system. equity equation for years to come. As can be seen in Figure 4, ROI decreases when Different funding schemes benefi t different districts— it is nonweighted or, to a lesser extent, when it is Figures 5 and 6 clearly illustrate how different weighted by income. However, when weighted for types of districts will benefi t in very different ways property value, the ROI actually remains relatively depending on which school fi nance system lawmak- ers ultimately choose. The wealthy districts clearly benefi t the most from a simple reversal of recapture. Figure 4 Return on Investment Comparison: Plano ISD However, it is equally clear that they also benefi t from a system relying largely on sales tax revenue. 1.8 Wealthy districts lose out only under an income 1.6 tax-reliant system. The reasons are obvious. The 1.4 current system and a reversal of recapture both are 1.2 systems based heavily on a regressive property tax. 1 The sales tax is regressive as well, and the benefi t to Dollars 0.8 wealthy districts is equally clear. Under a progres- 0.6 sive income tax system, the wealthiest districts con- 0.4 0.2 tribute the largest amount of tax revenue, thereby 0 decreasing their ROI significantly. Low-wealth 1990 1995 2000 2002 districts, on the other hand, benefi t from the same Year taxing schemes that hurt high-wealth districts. They benefi t from a property tax in both the weighted Nonweighted Income-weighted and nonweighted comparisons. They are injured Property-weighted the most by the sales tax because it is even more

LBJ JOURNAL OF PUBLIC AFFAIRS 34 TEXAS SCHOOL FINANCE FALL 2004

Figure 6 By examining ROI equations, we attempted to draw Alternative Financing Schemes: conclusions about the overall equity of the Texas Return on Investment school finance system. It is clear that recapture (Income-weighted) brought various school districts to a more equalized ROI equation. However, it failed to bring districts at 2 the extreme ends of the wealth spectrum together. 1.8 Further, it is clear that wealthy districts can retain 1.6 high weighted ROI ratios because they have prop- 1.4 erty wealth that protects them from the regressive 1.2 tax system currently in use. The poorest districts 1 make up for this defi cit by paying high percentages Dollars 0.8 of their incomes into regressive property and sales 0.6 taxes. The current system of funding clearly will not 0.4 change these realities anytime soon. 0.2 Finally, it is clear that different school fi nance 0 systems benefi t different types of districts, depend- Plano San Wichita La Joya Angelo Falls ing on the progressive or regressive natures of the School taxes used to fund education expenditures. The Texas Legislature must develop some new system 2002 Reverse Recapture that protects equity without limiting localities’ abil- Sales Tax Income Tax ity to raise taxes. However, given the state’s current political environment, the timeline for enacting such policy changes is anything but clear . regressive than the current property tax. Both the lLBJl current system and a reversal of Robin Hood are also harmful to these poor districts. The medium-wealth districts gain the same ben- NOTES efi t from the income tax, but to a lesser degree than the poorest districts. The other funding systems 1. Public Strategies, survey of 800 registered voters in have only minor effects on the ROI equations of Texas, Jan. 15-18, 2004. medium-wealth districts. Medium-wealth districts 2. National Education Association, Rankings and Esti- receive more revenue under some school fi nance mates: Ranking of the States 2003 and Estimates of School systems and less under others, but these differences Statistics 2004 (Washington, D.C., May 2004) p. 55. are not as dramatic as the differences for districts on Online. Available: http://www.nea.org/edstats/. the extreme ends of the wealth spectrum. This helps Accessed: November 19, 2004. explain why the equity debate has been framed as 3. Mark Yudof et al., Education Policy and the Law, 4th a clash between the rich and the poor. Medium- ed. (Belmont, CA: Wadsworth/Thomson, 2002), p. wealth school districts have only recently jumped 801. into the funding debate. They enter the debate now 4. Texas Constitution, art. VII, sec. 1. because many of these districts recently reached the 5. Texas Legislative Budget Board (LBB), Financing Public $1.50 property tax cap, but they have not yet taken Education in Texas Kindergarten through Grade 12, 3rd a strong stance on how to increase school fund- ed. (Austin, Tex., October, 2001). Online. Available: ing. Taxpayers in medium-wealth districts may be http://www.capitol.state.tx.us/psf/system.htm. unaware of how different school fi nance systems Accessed: October 26, 2004. would affect their districts. 6. San Antonio Independent School District v. Rodriguez (U.S. Sp. Ct.), 411 U.S. 1, 93 S.Ct. 1278 (1973). 7. Rodriguez v. San Antonio Independent School District CONCLUSION (U.S. District Ct.), 337F.Supp. 280 (W.D. Tex. 1971). 8. San Antonio I.S.D. v. Rodriguez (U.S. Sp. Ct.) . How to tax citizens in order to fund education is an 9. Texas House Bill 1126, 64th Legislature, regular ses- issue on the minds of many Texans as the 2005 leg- sion (1975). islative session gets underway. This study looked at the equity question at the center of the school 10. Matthew Bosworth, Courts As Catalysts: State Supreme Courts and Public School Finance Equity (Albany, NY: funding debate from a new, broader perspective.

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII TEXAS SCHOOL FINANCE 35

State University of New York Press, 2001), p. 61. sources. For county population, see U.S. Census Bu- 11. Edgewood Independent School District v. Kirby (Tx Sp reau, County Population Estimates. Online. Available: Ct) 777 S. W. 2d 391 (1989). www.census.gov/popest/estimates.php. Accessed: November 2, 2003. County data for 1990 and 2000 12. Ibid. comes from the census done in those years. The 1995 13. Ibid. and 2002 population data are estimates, given rates of growth and birth and death certifi cates in those coun- 14. Texas House Bill 72, 68th Legislature, regular session ties. For average household income by county, see U.S. (1985). Census Bureau, Texas QuickFacts. Online. Available: 15. LBB, Financing Public Education in Texas, p. 28. http://quickfacts.census.gov/qfd/states/48000. 16. Ibid. html. Accessed: November 2, 2003. Household income data also came from the Texas State Data Center and 17. Edgewood Independent School District v. Kirby (appeal), Offi ce of the State Demographer, Table 93: Median 761 S.W.2d 859 (1987). Household Income, Median Family Income and Per Capita 18. Edgewood v. Kirby (TX Sp Ct) (1991). Income for the State of Texas and Counties in Texas with 19. LBB, Financing Public Education in Texas, p. 28. Numeric and Percent Change, 1989 and 1999 - Ranked by 1999 Median Household Income. Online. Available: 20. Texas Senate Bill 1, 71st Legislative Session, 6th special txsdc.tamu.edu/data/census/2000/dp2_4/county/ session (1990). tab-093.txt. Accessed: November 14, 2003. For 1990 21. LBB, Financing Public Education in Texas, pp. 28-29. and 2000, the Census Bureau Web site provided county median values. However, these values actu- 22. Edgewood v. Kirby (TX Sp Ct) . ally represented 1989 and 1999 data. These data were 23. Ibid. used, however, as if they were 1990 and 2000 data. 24. Texas Senate Bill 351, 72nd Legislative Session, regular For 1995 and 2002, a rate of income increase was session (1991). calculated by using the 1989 and 1999 data, to esti- mate 1995 and 2002 averages. For average residential 25. Carrollton-Farmers Branch Independent School District property value in the school district, see U.S. Census v. Edgewood Independent School District (TX Sp Ct), 826 Bureau, 1990 Census: Population and Housing. Online. S.W.2d 489 (1992). Available: www.census.gov/main/www/cen1990. 26. LBB, Financing Public Education in Texas, p. 29. html. Accessed: November 2, 2003. See also, Texas 27. Texas Senate Bill 7, 73rd Legislative Session, regular Comptroller of Public Accounts, Property Tax Divi- session (1993). sion, Texas Property Tax Annual Report, for tax years 1995, 2000, and 2002 (Austin, Tex. 1995-2002). 1990 28. Ibid. data is county data taken from the Census; 1995, 2000, 29. Edgewood Independent School District v. Meno, 917 and 2002 data is school district data. For 1995, 2000, S.W.2d 717 (1995). and 2002, this average was calculated by taking the 30. Ibid. total property value of single family residents in the school district divided by the number of units in this 31. Ibid. category in that district. For local property tax rate 32. LBB, Financing Public Education in Texas, p. 30. by school district, see Texas Education Agency, TEA School Finance Web site, CPTD Tax Preliminary: Tax 33. Ibid., p. 31. Year 2002 and School Funding Year 2003-2004, and CPTD 34. West Orange Cove Independent School District v. Neeley, Tax Final: Tax Year 2000 and School Funding Year 2001- ruling from Judge John Dietz, 250th District Court for 2002. Online. Available: www.tea.state.tx.us/school. Travis County (Austin, Tex., September 15, 2004). fi nance/index.html. Accessed: November 10, 2003. 35. Terrence Sturtz, “‘Robin Hood’ System Reject- School district enrollment, Average Daily Attendance, ed,” Dallas Morning News (September 16, 2004). and Weighted Average Daily Attendance were pro- Online. Available: http://www.dallasnews. vided by email from Lisa Dawn-Fisher, Assistant com/sharedcontent/dws/dn/education/stories/ Director of Funding, Texas Education Agency, to Ken 091604dntswschoolfinance.11e568ba9.html. Ac- Flippin, November 14, 2003. For more information cessed: September 22, 2004. about the data used in this report or to see the data fi les and calculations used, please contact the LBJ 36. Ibid. Journal at [email protected]. 37. Center for Public Policy Priorities, The Best Choice for 39. Property tax data for districts given in the email from Paying for Public Education (January 2004). Online. Lisa-Dawn Fisher, November 14, 2003. For sales tax Available: http://www.cppp.org/products/policy- data, see Texas Comptroller of Public Accounts, analysis/incometax101.html. Accessed: November “Quarterly Sales Tax Historical Data Report” data- 19, 2004. base. Online. Available: http://www.window.state. 38. Data collected for this study came from multiple tx.us/taxinfo/sales/. Accessed: November 3, 2003.

LBJ JOURNAL OF PUBLIC AFFAIRS 36 TEXAS SCHOOL FINANCE FALL 2004

40. Texas Comptroller of Public Accounts, “Quarterly 091604dntswschoolfinance.11e568ba9.html. Ac- Sales Tax Historical Data Report” database. cessed: September 22, 2004. 41. Texas Education Agency, School Finance Web site, Texas Comptroller of Public Accounts. State of Texas An- Chapter 41 Districts & Partner Districts, 1993-1994 nual Cash Report, for 1990, 1995 and 2002 (Austin, through 2003-2004. Online. Available: http://www. Tex. 1990-2002). tea.state.tx.us/school.fi nance/index.html. Accessed: _____. “Quarterly Sales Tax Historical Data Report” data- November 12, 2003. See also Texas Comptroller of base. Online. Available: http://www.window.state. Public Accounts, Texas Property Tax Annual Report Tax tx.us/taxinfo/sales/. Accessed: November 3, 2003. Year 1990, Annual Report Tax Year 1995, Annual Report Tax Year 2000, Annual Report Tax Year 2002 and email _____. Property Tax Division, Texas Property Tax Annual from Lisa-Dawn Fisher, November 14, 2003. Report for tax years 1995, 2000 & 2002 (Austin, Tex. 1995-2002). Texas Constitution, art. VII, sec.1. 42. Texas Education Agency, School Finance Web site, 1989-90 Actual Financial Data and 1994-95 PEIMS Texas Education Agency, School Finance Web site. 1989- Fall Collection of 1994-95 Actual Financial Data. On- 1990 Actual Financial Data. Available: http://www. line. Available: http://www.tea.state.tx.us/school. tea.state.tx.us/school.fi nance/index.html. Online. fi nance/index.html. Accessed: November 10, 2003. Accessed: November 10, 2003. See also Texas Comptroller of Public Accounts, State _____. 1994-95 PEIMS Fall Collection of 1994-95 Actual of Texas Annual Cash Report for 1990, 1995 and 2002 Financial Data. Online. Available: http://www.tea. (Austin, Tex. 1990-2002). state.tx.us/school.fi nance/index.html. Online. Ac- cessed: November 10, 2003. _____. Chapter 41 Districts & Partner Districts, 1993-1994 WORKS CITED through 2003-2004. Online. Available: http://www. tea.state.tx.us/school.fi nance/index.html. Accessed: Bosworth, Matthew. Courts As Catalysts: State Supreme November 12, 2003. Courts and Public School Finance Equity. Albany, NY: _____. CPTD Tax Final: Tax Year 2000 and School Funding State University of New York Press (2001). Year 2001-2002. Online. Available: www.tea.state. Center for Public Policy Priorities. The Best Choice for Paying tx.us/school.fi nance/index.html.Accessed: Novem- for Public Education (January 2004). Online. Available: ber 10, 2003. http://www.cppp.org/products/policyanalysis/in- _____. CPTD Tax Preliminary: Tax Year 2002 and School cometax101.html. Accessed: November 19, 2004. Funding Year 2003-2004. Online. Available: www. Dawn-Fisher, Lisa, Assistant Director of Funding, Texas tea.state.tx.us/school.fi nance/index.html.Accessed: Education Agency. Email to Ken Flippin, November November 10, 2003. 14, 2003. Texas House Bill 72, 68th Legislature, regular session Edgewood Independent School District v. Kirby (appeal), 761 (1985). S.W.2d 859 (1987). Texas House Bill 1126, 64th Legislature, regular session Edgewood Independent School District v. Kirby (Tx Sp Ct), (1975). 777 S. W. 2d 391 (1989). Texas Legislative Budget Board. Financing Public Educa- Edgewood Independent School District v. Meno (TX Sp. Ct), tion in Texas Kindergarten through Grade 12, 3rd ed. 917 S.W.2d 717 (1995). (Austin, Tex., October, 2001). Online. Available: http://www.capitol.state.tx.us/psf/system.htm. National Education Association. Rankings and Estimates: Accessed: October 26, 2004. Ranking of the States 2003 and Estimates of School Sta- tistics 2004 (Washington, D.C., May 2004). Online. Texas Senate Bill 1, 71st Legislative Session, 6th special Available: http://www.nea.org/edstats/. Accessed session (1990). November 19, 2004. Texas Senate Bill 7, 73rd Legislative Session, regular ses- Public Strategies, survey of 800 registered voters in Texas, sion (1993). Jan. 15-18, 2004. Texas Senate Bill 351, 72nd Legislative Session, regular Rodriguez v. San Antonio Independent School District (U.S. session (1991). District Ct.), 337F.Supp. 280 (W.D. Tex. 1971). Texas State Data Center and Offi ce of the State Demogra- San Antonio Independent School District v. Rodriguez (U.S. pher. Table 93: Median Household Income, Median Family Sp. Ct.), 411 U.S. 1, 93 S.Ct. 1278 (1973). Income and Per Capita Income for the State of Texas and Counties in Texas with Numeric and Percent Change, Sturtz, Terrence. “‘Robin Hood’ System Rejected,” 1989 and 1999 - Ranked by 1999 Median Household Dallas Morning News, (September 16, 2004). Income. Online. Available: txsdc.tamu.edu/data/ Online. Available: http://www.dallasnews. census/2000/dp2_4/county/tab-093.txt. Accessed: com/sharedcontent/dws/dn/education/stories/ November 14, 2003.

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U.S. Census Bureau. 1990 Census: Population and Housing. facts.census.gov/qfd/states/48000.html. Accessed: Online. Available: www.census.gov/main/www/ November 2, 2003. cen1990.html. Accessed November 2, 2003. West Orange Cove Independent School District v. Neeley, ruling _____. County Population Estimates. Online. Available: from Judge John Dietz, 250th District Court for Travis www.census.gov/popest/estimates.php. Accessed: County (Austin, Tex., September 15, 2004). November 2, 2003. Yudof, Mark, et al. Education Policy and the Law, 4th ed. _____. Texas QuickFacts. Online. Available: http://quick- (Belmont, CA: Wadsworth/Thomson, 2002).

LBJ JOURNAL OF PUBLIC AFFAIRS PUBLIC-PRIVATE PARTNERSHIPS IN PARKLAND MANAGEMENT:

BUENOS AIRES, ARGENTINA

Unique mixtures [of partnerships] refl ect a metropolitan area’s individuality and its social and political mores: There is no perfectly replicable approach to public-private partnerships . . . each city must start its own course. Andrew Schwartz, in Public Parks, Private Partners: How Partnerships are Revitalizing Urban Parks

Government coalitions with nonprofi ts, neighborhood groups, and business communities have proven effective tools for administering BY KATHERINE CLARK public parkland worldwide. In the early 1980s, many municipal parks departments faced limited budgets, the changing needs of Katherine Clark is a master’s degree new generations of park users, and increased distrust of govern- candidate at the Maxwell School of ment by civil society, which led urban park administrators to rethink Citizenship and Public Affairs at their established role. By formally integrating the community’s key Syracuse University. She graduated players into park decision making, public-private partnerships from Clark University in Worcester, have augmented park budgets, volunteer bases, and management Massachusetts, with bachelor’s de- accountability, and have helped park design refl ect the needs of the grees in geography and art history. surrounding community. Most important, the mutual responsibility After teaching English for a year in engendered by public-private partnerships has facilitated a sense of Venezuela, Kate accepted a posi- ownership and respect by users—characteristics essential to a healthy tion with the New York City Parks park system. Department, where she served as In Argentina, public-private partnerships emerged as a new form librarian and director of the His- of parkland administration following the country’s 1976-1983 dicta- torical Signs Project. In 2002, she torship.1 Yet citizens’ deep distrust of the government and the state’s received a Fulbright Scholarship to hesitancy to promote public-private partnerships have rendered study park administration in Bue- unsuccessful most attempts to establish parkland collaborations. nos Aires, Argentina. Successful partnerships are fueled by trust. Park administrators must

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII PUBLIC-PRIVATE PARTNERSHIPS IN PARKLAND MANAGEMENT 39

adjust the boundaries of their authority to include government. Because parks are such a visible part the community in important decisions and their of public life, generating more partnerships would partners must respect the government’s role as the enable the government to openly display its interest primary decision maker for this public good. in redressing the lack of public confi dence. This paper examines the factors that have under- mined successful parkland partnerships in Buenos THE APATHETIC REACTION Aires by exploring the primary causes of citizen Apathetic park users exhibit neither ownership distrust, comparing the partnership models that of nor respect for their parks because they believe have been implemented, and identifying the steps that these spaces belong to a government that has the government should take to become an effective abused their trust.6 Citizens who are disconnected and willing partner.2 from their parks have encouraged others to mistreat the spaces, which has created low morale among park workers and has caused support groups and BACKGROUND potential donors (such as adopt-a-park sponsors) to view parks as futile causes. The City of Buenos Aires contains roughly 600 Almost every successful park has a strong com- hectares of parkland, which encompass 4.5 per- munity supporting it.7 OneOne ofof thethe fundamentalfundamental theo-theo- cent of its total surface area—a mere 1.9 square ries regarding partnerships holds that by involving meters of parkland per inhabitant.3 This scarcity the community in the life of a park, a sense of own- of recreational space, which has resulted in over- ership arises, which ensures proper utilization and use, coupled with the historic signifi cance of the cleanliness, which in turn brings more people into landscape architecture, makes effective parkland the park and creates a safer environment. In Buenos management essential.4 Aires, however, apathy has taken root as a reaction Parkland in Buenos Aires is currently managed to the military dictatorship and the privatization in fi ve ways: of public parkland. During the 1976-1983 dictator- ship, there was no democracy, nor any concept of • Sole government responsibility for park public space. The dictatorship eliminated one of maintenance and administration. the primary uses of parkland by making it illegal to congregate in parks and plazas.8 These empty • Government leasing of public land to pri- meeting points were a visible manifestation of vate companies to administer through for- what the dictatorship had robbed from Argentina’s profi t concessions.5 citizens—the freedom to assemble. Since the fall of the dictatorship, parks have been used extensively • Incorporating the assistance of neighbor- for leisure and recreation, and as a stage for dem- hood “friends groups” into traditional onstrations. The symbolism of empty public spaces government care. during the dictatorship, however, remains in the minds of many Argentines, and the sentiment that • An “adopt-a-park” initiative called the Pro- these spaces do not belong to anyone, instead of to gramma Padrinazgo (Padrino Program). everyone, prevails. A second reason for citizen apathy is the gov- • Long-term legal collaborations with non- ernment’s history of corruption. Argentina’s un- profi ts to administer individual parks such successful economic privatization program caused as La Reserva Ecologica del Costanera Sur (the tremendous resentment toward the government.9 In Ecological Reserve) and Parque Avellaneda Argentina, privatization is a charged word that for (Avellaneda Park). many citizens invokes what they perceived to be the impulsiveness of President Carlos Menem’s privati- zation agenda during the 1990s.10 The divestiture of TRUST BETWEEN CIVIL SOCIETY public companies, such as railroads, water facilities, AND GOVERNMENT telephone companies, and airlines, did not achieve the traditional privatization goals of increasing out- In Buenos Aires, citizen distrust of the government’s put and effi ciency, introducing market competition, intentions stemming from past abuses of power has increasing revenues, and lowering costs.11 Instead, generated two attitudes from park users, one that privatization severely damaged the relationship be- is apathetic and the other that is hostile toward the tween the state and its citizens because the process

LBJ JOURNAL OF PUBLIC AFFAIRS 40 PUBLIC-PRIVATE PARTNERSHIPS IN PARKLAND MANAGEMENT FALL 2004 was marred by scandals and political favoritism.12 tend to 70 percent of the city’s parks. Concerned The private companies exploited their contracts, citizens believe that Parks Department employees created monopolies, evaded regulation, instigated can complete the work that the private companies major layoffs, and caused prices to skyrocket.13 are doing, and that the government is contracting The goal of park partnerships is not to transfer out services that the department is capable of han- full control to the private and nonprofi t sectors, but dling, in order to transfer responsibility. to involve park communities in important decisions The maintenance controversy has negatively af- and to supplement government services. Yet during fected the public’s opinion of partnerships. There the 1990s, the government permitted and promoted is a misconception that partnerships are a form of private-sector domination of public spaces. Not outsourcing park administration and that that the only did it sell valuable parkland to private devel- government is shirking its administrative respon- opers, but it leased public land to private companies sibility. The government needs to convey to the to administer, seriously curbing public access.14 public that the goal of partnerships is not to evade Sports clubs, restaurants, and nightclubs, which its obligations to parks, but to supplement them. are permitted to make money in parks for private purposes, have been accused of illegally withhold- THE HOSTILE REACTION ing portions of the gains that are supposed to be The second reaction to government management directed into the city’s coffers.15 Although many of parkland is hostility, which is evinced by a leased areas retain their rec- constituency of park ad- reational character, they are vocates hostile toward the not available to the public at In Argentina . . . deep public sector. This hostil- no charge. Only 13 percent of distrust of the government ity is rooted in the history the 688 hectares of Parque Tres of park privatization. The de Febrero (February 3rd Park) and the state’s hesitancy “antigovernment” park- is completely open to public to promote public- land movement emerged access because of concessions in 1993 with the creation of and roadway construction.16 private partnerships have the Asemblea Permanante por If the public could access rendered unsuccessful los Espacios Verdes Urbanos all of the city’s parkland, most attempts to establish (Permanent Assembly for Buenos Aires would possess Urban Parkland—APEVU), 5 square meters of parkland parkland collaborations. a network of more than 50 per inhabitant. Yet exclud- neighborhood groups and ing parks that are leased to nonprofi ts with the stated private companies, there are only 1.9 square meters goal of bringing together different sectors of civil of parkland per inhabitant.17 TThishis ccontrastsontrasts ddramati-ramati- society to fi ght for the “defense, recuperation, and cally with statistics from 1904, when citizens en- amplifi cation of urban parkland.”22 joyed 7 square meters of parkland per inhabitant.18 APEVU has struggled to block the sale, conces- The government justifi ed the leasing of parkland sion, or illegal use of parkland by contributing by asserting that it could not properly care for the newspaper articles, participating in debates, and parks, an argument that has generated considerable sponsoring no fewer than ten citywide confer- controversy.19 ences.23 It has sued numerous political offi cials for Since 1984, the Buenos Aires Parks Depart- illegally selling parks and has helped augment the ment has delegated park maintenance to private city’s parkland by more than 50 hectares.24 The companies.20 This controversial arrangement has group continually lobbies the government for more, negatively affected popular attitudes toward the better-quality parks, focusing its attention on the government and its ability to administer parks. 350 hectares of national land currently in disuse in When the city privatized maintenance, the Parks Buenos Aires. Department spokesman explained: “For this work, Without proof that Buenos Aires can care for and private companies have the equipment that we do maintain its existing parks, it is diffi cult to convince not have, like trucks, lawnmowers, and carts.”21 politicians and citizens to fi ght to acquire more land. The maintenance staff has decreased from 2,900 APEVU seeks more public-private parkland part- employees in 1984 to 1,207 in 2002. Today, almost nerships, but its underlying motive is to monitor three-quarters of the Parks Department budget is government, not work with it.25 Setbacks, such as devoted to salaries, yet three outside companies the rejection of proposed legislation to create more

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII PUBLIC-PRIVATE PARTNERSHIPS IN PARKLAND MANAGEMENT 41 partnerships, have made joint administration seem istrators to control their park’s fi nancial resources, unobtainable. APEVU’s unwillingness to compro- assume more management accountability, and mise and work with, not against, the public sector distance themselves from the Parks Department’s has led the government to deny it a representative bureaucracy and corruption.28 voice in important parkland decisions, which has fueled an army of frustrated citizens and further MANAGEMENT COUNCIL MODEL: impeded a constructive dialogue between the public THE ECOLOGICAL RESERVE and private sectors. In 1986, the city initiated its fi rst partnership model for the Ecological Reserve, the largest and most vis- ited park in the city. The reserve director, a govern- PARTNERSHIPS IN BUENOS AIRES ment employee, manages the park in conjunction with a private partner called the management coun- Three parkland-management partnership models cil.29 The management council consists of volunteer exist in Buenos Aires: the Ecological Reserve, the representatives from the University of Buenos Aires Padrino Program, and Avellaneda Park. Although biology department and three nonprofi ts, Amigos very different in structure, these collaborations de la Tierra (Friends of the Earth), Aves Argentinas have one thing in common: they are based on legal (Argentine Birds), and Fundacion Vida Silvestre contracts and exist as permanent entities within the (Wildlife Foundation). Each of the council members government’s structure. In most cities around the was instrumental in the partnership’s formation. world, partnerships do not base their collaborations The collaboration emerged three years after the fall on formal contracts, but on trust. If legal legitimacy of the military dictatorship, during a time when is the precedent in Buenos Aires for a partnership nonprofi t enthusiasm for, and participation in, the to exist, why is there not a greater dedication to democratic restructuring of the country was at its passing bills that emulate and improve on these height.30 The collaboration served as one of many models? symbolic gestures by the government that democ- The idea of creating legal documents to ensure racy had returned to Argentina. continuity was proposed by the nonprofi t partners Despite this auspicious beginning, the govern- when the partnerships were created. Because the ment and private partners have lacked coherency collaborations were created under an administra- as an administrative body. There is no set policy tion that stood to benefi t immediately from their for group meetings, attendance is sporadic, and formation, the private/nonprofit partners were decisions are rarely consensual.31 The partnership skeptical that subsequent administrations would members lack communal offi ce space, and no mon- share the same commitment. The duration of part- ey from the city budget is allocated specifi cally to nerships can be attributed to legal status, yet the partnership efforts. These factors have contributed existence of a formal contract does not necessarily to low work morale and lack of commitment, which imply partnership success, nor does it remedy the has limited the council’s ability to lead. The partners distrust that has undermined collaborations. In fact, pursue self-interested agendas, motivated by the the legal nature of partnerships has thwarted their objectives of their own organizations, and rarely proliferation; it is diffi cult to pass a partnership bill, consult or collaborate with each other, which has and without legal status, the barriers to creating resulted in shifting goals and undefi ned focus. new partnerships are formidable. This dissonance largely revolves around a lack of The Secretary of the Environment oversees the communal trust between the management council Parks Department, which is responsible for the members. In addition, the government does not majority of parkland. Other parks belong to a spe- trust the partnership’s potential, causing private cial category called fuera de nivel (out-of-structure), partners to conclude that the government is an ab- which is also overseen by the secretary.26 The three sent collaborator. Concerned community members partnerships were once part of this special group, and other nonprofi ts believe that the council no but only the Ecological Reserve remains today. A longer refl ects the partnership’s original intent to combination of government budget constraints represent civil society and that it ignores the desire and power confl icts caused Avellaneda Park and of citizens to be included in important decisions the Padrino Program to be placed under the direct because of a fear that the community’s inclusion supervision of the Parks Department.27 Each of the will result in more disorganization and will be a partnerships strives to be out-of-structure because threat to its control.32 The management council, out-of-structure status would permit park admin- however, must understand the vision of both park

LBJ JOURNAL OF PUBLIC AFFAIRS 42 PUBLIC-PRIVATE PARTNERSHIPS IN PARKLAND MANAGEMENT FALL 2004 administrators and park users to successfully gov- an advertisement, because maintaining a park in ern the reserve. Buenos Aires is less expensive than advertising by The city legislature recognized this issue and billboard.36 Citizens believe that the donation signs passed a bill in March 2001 to change the composi- are a form of privatizing public spaces and that the tion of the management council.33 The goal of the advertising advantage encourages donors to over- new structure was to eliminate the four permanent look the parks most in need, such as those in poorer positions and instead incorporate three rotating neighborhoods.37 CitizensCitizens alsoalso believebelieve thatthat thethe ParksParks positions that would be democratically fi lled every Department has a budget suffi cient to maintain the three years from a registry of environmental non- adopted parks without transferring responsibility profi ts. To date, the law has not been implemented. to the private sector. Because leadership continuity and project momen- The Parks Department has realized signifi- tum are essential features for a successful admin- cant savings as a result of the sponsorships, istration, the government’s hesitancy to enact the but the money has not been redirected toward law appears prudent. Consistent and stable private improving failing parks; in fact, there is no re- partners are necessary to compensate for the high cord of how it is reinvested.38 The government turnover of politically appointed reserve directors. has also given padrinos the privilege to use However, the fervent lobbying of members of civil their adopted parks privately, curbing public society to propose a new bill, which was passed but access.39 Because many adopted parks are less not enacted, points to a serious problem in achiev- than adequately cared for, observers suspect ing consensus on partnerships. The government that padrinos are pocketing money through ar- fears the inclusion of civil society and the ceding of rangements with maintenance companies. control to it, but so does the management council. The three-year contracts prevent the program Lack of trust among the government, nonprofi ts, from facilitating long-term community commit- and citizens has made this collaboration less than ment. Although there have been 40 steady sponsors optimal. since the program’s inception, the majority of padri- no adoptions have been short-lived.40 Many of the ADOPT-A-PARK MODEL: THE PADRINO PROGRAM padrinos have halted their contracts or decided not In 1989, the city initiated an adopt-a-park program to renew their sponsorship. Sponsors believe that called the Padrino Program.34 Its creation mirrored citizen mistreatment of parks negates the work they the spirit of Argentina’s privatization policies by have put into the spaces and that the government looking toward the private sector to relieve govern- is not supportive of their efforts because it does not ment fi nancial diffi culties. Through a three-year educate citizens on how to properly use and respect contract, private partners pay landscape compa- their parks.41 Keeping a park in an acceptable state nies for park upkeep or do the work themselves is severely deterred by government bureaucracy; in exchange for the placement of a sign within the the processes to simply fi x amenities or respond to park recognizing their donations. To date, roughly dangerous situations can be tortuous.42 In addition, 80 of the 590 plazas and small parcels of parkland in order become a padrino, the sponsor must be or are sponsored. While padrinos include nonprofi ts, possess a foundation, which places small neighbor- embassies, and individuals, the overwhelming ma- hood groups at a disadvantage. jority are businesses. This model is the only instance of a government-facilitated partnership; all other PARTNER ADMINISTRATION MODEL: AVELLANEDA PARK attempts at collaborations have been initiated by In 1996, a new partnership model was created for the nonprofi t sector. Avellaneda Park called partner administration.43 It Because the padrino model is very visible, it is was instigated by the nonprofi t Centro de Estudios the most criticized of the three partnership models. Sociales y Actividades para Parque Avellaneda (Center By becoming sponsors, businesses have improved for Social Studies and Activities at Avellaneda parkland, primarily in the northern, more-affl uent Park—CESAV) with the help of the Facultad Latino- areas of the city, where most of their clients live.35 americano de Ciencias Sociales (the Latin American So- The southern part of the city, however, has few cial Sciences Faculty—FLACSO). This partnership sponsored parks, and the government makes no ef- emerged contemporaneously with Buenos Aires’s fort to promote their adoption. While an advantage 1994 constitution and refl ects that document’s key of this partnership is that it is transparent (donors features of decentralization and citizen participation pay private fi rms, not the “distrusted” government), in public decision making. The coalition consists of a the primary motivation for adopting a park is as government-employed director, the director’s staff,

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and a network of volunteers. They administer the PARTNERSHIPS AND THE GOVERNMENT parkland through a complex structure that includes committees dedicated to management, culture, CONSIDERATIONS neighborhood networks, regional strategy, ecology, As the primary caretaker of public goods, the gov- sports, and history.44 ernment must be open to and enthusiastic about Since the partnership began, there have been partnerships in order for collaborations to succeed. constant power struggles between the volunteers As John M. Bryson argues in Leadership for the Com- and their government partners. The collaboration mon Good: Tackling Public Problems in a Shared-Power was created during the administration of a former World: “[I]n order to marshal the legitimacy, power, vice-mayor, Enrique Olivera, whose ancestors authority, and knowledge required to tackle any owned the property. One of the primary reasons major public issue, organizations and institutions for his administration’s insistence on rejuvenating that share objectives must also partly share resourc- the park through a public-private collaboration es and authority in order to achieve their collective was his personal interest in the park’s well-being.45 goals.”48 Understanding the benefi ts of cooperation Volunteers believe that subsequent administrations and sharing resources will enable the government have not supported the part- to assume an active role in nership and have wanted to initiating partnerships. phase it out. Keeping a park in an In each of the partnership Since 1998, the public models, the private partners advocate for the environ- acceptable state is severely perceive the government to ment has made several at- deterred by government be an absent partner, which tempts to pass a bill to create bureaucracy; the processes is clearly inconsistent with more partner-administration the idea of collaborative partnerships.46 Twenty-nine to simply fi x amenities support. A remedy for this community groups, look- or respond to dangerous situation would be to cre- ing to Avellaneda Park as ate an internal mechanism, a model to manage their situations can be tortuous. such as a division within parks more effi ciently, cre- the Parks Department or the ated master plans geared offi ce of the Secretary of the specifi cally toward this type of administration. Yet Environment, dedicated to partnerships. A partner- the city legislature has not passed the bill because ship division would prove that the government is it believes that the model is ineffi cient and fears a mature and willing partner and that partnerships that empowering the community will lead to the are part of the government’s permanent policy. government’s loss of parkland control. In 2003, the Such a division would not only enable the govern- partnership’s independent, out-of-structure status ment to be in the position to facilitate and monitor was rescinded and the park was placed under the collaborations, but would provide support for exist- supervision of the Parks Department. ing partnerships. This would lead to dialogue about Another source of contention concerns employ- future partnership models and seriously address ment. Within the past few years, select volun- problems involving partnership bills and laws. teers have become government-paid employees. The key role in the structure of a parkland Neighborhood participation has waned since this partnership is the park administrator or director, new policy was implemented because the new a government employee whose focus is geared employees have discouraged help from other vol- toward a large, individual park. (In areas with unteers, believing their work is suffi cient. Confl icts smaller parks, a park administrator might be in during the selection process led many volunteers charge of a district.) The park administrator in- to conclude that the decisions were arbitrary and creases not only management accountability and biased.47 As with the Ecological Reserve, there are effi ciency, but the likelihood that private partners no public funds dedicated to the partnership itself, will work with a park, because park administra- which, coupled with the loss of an autonomous tors are the link between the government and budget, makes projects diffi cult to implement and the community and spur collaborations. In other has caused volunteers to conclude that their efforts countries, government-employed park adminis- are unrecognized or unappreciated. trators become part of the structure of the private partner. In New York City, for example, the park administrator for Central Park is the senior vice

LBJ JOURNAL OF PUBLIC AFFAIRS 44 PUBLIC-PRIVATE PARTNERSHIPS IN PARKLAND MANAGEMENT FALL 2004 president for operations and capital projects for eventually be updated. The Padrino Program the Central Park Conservancy. In Prospect Park, creates three-year plans for each park and plaza the park administrator is the president of the that is adopted. Although they are not long-term Prospect Park Alliance. This has increased com- plans and address only maintenance issues, the munication between the two partners and created plans provide structure. The most comprehensive project and leadership continuity. and successful document is the master plan for The park administrators at Avellaneda Park Avellaneda Park.53 It was created at the start of and the Ecological Reserve have been able to the partnership after numerous participatory move through the government’s bureaucracy, yet workshops with representatives of the govern- are not permanent parts of the private partners’ ment, neighborhoods, and nonprofits. Other structure, which has caused disparities in decision parks in Buenos Aires do not have formal master making and partnership unity. plans, but numerous commu- The park administrator at Avel- nity groups have informally laneda Park, however, is notable The duration of authored plans that could be for his efforts to insert himself offi cially implemented after a into the community, which has partnerships can legal partnership is created. facilitated communication be- be attributed to Volunteerism and fundrais- tween his staff and park users.49 ing, which lead to partnership Despite the success of citywide legal status, yet the formation in the United States, alliances such as APEVU, there existence of a formal could benefi t parks in Buenos is fragmentation among the spe- contract does not Aires. Volunteerism has the po- cial-interest community groups, tential to enhance park upkeep, which the government has failed necessarily imply provide citizens the opportunity to mediate.50 Working on a dai- partnership success, for recreation, and facilitate a ly basis with the community, sense of ownership. In Buenos park administrators can assume nor does it remedy Aires, there is no set govern- stronger leadership roles and the distrust that ment policy toward volunteer transform disorganization into work, but the government has unity. has undermined not encouraged it.54 The city is collaborations. unwilling to pay for insurance PARTNERSHIP BENEFITS for volunteers, and unions op- By taking the initial steps to pose partnerships and volun- form public-private collaborations, the govern- teerism.55 Volunteer efforts that do exist are either ment can benefi t from the results typically asso- organized by nonprofi ts or carried out by concerned ciated with partnerships. First, private partners citizens without proper guidance. Communicating are not subject to the high political turnover of with park advocates through the park administra- government employees and can offer continu- tor and the proposed partnership division will ity.51 The Ecological Reserve, for example, has help the government to position itself to organize had five different directors in the past seven a strong volunteer base and “find, connect, and years, but the management council has provided mobilize the gifts and resources of the people who stability to train new directors and ensure project live there.”56 momentum. Fundraising is essential to partnership success Second, the government can profi t from insti- because it provides resources for the coalitions tutionalized park master plans. When a partner- to function and endure. Donations increase park ship is initiated, the fi rst step is for the partners programming and amenities and can support pri- to assemble a participatory and comprehensive vate-partner staff salaries. Except for the Padrino master plan. Master plans create offi cial, long- Program, fundraising is not a priority of any of the term vision and planning. The Ecological Reserve, partnerships in Buenos Aires because citizens be- Avellaneda Park, and the padrino-sponsored lieve they should not pay for basic public services. parks, because of their partnership status, are the Yet fundraising for parks is intended not to replace only parks in Buenos Aires with offi cial master government funds, but to supplement them.57 Be- plans.52 Although the Ecological Reserve’s plan is cause the government cannot receive direct contri- limited and outdated, the document’s existence butions for individual parks, nonprofi ts can help is part of the park’s permanent policy, and will by receiving and distributing funds.

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CONCLUSION see Sonia Berjman, Las Plazas y Parques de Buenos Aires: La Obra de las Paisajistas Franceses 1860-1930 (City of Urban parkland is an important platform for com- Buenos Aires: Argentina, 1998). munication between citizens and their government. 5. This is an old practice that started in 1875 with the The state of public-private partnerships in any given leasing of public land to the Argentine Hippodrome city serves as a fundamental reference point that Society. Although leasing parkland continued throughout the years, it was minimal in comparison citizens and their government can use to gauge the to that of the 1990s. Among the many examples to- success or failure of their relationship. Through day are the national airport, the Buenos Aires Lawn analyzing collaborations in Buenos Aires, it is ap- Tennis Club, the Japanese Gardens, and the City Zoo. parent that the struggle to jointly administer parks Diego Rosemberg and Marcelo Massarinc, “Palermo represents a microcosm of a larger, national struggle Perdio mas de 300 Hectareas de Parques Publicos,” to repair the historically tumultuous relationship La Magna, December 15, 1993. between the state and its citizens. 6. Surveys indicate that in the last fi ve years, seven to As Luis Alberto Romero noted in A History of eight out of every ten Argentines do not feel confi - Argentina in the Twentieth Century: “[T]he public dent in the country’s politicians, who they believe interest is disappearing as a concept of the common represent their own interests and not those of the responsibility, one that is built and upheld by soli- people. Liliana De Riz, “La Politica como Proyecto darity with one’s fellow citizens. . . . With the idea de Futuro,” La Nacion, May 22, 2001. For a discussion of political corruption, see Luis Alberto Romero, A of social citizenship in tatters, and social equality History of Argentina in the Twentieth Century (translated increasingly impaired, the new society encourages by James P. Brennan, Pennsylvania State University few practices beyond electoral participation with Press, Pennsylvania, 2002), pp. 308-314, 324. which to sustain democracy.”58 Citizen and gov- 7. Andrew Schwartz, “Parks as Places: What’s on our ernment efforts to create public-private parkland Bookshelves,” Places, A Forum of Environmental Design, partnerships should be encouraged in Buenos Aires. vol. 15, no. 3, p. 75 (study executed by Projects for Institutionalized collaboration, once it is recognized Public Spaces). as a mechanism to foster trust and communication, 8. During the dictatorship, the Parks Department cre- will enable public spaces to serve as a visual testi- ated more plazas than during the current democracy. mony to democratic exchange. Landscaped with cement, the plazas were not user- lLBJl friendly; they functioned as a means to convey to the citizenry that they were being cared for, yet with restrictions. Interview with Fabio Marquez, Assistant NOTES Parks Department Commissioner. 9. Romero, A History of Argentina in the Twentieth Century, 1. The 1976 military coup ousted Isabel Perón, Juan pp. 314, 324. Perón’s wife. Jorge Videla served as the fi rst “presi- 10. Mellissa H. Birch and Jerry Haar, “Privatization in dent” during the dictatorship, which lasted until 1986. the Americans: The Challenge of Adjustment,” in It is estimated that 30,000 leftist activists, workers, The Impact of Privatization in the Americas (University and intellectuals were killed. Roughly 10,000 law- of Miami: North South Center Press, 2000), p. 2. yers, teachers, and students were also victims of the See also Pablo Gerchunoff and Guillermo Canovas, military and paramilitary secret police. “Privatization: The Argentine Experience,” in Bigger 2. This research was conducted from November 2002 to Economies, Smaller Governments: Privatization in Latin August 2003 on a Fulbright Scholarship in Argentina. America, edited by William Glade with Rossana Co- The majority of information in this report comes rona (Boulder: Westview Press, 1996), pp. 193-194. from more than 50 interviews conducted in Buenos 11. Birch and Haar, “Privatization,” p. 3. Aires from October 2002 to September 2003. Most of the scarce literature on partnerships in Buenos 12. Glade, Bigger Economies, Smaller Governments, p. Aires comes from Facultad Latinoamericana de Ciencias 197. Sociales (www.fl acso.org.ar), which was essential to 13. Birch and Haar, “Privatization,” p. 227. the creation of the Avellanda Park partnership. 14. Parkland is generally leased for 20-year terms; how- 3. The 600 hectares include 28 mid- to large-sized ever, the time allotted has not been respected by most parks, 14 gardens, 163 plazas, 289 plazoletas, and 140 private companies, and many still exist after their boulevards. General Information, “Sólo Quedan 160 leases have expired (Rosemberg and Massarinc). Guardianes en las Plazas de la Ciudad,” La Nacion, 15. Interview with Antonio Brailovsky, Public Advocate June 9, 2003. for the Environment, December 19, 2003. 4. For a historical discussion of Buenos Aires’s parks,

LBJ JOURNAL OF PUBLIC AFFAIRS 46 PUBLIC-PRIVATE PARTNERSHIPS IN PARKLAND MANAGEMENT FALL 2004

16. Rosemberg and Massarinc. 33. Ley 560—March 21, 2001: Modify Article 3 of Orde- 17. In 1995, when the majority of leasing took place, 38 nanza N° 45.676, B.M. N° 19.239. percent of the city’s parkland was publicly accessible 34. Ordenanza N.43.794—September 14, 1989. and 23 percent of all parkland was on land that one 35. The most exceptional example is the Rose Garden in had to pay a fee to enter. Alicia E. Toribio, “Los Espa- February 3rd Park, adopted by YPF-Repsol. cios Verdes de Buenos Aires—Moneda de Cambio o Patrimonio de Todos?” Series: Medio Ambiente No-3, 36. Interview with Ana Maria Castelli, marketing direc- City of Buenos Aires, Buenos Aires, Argentina, 1995; tor for Aguas Argentinas, the padrino of the Boat and p. 16. For a chart of all leased parkland, see Toribio, Rose Garden Lakes in February 3rd Park, November p. 21. See also Asociacion para Espacios Verdes Ur- 5, 2002. banas (APEVU), Las Tierras Públicas Del AMBA: Recurso 37. Asiduos Concurrentes de la Plaza Campana de Desi- Urbano No Renovable El Movimiento Vecinal En El Área erto, “No a los Padrinazgos en los Espacios Verdes,” Metropolitana Buenos Aires (2003), p. 2. 5tas. Jornadas por los Espacios Verdes Urbanos (Buenos 18. Ibid. Aires, Argentina, August 28-30, 1997). 19. Ibid., p. 1. 38. There are currently 80 hectares of adopted parkland. Each hectare costs the department 230 pesos per month 20. To date, private companies care for 502 plazas, 28 to maintain. Altogether, 220,800 pesos are saved on parks, 13 gardens, 140 streets, and the Botanic Garden. average per year. Interviews with Juan Comerio, Victoria Tatti, “No Pueden 1.207 Personas Mantener Padrinazgo Director, and Antonio Brailovsky, public Todas las Plazas?,” La Nacion (November 29, 2002). advocate for the environment. 21. The Parks Department has 167 administrative em- 39. Rosemberg and Massarinc, “Buenos Aires Tiene un ployees, 249 park maintenance workers, 221 botanic Tercio de los Espacios Publicos Necesarios,” La Magna technicians, 252 tree specialists, 92 general service (November 24, 1993). employees, 42 art and monument workers, and six padrino administrators. In addition, 151 department 40. Interview with Juan Comerio, Padrinazgo Director, employees are in charge of the maintenance of 30 November 4–8, December 23, 2002. percent of the city’s parkland and the three private 41. Interview with representative from Groupo SPM, pa- companies are in charge of the other 70 percent drino of Plaza Rodreguez Pena, December 29, 2002. (Tatti). 42. Most entities within parks are under the jurisdiction 22. APEVU, p. 3. of other departments. For example, park lampposts 23. For a detailed account, see APEVU, p. 1. and other lighting issues are the responsibility of the Lighting Department, and pathways within and sur- 24. APEVU, p. 3. rounding parks are the responsibility of the Public 25. Citizen mobilization as a result of distrust in the gov- Works Department. Regulations related to cleanliness ernment can be seen in many other facets of Argentine and dog walking are created by the Department of political life; see Romero, p. 349. Urban Hygiene, permits for events are controlled by 26. For a chart on the structure of the City of Buenos the Culture Department, and landscape maintenance, Aires government, see www.buenosaires.gov.ar. street trees, and monuments are the responsibility of the Parks Department. Noticias Urbanas, July 30, 27. General Information Section, “Controversia por el 2002. Parque Avellaneda,” Clarin (December 19, 2001). 43. Ordenanza 48.892/95 art. 12, 1995. 28. APEVU, p. 1. 44. For a detailed explanation of each group, see the 29. Ordenanza N.45.676—June 5, 1986. Jornadas de Actualizacion del Plan de Manejo del Parque 30. Oscar Grillo, “Las Asociaciones Vecinales en Buenos Avellaneda (Buenos Aires, Argentina, 2000). Aires: Restricciones Sistematicas y Experiencias 45. Interview with Fabio Marquez, Assistant Parks De- Concretas,” in Publico y Privado: Las Organizaciones partment Commissioner. Sin Fin de Lucro en la Argentina, ed. Andres Thomp- son (Buenos Aires, Argentina: UNICEF, 1995), p. 46. Ley de Regimen de Gestion, Coordinacion y Partici- 131. See also Lester M. Salamon, Partners in Public pacion de los Espacios Verdes—1998. Service: Government-Nonprofi t Relations in the Modern 47. Marquez interview. Welfare State (Baltimore and London: Johns Hopkins 48. John M. Bryson and Barbara C. Crosby, Leadership for University Press, 1995), p. 244. the Common Good: Tackling Public Problems in a Shared- 31. Management Council Meeting interviews. Power World (San Francisco: Jossey-Bass Publishers, 32. Rudolfo Domnanovichd, in collaboration with 1992), p. 4. AVINA, “Diagnostico de Usario Visitantes de la 49. The Avellaneda Park Director is also the director of Reserva Ecologica de la Costanera Sur” (Buenos Aires, the local government board. Argentina, 2002). 50. Marquez interview.

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51. In discussing the scarcity of stable and dedicated Asociacion para Espacios Verdes Urbanas. Las Tierras politicians in Argentina, Felipe de la Balze states that Públicas del AMBA: Recurso Urbano No Renovable el in comparison to France, where in the 2001 adminis- Movimiento Vecinal en el Área Metropolitana Buenos tration change 250 publicly appointed offi cials were Aires. Buenos Aires, Argentina: AEVU, 2003. replaced, after the 2001 mayoral election in Matanza, de la Balaze, Filipe. “Nos Faltan Funcionarios Publicos a suburb of Buenos Aires, almost 3,000 offi cials were de Calidad.” La Nacion (October 12, 2003). replaced. In addition, politicians are chosen by politi- cal favoritism and not for their ideology. Felipe de la Balboa, Francisco. Fundacion Vida Silvestre representa- Balze, “Nos Faltan Funcionarios Publicos de Calidad,” tive to the Ecological Reserve Management Council. Clarin (October 12, 2003). Interview, February 20, 2002. 52. Interview with Lorena Gill, assistant to the Secretary Bell Fiore, Elena. Co-president of Por La Reserva, a non- of the Environment, February 27 and May 5, 2003. profi t dedicated to the Ecological Reserve. Interview, February 16, 2003. 53. See Plan de Manejo Parque Avellaneda. Online. Available: http://168.83.61.132/areasyproyectos/ Berjman, Sonia. Urban park historian. Email to Katherine proyectos/pppyga/pdf/7.pdf Clark, October 18, 2002. 54. One instance of government interest in volunteerism is _____. Las Plazas y Parques de Buenos Aires: La Obra de las a short-lived initiative to involve community members Paisajistas Franceses 1860-1930. City of Buenos Aires: in redesigning their parks. From February to June Argentina, 1998. 2003 this pilot program, called El Programa Diagnóstico Birch, Melissa H., and Jerry Haar. “Privatization in the Participativo del Paisaje (the Diagnostic Participatory Americans: The Challenge of Adjustment.” In The Landscape Program), worked with neighbors of ten Impact of Privatization in the Americas. University of plazas. The project was well received by the partici- Miami: North South Center Press, 2000. pants. One of the primary objectives was to educate Boffi Lissin, Fernando. Director of CGP 13, a local govern- communities about park landscape appreciation in ment center. Interview, March 11, 2003. order to provide citizens with the proper analytical tools to understand their park’s needs. The program Brailovsky, Antonio. Public Advocate for the Environ- was halted. See www.buenosaires.gov.ar. See also an ment. Interview, December 19, 2003. untitled report on volunteerism in parks http://www. Bryson, John M., and Barbara C. Crosby. Leadership for the defensoria.org.ar/pdf/infobrailovsky.pdf. Common Good: Tackling Public Problems in a Shared-Power 55. The labor union has openly voiced opposition to World. San Francisco: Jossey-Bass Publishers, 1992. partnerships and volunteerism. Many union members Burgos, Juan Ortiz. President of Asociacion PrProtejer,otejer, a non- who do not fulfi ll their job duties are threatened by profi t dedicated to the Ecological Reserve. Interview, volunteers who have the potential to expose their May 1, 2003. lack of effi ciency. Parks Department union members need to understand that partnerships will make their Caeiro, Francisco. Former Director of the Ecological Re- jobs easier. For a discussion on union corruption, see serve. Interview, June 5, 2003. Romero, pp. 265-267, 337. Caraballo, Pini. President of Fundacion Ciudad. Interview, 56. John Kretzmann, “Forming Effective Partnerships,” November 26, December 5, December 16, 2002. Parks as Community Places, Conference Proceedings, Castelli, Ana Maria. Marketing Director for Aguas Argen- Lila Wallace, Reader’s Digest (Boston, Mass.: Urban tinas, the padrino of the Boat and Rose Garden Lakes Parks Institute managed by Projects for Public Spaces in February 3rd Park. Interview, November 5, 2002. Inc., May 3-5, 1997), p. 54. City of Buenos Aires. Jornadas de Actualizacion del Plan de 57. Ibid., p. 36. Manejo del Parque Avellaneda, Buenos Aires, Argen- 58. Romero, A History of Argentina in the Twentieth Century, tina, 2000. p. 328. Comerio, Juan. Director of the Padrino Program. Interview, November 4–8, December 23, 2002. Cranz, Galen, and Michael Boland. “The Ecological Park WORKS CITED as an Emerging Type.” Places, a Forum of Environmental Design, vol. 15, no. 3. Alvarez, Guillermo Rodriguez. Manager of La Recova, the Domnanovichd, Rudolfo, in collaboration with AVINA. padrino of Plazoletas Toribio Tedin, Plaza Ciro el Grande, “Diagnostico de Usario Visitantes de la Reserva and Plaza Cataluna. Interview, November 6, 2002. Ecologica de la Costanera Sur,” Buenos Aires, Ar- Asiduos Concurrentes de la Plaza Campana de Desierto. gentina, 2002. “No a los Padrinazgos en los Espacios Verdes.” 5tas. _____. Professor, University of La Plata Architecture Jornadas por los Espacios Verdes Urbanos (August 28- Department, and consultant for Aves Argentinas. 30, 1997). Interview, October 28, 2003.

LBJ JOURNAL OF PUBLIC AFFAIRS 48 PUBLIC-PRIVATE PARTNERSHIPS IN PARKLAND MANAGEMENT FALL 2004

Echevarria, Osvaldo. President of Amigos del Lago de Pal- Park maintenance workers. Interview, December 3, ermo. Interview, December 16, December 28, 2002. 2002. Fernandez, Herberto. President of the Avellaneda Park Pestahna, Francisco. Former Director of the Ecological Volunteer Group. Email to Katherine Clark. Reserve. Interview, February 24, 2003. Floresta, Sol. Assistant to the Director of Avellaneda Park. Pivito, Juan Carlos Arias. Unpaid volunteer, Avellaneda Interview, November 11, 2002. Park. Interview, March 2003. de Francesco, Virginia, Aves Argentinas representative to Plaza Dorrego Association President. Plaza Dorrego the Ecological Reserve Management Council. Febru- Padrino. Interview, November 5, 2002. ary 27, 2003. Plaza Mitre Association President. Plaza Mitre Padrino. General Information Section. “Controversia por el Parque Interview, October 29, 2002. Avellaneda,” Clarin, December 19, 2001. Poggiese, Hector. FLACSO researcher and professor. _____. “Sólo Quedan 160 Guardianes en las Plazas de la Interview, December 22, 2002, April 22, 2003. Ciudad.” La Nacion, June 9, 2003. Representative for Groupo SPM (TIM, Galeno Life, and Gerchunoff, Pablo, and Guillermo Canovas. “Privatiza- AMSA). Rodreguez Pena Plaza Padrino. Interview, tion: The Argentine Experience.” In Bigger Economies, December 29, 2002. Smaller Governments: Privatization in Latin America, de Riz, Liliana. “La Politica como Proyecto de Futuro.” ed. Glade, William with Rossana Corona. Boulder: La Nacion (May 22, 2001). Westview Press, 1996. Roberts, Carlotta. Aves Argentinas representative to the Gill, Lorena. Assistant to the Buenos Aires Secretary of the Ecological Reserve Management Council. Interview, Environment. Interview, February 27, May 5, 2003. March 12, 2003. Grass, Emilio. Co-president of Por La Reserva, a nonprofi t Romero, Luis Alberto. A History of Argentina in the Twentieth dedicated to the Ecological Reserve. Interview, Feb- Century (translated by James P. Brennan). University ruary 16, 2003. Park: Pennsylvania State University Press, 2002. Grillo, Oscar. “Las Asociaciones Vecinales en Buenos Aires: Rosemberg, Diego, and Marcelo Massarinc. “Buenos Aires Restricciones Sistematicas y Experiencias Concretas.” Tiene un Tercio de los Espacios Publicos Necesarios.” In Publico y Privado: Las Organizaciones Sin Fin de Lucro La Magna (November 24, 1993). en la Argentina, ed. Andres Thompson. UNICEF: Edito- rial Losada, Buenos Aires, Argentina, 1995. _____. “Palermo Perdio Mas de 300 Hectareas de Parques Publicos,” La Magna, December 15, 1993. Hurovich, Ivan. Coordinator of the diagnostic landscape participatory program. Interview, September 9, Salamon, Lester M. Partners in Public Service: Govern- 2003. ment-Nonprofi t Relations in the Modern Welfare State. Baltimore and London: Johns Hopkins University Keskeskian, Graciela. Environmental Education Director Press, 1995. for the Buenos Aires Secretary of the Environment. Interview, December 13, 2002, May 2, 2003. Savas, E.S. Privatization and Public-Private Partnerships. New York: Chatham House Publishers, 2000. Kretzmann, John. “Forming Effective Partnerships.” Con- ference Proceedings, Lila Wallace, Reader’s Digest, Schwartz, Andrew, ed. Public Parks, Private Partners: How Urban Parks Institute (managed by Projects for Public Partnerships are Revitalizing Urban Parks. New York Spaces Inc.). Parks as Community Places, Boston, Mas- City: Project for Public Spaces Inc., 2000. sachusetts, May 3-5, 1997. _____. “Parks as Places: What’s on our Bookshelves?” Larrea, Horacio Wilder. Recycling Museum Director, Places: A Forum of Environmental Design, Volume 15, landscape architect. Interview, May 21, 2003. Number 3. Marquez, Fabio. Assistant Buenos Aires Parks Depart- Staff Writer, Noticias Urbanas. “Espacios Verdes,” July ment Commissioner. Interview, March 21, April 9, 30, 2002. August 20, 2003. Sturla, Carolina Llosa. Community relations director for Montero, Marta. Landscape architect and former Parks YPF-Repsol, the padrino of Carlos Thays Park and Department employee. Interview, January 3, 2003. the Rose Gargen in February 3rd Park. Interview, November 4, 2002. Nakache, Lydia. Paid volunteer, Avellaneda Park. Inter- view, December 11, 2002. Tatti, Victoria. “No Pueden 1.207 Personas Mantener Todas las Plazas?” La Nacion (November 29, 2002). Oliva, Fabio. Unpaid volunteer, Avellaneda Park. Inter- view, June 2, 2003. Toribio, Alicia E. “Los Espacios Verdes de Buenos Ai- res—Moneda de Cambio o Patrimonio de Todos?” Panico, Barbara. Graduate student at FLACSO studying Series: Medio Ambiente No-3, City of Buenos Aires, Avellaneda Park. Interview, June 5, 2003. Buenos Aires, Argentina, 1995.

LBJ JOURNAL OF PUBLIC AFFAIRS DESIGNING REFORMS

DECENTRALIZATION PROGRAMS IN PERU AND BOLIVIA

HE LAST TWO DECADES have seen unprecedented waves of political and economic reforms in Latin American countries. TThese reforms have principally refl ected the neoliberal ideol- ogy that has prevailed since the debt crisis of the early 1980s led to subsequent structural adjustment programs (known as the fi rst gen- eration of neoliberal reforms). The second generation of neoliberal reforms includes decentralization efforts that, from a technocratic per- spective, seek to reap the economic benefi ts of transferring resources and decision-making power away from national governments and into the hands of regional and local governments. Such ambitious reforms—although easily understood as part of a wave of neoliberal reforms—have often achieved popular support. Likewise, many perceive decentralization as integral to the consolida- tion of the region’s democracies through redistribution of political and economic power away from major urban centers. Support for de- centralization has come from both the political left, which focuses on its value for democracy, and the right, which focuses on its economic benefi ts, as well as from local and regional movements, multilateral agencies, academics, politicians, technocrats, and ordinary citizens. Support for decentralization of the state in countries like Bolivia and Peru seems to present opportunities for governments to embark BY GONZALO ALCALDE on what some analysts have called “audacious reforms.”1 In the case of other second-generation institutional reforms, broad sectors of the Gonzalo Alcalde is a third-year population and powerful stakeholders with long-term interests in doctoral student at the LBJ School maintaining the status quo often resisted change.2 However, the main of Public Affairs. He is a native of resistance to decentralization has come from central governments. Peru and holds an M.A. in inter- Yet, once national executives decide to embark on reform efforts, they national relations from the Univer- often face great pressure to decentralize following political rather sity of Kentucky. He has worked than technical criteria. in NGOs and the public sector in This pattern poses risks to the outcome of such ambitious pro- Peru. Gonzalo is currently working grams. Literature reviewing worldwide decentralization efforts on a dissertation on the decentral- shows that decentralization is a highly complex undertaking. Success- ization process in Peru.

LBJ JOURNAL OF PUBLIC AFFAIRS 50 DESIGNING REFORMS FALL 2004 ful programs require careful design and implemen- 1994’s Ley de Participación Popular (LPP—Law of tation that address the particular circumstances of Popular Participation), in Peru no single, coherent each country in order to improve economic perfor- vision of decentralization arose in the implementa- mance and democracy.3 Decentralization can take tion phase. Nevertheless, the two processes have on many forms, and there is a growing recognition faced some similar challenges, including the limited of the importance of political context for its suc- institutional capacity of subnational governments. cess.4 Thus, although reformers sometimes present decentralization as a magic solution during electoral campaigns, it actually presents considerable risks CONCEPTUAL FRAMEWORK and challenges to policymakers. Not surprisingly, then, implementing success- This paper focuses on the initial phases of decen- ful decentralization processes has proven to be tralization programs (roughly the agenda-setting far more complicated than political discourse and and policy formulation stages5) in these two neigh- public opinion previously suggested. The cases of boring Latin American countries. In Bolivia, this Bolivia and Peru provide evidence that the political corresponds to the policymaking process leading context during the design phase greatly impacts to 1994’s Ley de Participación Popular, while in Peru outcome of decentralization programs, with po- it corresponds to the policymaking process lead- litical interests sometimes overwhelming technical ing to the Ley de Bases de la Descentralización and considerations. Focusing on the interaction between Ley Orgánica de Gobiernos Regionales (Basic Law political interests and technical criteria, this paper of Decentralization and Organic Law of Regional compares the design and early implementation of Governments) in 2002. The analysis focuses on decentralization in these two countries. In this way, understanding which actors were able to infl uence it illustrates links between the political context at the design process, what their vision for decentral- the onset of decentralization and the depth and ization was, and how they were able to infl uence coherence of the decentralization programs that the legal framework for the implementation of subsequently developed. decentralization. Three assumptions based on recent literature reveal that the design of a decentralization program BACKGROUND is crucially important to the impact and success of the entire process:6 After long periods of military rule, Bolivia and Peru saw the return of fragile democracies in the • Decentralization of government is not one early 1980s, bringing a reawakening of demands distinct policy instrument, but a complex for decentralization. Soon after being elected into concept that comprises many possible offi ce, the presidents of these two countries, both modes of implementation. with neoliberal political ideas (Gonzalo Sánchez de Lozada in Bolivia in 1994 and Alejandro Toledo • The implementation of decentralization in Peru in 2001) faced pressures to decentralize is not just a technocratic decision, but the the state. In these two neighboring countries with result of a political process that involves similar historical backgrounds and development a number of actors within the state and challenges, the pressure to decentralize came from beyond. regional actors, civil society, technocratic elites, and international fi nancial institutions. • Actors that participate in the political and In Bolivia, the earlier example, the impact of policy process may favor particular models an ambitious and swift decentralization process of decentralization that they identify as appears to have been profound in terms of restruc- advancing their particular objectives. turing governance and changing public policies to better suit the priorities of local populations. In the The dispersion of power and governmental more recent case of Peru, the still-unfolding process functions to the periphery can vary greatly in de- seems to be based on an unclear model, and its im- centralization. The most frequent categories of de- pact on governance and public policies is equivocal. centralization of government (which focus on what Whereas Bolivia experienced a distinct and decisive is being decentralized) are administrative, political, transfer of power toward municipal governments and fi scal. There are three major modes of adminis- and downward democratization beginning with trative decentralization that refl ect varying degrees

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII DESIGNING REFORMS 51 of transfer of authority, responsibility, and fi nancial in 1982. These pressures on the executive came both resources. These include deconcentration, delega- from “below” (worker and peasant movements, tion, and devolution, where the latter is the “cession regional civic committees, and other social move- of sectoral functions and resources to autonomous ments) and increasingly from “above,” notably, the local governments that, in some measure, then take international fi nancial institutions that particularly responsibility for service delivery, administration, supported the Sánchez de Lozada government. and fi nance” and is the only mode that actually After the 1952 revolution, the highly central- grants autonomy.7 ized state apparatus sought to direct Bolivian Finally, in considering the categories above, we development and integrate the country by mod- must also consider to whom central governments ernizing and industrializing the economy largely are decentralizing, as there are different levels of within the Import Substitution Industrialization subnational government. The cases of Bolivia and (ISI) model. Local government was absent with Peru illustrate the different possibilities, in which large areas of the country lacking any type of responsibilities and functions can transfer from municipal structure and experiencing little state central government to regional/departmental, presence at all. The groups pressing for decen- provincial, or district governments.8 tralization (especially civic committees represent- ing elite interests) were generally active at the regional level and pushed for decentralization to THE BOLIVIAN MODEL SINCE 1994: the intermediate level of government. A draft of a “MUNICIPALIZATION” law for decentralization to the departmental level, which was the product of intense debate between BACKGROUND state, political parties, and regional movements, Since 1994, Bolivia has experienced substantial reached the Senate in 1992, but failed because of devolution from the central government to the hesitation by key actors.9 provincial municipalities. Decentralization has involved a variety of policy areas and has been MAJOR ACTORS achieved through political, administrative, and The deep regional and ethnic cleavages in Bolivia fi scal decentralization. Also, since 1995, there has have historically served as organizing elements in been a concurrent deconcentration of functions to civil society. Organized labor and regional move- the regional level (departments) that more clearly ments have long put pressure on the central gov- involves administrative decentralization. Although ernment for decentralization to the intermediate some weaknesses in the model emerged in subse- level. Local actors such as indigenous groups and quent years, all accounts of Bolivian decentralization community associations, on the other hand, have cite the unusual swiftness and depth of reform. traditionally been weak and have not constituted a For most of Bolivian history, regional divisions major force in the decentralization debate. In fact, rooted in the country’s geographic and ethnic di- local government had been nonexistent through- versity have constituted a serious challenge to na- out much of Bolivian territory during much of the tional integration. Bolivia had a highly centralized country’s history. national government for much of the 20th century, National political parties in Bolivia have gener- particularly since the revolutionary government ally functioned more as vehicles for leaders seeking of the 1950s that sought to strengthen the state and to control state patronage at the central level than guide national development. Economic instability as institutions articulating the interests of social relating to the debt crisis of the 1980s led to the classes, regions, or individuals.10 Thus, while politi- adoption of IMF-backed structural reforms and cal parties were generally divorced from regionally neoliberal economic policies, including trade lib- based pressure groups related to labor, business, eralization and privatization. or other interests, local organizations such as civic committees often worked as articulators of interests THE ROAD TO DECENTRALIZATION IN 1994 at the departmental and city level. Although the struggle for decentralization can be The executive, especially since the 1950s, had traced back to the regional divisions existent since been preoccupied with holding the nation together independence, the pressures for decentralization in the face of strong regional pressures. In response of the Bolivian state—as a means to address the to the growing demands for decentralization in the country’s social and regional inequalities—gained early 1990s, and in light of recent instability, an considerable strength after the return to democracy incoming administration had to carefully consider

LBJ JOURNAL OF PUBLIC AFFAIRS 52 DESIGNING REFORMS FALL 2004

subnational demands and foster more equitable 1. concentrated economic infrastructure and development throughout the country without jeop- productive activities at the expense of social ardizing national cohesion. services and human capital formation; There has been great public and NGO (domestic and international) support for the decentraliza- 2. geographical concentration leading to a tion process. Despite the initial opposition from unequal geographic distribution; groups that traditionally favored decentralization to the departmental level, the Sánchez de Lozada 3. regressive in terms of need; government was able to create a large contingent of stakeholders in the process as it empowered local 4. economically regressive, for example, favor- governments and civil society. Intermediate-level ing wealthier districts.13 groups gradually became more interested in engag- ing these actors. With LPP, these trends in public investment reversed within a few years. At the same time, CHARACTERISTICS OF DECENTRALIZATION POLICY DESIGN there was national and local institutionalization The Sánchez de Lozada administration designed of social participation. Traditional organizations the long-awaited de- participated in planning, centralization reforms execution, and oversight in significant isolation of local government. In from civil society and The implementation of effect, thousands of local political debate.11 The decentralization is not just a groups were engaged as design of the Bolivian a new level of govern- decentralization model technocratic decision, but the ment expanded. With the was largely the result of result of a political process that implementation of LDA work by a team led by in 1995, a simultaneous Hugo Molina at Sánchez involves a number of actors deconcentration at the de Lozada’s think-tank, within the state and beyond. departmental level oc- Fundación Milenio (Mil- curred (a signifi cant but lennium Foundation). far less dramatic process). Contrary to what most actors, and even the Thus, the general trend after 1994 has been one of president, had in mind, the Molina team proposed “municipalization” of government. decentralization to provincial actors, largely by- LPP established that municipal governments passing powerful regional actors. must automatically receive 20 percent of central These major reforms were swiftly approved government revenues (see Table 1). This change was by Congress with very little debate. At first, re- effective immediately and gave poorer municipali- gional actors presented strong resistance to the ties access to much greater resources. The reforms government’s version of decentralization. How- established Territorial Base Organizations (TBOs) ever, the new administration took advantage of as community organizations to support popular its popularity during its honeymoon period to participation, representation, and accountability consolidate popular support within a brief period.12 within the districts and cantons of each municipal- The changes were implemented beginning in 1994 ity. These organizations perform a variety of plan- through constitutional reforms made in 1993. The ning, execution, and oversight activities and, in LPP and other related laws—such as 1995’s Ley effect, formalized a variety of local groups. de Descentralización Administrativa (LDA), which Almost overnight, 198 new provincial municipal- regulated decentralization at the departmental ities were created, and local populations elected lo- level—signifi cantly changed relations between the cal leaders for the fi rst time in Bolivia’s history. The state and society and between levels of government transfer of national tax revenues to municipalities as well as altering the role of civil society in the in accordance with population especially benefi ted policy process. The changes were effective within rural areas. The increase in resources available to lo- a rather short period of time. cal governments was often enormous in rural areas. Local governments had virtually total discretion INITIAL IMPACT OF THE DECENTRALIZATION PROCESS over the use of these funds with the condition that Faguet lists four “stylized facts” about public invest- no more than 15 percent of the transfers could cover ment prior to 1994 in Bolivia’s centralized model: operational (fi xed) expenses. Along with increased

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII DESIGNING REFORMS 53 funds, local governments also gained responsibility and Gray-Molina, et al.—among others—describe a for maintaining and supplying infrastructure and design process that was largely free of negotiations services in areas such as water supply, education, with political parties, civil society organizations, and health. and local groups.16 In fact, the team in charge of LPP also formalized a diverse set of local orga- design was close to the president, but not subject nizations at the territorial level, such as indigenous to the ruling party’s oversight. Moreover, the communities, peasant unions, and neighborhood honeymoon period of an incoming president, who groups.14 There has undoubtedly been a great in- enjoyed a coalition majority in congress, helped the crease in social mobilization at the local level since decentralization legislation receive quick approval, 1994; by 1997, 13,000 TBOs were formalized as well despite opposition from regional groups and labor as 311 oversight committees (one per province). organizations. Thus, even though decentraliza- Patterns of local investment and infrastructure have tion in general was a demand from below that had changed signifi cantly as a result of Bolivia’s munici- existed since the return to democracy in 1982, de- palization. A study by Faguet found that decentraliza- pictions of the Popular Participation’s municipal- tion increased the sensitivity of public investment to ization as the expression of the will of civil society local needs as local governments provided different are questionable. public goods than the central government had previ- Somewhat ironically, many suggest that Presi- ously.15 With the municipalization of government also dent Sánchez de Lozada, a believer in the neolib- came much greater emphasis on social infrastructure eral model, was fundamentally concerned with in public investment. strengthening the Bolivian state, particularly in the face of three challenges: the lack of legitimacy of the ANALYSIS state in many parts of Bolivia, the widespread cor- Up until the approval of LPP, Bolivia’s highly ruption at the central level, and the long-standing centralized system only had elections for national centrifugal forces from the regions that threatened representatives, while departmental authorities to disintegrate the nation. These issues, however, lacked autonomy, and local government rarely were not new concerns; in many ways, they had existed. The allocation of resources to local govern- driven his party’s centralization of Bolivia in the ments was highly discretionary and politicized, 1950s. The team of technocrats commissioned by with only about 10 percent of government revenues the president came up with a decentralization plan being transferred and with a heavy bias toward the that was a novel solution to old problems. city of La Paz. As previously mentioned, municipalization was As previously suggested, accounts of the design not the most popular model of decentralization in and implementation of LPP in Bolivia by Grindle the country, or the most obvious one, but the tech- nocrats in charge of design saw their plan as the best way to deal with the challenges outlined above. Table 1 They saw the reforms as an opportunity for the cen- Regional Distribution of Public Funds in tral government to directly engage with traditional Bolivia, Before and After Decentralization and community organizations (for the fi rst time), while bypassing the regional actors they perceived Central-to-Local Revenue Sharing as dangerous. The technocrats also believed that Department 1993 1995 % Change corruption at the local level, if present, would be La Paz 120,774 184,472 53 less harmful and easier to control than that which Santa Cruz 54,157 124,394 130 long existed at the central level. However, as many Cochabamba 29,279 114,601 291 Oruro 7,072 28,213 299 authors stress, their plan was a risky political wa- Potosi 1,835 57,346 3,026 ger, which sought to strengthen the Bolivian state Chuquisaca 4,881 47,790 879 by empowering newly formalized, institutionally Tarija 4,708 28,699 510 weak, local bodies. Beni 721 21,884 2,937 Pando 99 881 787 The swift approval and implementation of the laws facilitated the emergence of thousands of new Total 223,525 608,280 172 stakeholders in the process within a short period. Source: Jean-Paul Faguet, “Does Decentralization Increase In the early period for the new administration, Government Responsiveness to Local Needs?” Discussion Paper government virtually ignored civil society’s op- No. 999 (London: Centre for Economic Performance/ London position. In fact, the LDA, which followed the LPP, School of Economics, 2000). reasserted the central role of municipalities, rather

LBJ JOURNAL OF PUBLIC AFFAIRS 54 DESIGNING REFORMS FALL 2004 than regional governments, in the new decentral- tion, but less clearly than the Bolivian model is one ized governance structure of Bolivia. of municipalization. The particular context in which the program was designed and implemented—free from political THE ROAD TO DECENTRALIZATION negotiations—was a key factor behind the uncom- The recent road to decentralization can be traced monly radical and rapid decentralization of the back to the Constitution of 1979 and the succes- Bolivian state. The reforms’ focus on decentraliza- sive return of democratic government in 1980. A tion to local government can be partly attributed to signifi cant step in the direction of political decen- political calculation. While the Bolivian model still tralization was the election of municipal authori- faces many challenges and is far from irreversible, ties in 1980, which continues uninterrupted to the its signifi cant impact is clear. present day. Despite the constitutional call for decentralization, the structure of government remained basically un- THE PERUVIAN MODEL: changed throughout most of the 1980s. Public invest- “REGIONALIZATION”?17 ment patterns remained severely centralized. In 1988, as the country descended into one of the worst eco- BACKGROUND nomic and social crises of its history, the government Regional elections and the approval of the Ley of Alan García pushed forward the regionalization of Orgánica de Gobiernos Regionales (Organic Law the country, initially installing fi ve elected regional of Regional Governments) in November 2002, governments among 11 total regions. However, together with the inauguration of 25 regional after the 1992 self-coup, President Fujimori quickly governments in January 2003, marked the begin- derailed the short-lived and rather fragile regional- ning of a long-awaited decentralization process ization of García. In the 1990s, Fujimori dissolved in Peru that had been one of the key promises of regional autonomy and carried out a recentralizing President Toledo’s electoral campaign in 2001. state policy that systematically weakened municipal However, unlike Bolivia and in contrast with governments.19 Peru under Fujimori remained a mark- electoral rhetoric, the change resulting from the edly centralized country. approval of the initial legal framework was not In many ways, like Sánchez de Lozada, Fuji- profound enough to permanently shape the still- mori sought to strengthen the state in the context of evolving decentralization process. neoliberal reforms, but took a drastically different Peru shares Bolivia’s past of highly centralized route, one of severe centralization and authoritar- public policy and, to a lesser extent, its history of a ian rule with little concern for curbing widespread weak state that has faced strong regional demands. corruption. With the fall of Fujimori came electoral In socioeconomic and political terms, Peru has been promises of decentralization and increasing de- a highly centralized country for centuries. Most mands of regional movements. wealth and industry are concentrated in the capital and the coastal region. MAJOR ACTORS Decentralizing Peru has long been a rallying cry The new administration under President Toledo for political leaders hoping to resolve the country’s clearly committed itself to decentralizing the coun- deep regional socioeconomic disparities. Most of try. Although he announced no specifi c plan during Peru’s 12 constitutions have specifi cally mentioned or immediately after the campaign, decentralization decentralization as state policy.18 Thus, it is par- was central to the new president’s discourse. After ticularly striking that the fi rst thorough attempt inauguration in July 2001, he announced regional at decentralizing the Peruvian state did not come and local elections for November 2002, though the until 2002. actual planning of decentralization did not occur The current decentralization framework includes immediately. Eventually, the president delegated a substantial increase in local- and regional-level the task to the prime minister’s offi ce (Presidencia participatory planning. Responsibilities for deci- del Consejo de Ministros, or PCM), where Prime Min- sion making and spending in a variety of programs ister Roberto Dañino, an international technocrat, (most prominently social programs) will gradually drafted teams for preparing the modernization and shift from the central government to the regional, decentralization of the Peruvian state. With support provincial, or local (district) levels depending on the from the Inter-American Development Bank, a PCM particular sector or program. The Peruvian model team headed by Carlos Casas began working in of decentralization is generally one of regionaliza- early 2002 on developing the legal framework for

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII DESIGNING REFORMS 55 decentralization and engaging members of Con- between the regional and existing local levels of gress in dialogue regarding decentralization. government.20 The designers hoped to establish a Congress has played a fundamental role in plan that would hinder regional governments from providing the legal framework for decentraliza- dominating local governments. Unlike Bolivia, there tion (including constitutional reforms) and for the was no possibility of political gain by creating a new operation of the regional governments elected in category of stakeholders in decentralization. 2002. The permanent congressional committee The work of the PCM team was largely refl ected on decentralization plays an influential role in in the Ley de Bases de la Descentralización (Basic Law monitoring the new levels of government and the of Decentralization) of July 2002. While their model transfers of public functions to local or provincial served as an initial reference for congressional levels. The numerous political interests involved debate, the approaching regional elections made in the decentralization process are most evident in shielding subsequent proposals from political Congress, where the debate on the powers of the compromises impossible. In Congress, the power- regional presidents extended until a few days before ful opposition party, Alianza Popular Revolucionaria the actual election. Americana (APRA), was the force behind a return Other signifi cant actors include the Consejo Na- to a regionalization model. The political party cional de Descentralización with the best-developed (CND—National Decen- regional bases and the tralization Council), an The Sánchez de Lozada best chances in the re- intergovernmental or- gional elections worked ganization within the administration designed the long- to stop decentralization executive, which since awaited decentralization reforms from going beyond the late 2002 has had the mis- regional level, success- sion of promoting col- in significant isolation from civil fully steering the Ley laboration and training of society and political debate. Orgánica de Gobiernos subnational governments Regionales away from during the decentraliza- the original vision. On tion process. The council the other hand, Toledo’s is also in charge of certifying the readiness of local party, Peru Posible, and its allies favored a more governments to receive and administrate projects balanced model. funded by social programs. The traditionally pow- Unlike Sánchez de Lozada, Toledo was not able erful Ministry of Economy and Finance (MEF) is to effectively rally public or political support for a another important actor in decentralization, wield- particular model of decentralization. The Toledo ing great infl uence on fi scal matters within the legal administration’s honeymoon period was unusually framework vis-à-vis both the design team at PCM short and his popularity levels were only about 30 and Congress. percent just six months after taking offi ce. For these reasons, debate on the Ley Orgánica de Gobiernos CHARACTERISTICS OF DECENTRALIZATION POLICY DESIGN Regionales was not concluded until just a few days Under President Alejandro Toledo, the government before the regional elections. fi nally began the long-awaited decentralization of The disjointed model for Peru’s decentraliza- the state. Here, as in the Bolivian case, some pres- tion is the result of tough political debate, rather sure for decentralization came from below—from than the refl ection of a single, coherent vision of regional movements, NGOs, and civil associations. decentralization. Most analysts agree that the model Also like Bolivia, support for decentralization devel- is complex and often contradictory. The level of oped from above, particularly among international government to which functions are decentralized fi nancial institutions, which backed Toledo and his varies according to programs and sectors, but not cabinet, as well as among technocratic elites. The necessarily in a manner that is elegantly balanced. Peruvian decentralization design sets up a gradual process of reaching the department, province, and INITIAL IMPACT OF DECENTRALIZATION PROCESS district levels. Eventually, current regions should Proximity in time makes it difficult to provide become part of larger subnational units. The legal quantitative assessments of the impact of Peruvian framework that the technocratic team at PCM decentralization. Financial resources available to originally drafted in 2002 created a process of de- subnational governments, mainly at the regional centralization that maintained a complex balance level, have noticeably increased, but the change is

LBJ JOURNAL OF PUBLIC AFFAIRS 56 DESIGNING REFORMS FALL 2004 nowhere as dramatic as that in Bolivia after LPP without a corresponding rise in fi nancial resources (see Table 2). particularly challenge regional and local govern- On the other hand, the qualitative indicators are ments. A fi scal safeguard for the decentralization quite clear; although decentralization has drawn process, which was part of the original design and widespread approval from Peruvian citizens, many became law, makes it impossible for regional gov- sectors that once stood in consensus regarding ernments to directly borrow money. Moreover, their the need to decentralize now criticize the reform capacity to directly raise their own taxes is limited, measures carried out by the Toledo administra- but not clear, in the legal framework. This level of tion. Today the public is increasingly skeptical; government is largely restricted to transfers from by early 2004, polls showed general public disap- the central government and to taxes on the extrac- proval of the once popular regionalization process. tion of natural resources, which vary greatly from As evidenced in the news media and in academic region to region. and policy circles, observers perceive a failure of Additionally, the new law that regulates local coordination among the key actors in charge of the and provincial government activities in the context process. The reforms seem to lack clearly defi ned of decentralization, the Ley Orgánica de Municipali- autonomy and delimitation of responsibilities for dades (Organic Law of Municipalities, May 2003), regional governments. reinforces the upper hand of regional governments The capacity of regional governments, provincial in the decentralization process. Many feel that it is governments, and district municipalities to assume poorly coordinated with other elements of the legal greater responsibilities under new arrangements framework for decentralization. seems also to be limited. Increasing responsibilities The most undeniable impact of the current pro- cess is the development of a new level of elected government in Peru, which is responsible for Table 2 coordinating various social sector and infrastruc- Changes in the Budgets of ture activities. These regional institutions have Peruvian Regional Governments a structure that is unique in the Peruvian state, (Annual Expenditures in particularly because of the permanent role of civil Current Nuevos Soles) society within them.

Region 1999 2003 % Increase ANALYSIS Lima/Callao 114,514,077 152,068,327 32.8 Toledo came to power with the support of many Amazonas 98,721,385 146,529,845 48.4 Ancash 313,814,003 403,780,771 28.7 regional movements and civil organizations that Apurimac 130,247,538 185,703,600 42.6 demanded regionalization and he had overcome Arequipa 329,966,225 442,972,444 34.2 a rival, García, who also had decentralization as a Ayacucho 186,185,145 256,666,474 37.9 key theme in his campaign. Toledo did not have a Cajamarca 286,907,445 409,505,092 42.7 Cuzco 321,164,321 397,346,228 23.7 comfortable majority in a Congress that had just Huancavelica 110,871,127 179,961,392 62.3 returned to a multiple-district system of representa- Huanuco 164,021,645 218,472,165 33.2 tion, and regional pressures for empowerment were Ica 216,693,074 277,764,092 28.2 strong. The delay in presenting decentralization Junin 345,822,791 439,648,183 27.1 La Libertad 363,956,137 479,548,630 31.8 legislation to Congress (relative to Bolivia) and the Lambayeque 225,936,731 298,036,077 31.9 rapid loss of popularity of the administration were Loreto 346,465,205 436,522,660 26.0 also reasons that a single, coherent model of decen- Madre De Dios 41,199,596 65,288,528 58.5 tralization did not develop. The president could not Moquegua 64,435,831 97,268,486 51.0 Pasco 77,842,627 111,412,049 43.1 shield his plan from political debate and carry the Piura 393,375,471 461,450,560 17.3 intact design into the implementation phase. The Puno 351,034,310 477,676,217 36.1 decentralization program that surfaced was, thus, San Martin 193,809,380 265,747,084 37.1 not the result of initial technical considerations, Tacna 111,441,230 146,140,739 31.1 Tumbes 88,691,020 117,312,692 32.3 but was the result of hard fought compromises Ucayali 148,774,126 185,233,002 24.5 between competing political interests. Moreover, Total 5,025,890,440 6,652,055,337 32.4 neither the political incentives nor the appropriate political context existed for implementing a swift Source: Ministerio de Economía y Finanzas, “Sistema Integrado de devolution as in Bolivia. Administración Financiera del Sector Público.” Online. Available: http://www.mef.gob.pe. Accessed: July 15, 2004.

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CONCLUSION 2. Joan Nelson, Reforming Health and Education: The World Bank, the IDB and Complex Institutional Change A review of the cases of Bolivian and Peruvian (Washington, D.C.: ODC, 1999). decentralization programs suggests that the differ- 3. Richard Bird and F. Vaillancourt, “Fiscal Decentral- ent levels of ability of each executive to shield the ization in Developing Countries: An Overview,” in design and initial implementation of decentraliza- Fiscal Decentralization in Developing Countries, eds. Richard Bird and F. Vaillancourt (Cambridge: Cam- tion programs from open political negotiation has bridge University Press, 1998); Jennie Litvack, Junaid resulted in signifi cantly different forms of decen- Ahmad, and Richard Bird, Rethinking Decentralization tralization. in Developing Countries (Washington: World Bank, Decentralization was a high priority on the policy 1998); Remy Prud’homme, “On the Dangers of De- agenda of each country’s incoming administration centralization,” Policy Research Working Paper 1252 after the return to democracy. The pressures from (Washington: The World Bank, 1995). above and below ensured that decentralization 4. Prud’homme, “On the Dangers of Decentralization”; would need to be a focus of the national govern- Dennis A. Rondinelli, John R. Nellis, and Shabbir ment. However, once the decision to decentralize Cheema, “Decentralization in Developing Countries: was made, each administration had a different A Review of Recent Experiences,” World Bank Staff capacity to shelter the technical formulation of the Working Papers No. 581 (Washington: World Bank, process from arduous political compromises. 1984). Under two presidents associated with neoliber- 5. The reference to the traditional stages model of public alism and facing many similar social and political policy is adopted for heuristic value and does not at challenges, the design phases in Bolivia and Peru all imply that the processes in these countries neatly yielded programs that were not only distinct in fi t this framework. terms of an initial guiding model, but more impor- 6. Tulia Falleti, “Of Presidents, Governors and Mayors: tantly, distinct in terms of their overall depth and The Politics of Decentralization in Latin America” coherence. It is clear that the political context in (paper presented to the Latin American Studies As- sociation Conference, March 2003); Kathleen O’Neill, which agenda setting and policy formulation took “Decentralization as an Electoral Strategy,” Compara- place was very different in each case. The contrast tive Political Studies, vol. 36, no. 9 (November 2003); between the two experiences suggests preliminar- Eliza Willis, Christopher da C. Garman, and Stephan ily that the depth of decentralization reforms can Haggard, “The Politics of Decentralization in Latin depend on whether a presidential administration America,” Latin American Research Review, vol. 34, no. can protect technical aspects of program design 1 (1999). from political debate, even when there is public and 7. Thomas Bossert, Decentralization of Health Systems political support for decentralization of the state. in Latin America: A Comparative Analysis of Chile, In Bolivia, a model of decentralization was im- Colombia, and Bolivia (Cambridge: Harvard School posed from above and designed to fulfi ll objectives of Public Health, 2000), p. 4; Victoria Rodríguez, of the executive. The implementation of the reforms Decentralization in Mexico: from Reforma Municipal to was swift and occurred within an advantageous Solidaridad to Nuevo Federalismo (Boulder, Col.: West- view Press, 1997); Rondinelli et al., “Decentralization context. Moreover, the Bolivian government was in Developing Countries.” able to carefully calculate the challenges and op- portunities for gaining popular support for the 8. Privatization is often also considered a type of de- reforms and acted strategically.21 Paradoxically, centralization; however, we shall not include it in this discussion as it has not been an integral part of decentralization reforms that are meant to enhance either case. values like participation and accountability may be more effectively implemented when the details of 9. José Blanes, La descentralización en Bolivia: Avances y Retos Actuales (La Paz: Centro Boliviano de Estudios its design are shielded from public debate, even in Multidisciplinarios, 1999). a context of widespread support for reform. lLBJl 10. United States Library of Congress, Country Study: Bolivia. Online. Available: http://countrystudies. us/bolivia/. Accessed: April 15, 2004.

NOTES 11. George Gray-Molina, Ernesto Pérez de Rada, and Ernesto Yáñez, “La economía política de las reformas institucionales en Bolivia,” IDB Working Paper R-350 1. Merilee S. Grindle, Audacious Reforms: Institutional (Washington: IADB, 1999). Invention and Democracy in Latin America (Baltimore: Johns Hopkins University Press, 2000). 12. Ibid.

LBJ JOURNAL OF PUBLIC AFFAIRS 58 DESIGNING REFORMS FALL 2004

13. Jean-Paul Faguet, “Decentralization and Local Gov- Dickovick, J. Tyler. “Centralism and ‘Decentralization’ ernment in Bolivia: An overview from the bottom in Unitary States: a Comparative Study of Peru and up,” Working Paper No. 29 (London: London School Senegal,” Journal of Public and International Affairs, of Economics, 2003). vol. 14 (Spring 2003). 14. Blanes, La descentralización en Bolivia. Faguet, Jean-Paul. “Decentralization and Local Govern- 15. Jean-Paul Faguet, “The Determinants of Central vs. Lo- ment in Bolivia: An Overview from the Bottom Up.” cal Government Investment: Institutions and Politics Working Paper No. 29. London: London School of Matter,” Working Paper Series No. 02-38 (London: Economics, 2003. London School of Economics, 2002). _____. “The Determinants of Central vs. Local Govern- 16. Grindle, Audacious Reforms; Gray-Molina et al., “La ment Investment: Institutions and Politics Matter.” economía política.” Working Paper Series No. 02-38. London: London School of Economics, 2002. 17. Some background information on the Peruvian process has been obtained through interviews in Falleti, Tulia. “Of Presidents, Governors and Mayors: The July-August 2004. Three key sources used here are Politics of Decentralization in Latin America” (paper Johnny Zas Friz, formerly a senior consultant with presented to the Latin American Studies Association PCM’s design team, Hillman Farfán, representative Conference, March 2003). of the Ministerio de Economía during the design Finot, Ivan. “Decentralization and Participation in Latin phase, conversations with Congress’ decentralization America: An Economic Perspective.” Cepal Review, committee, and Luis Pacheco, former consultant at no. 78 (December 2002). CND, 2002-2004. Gray-Molina, George, Ernesto Pérez de Rada, and Er- 18. Manuel Dammert, “La descentralización en el Perú nesto Yáñez. “La economía política de las reformas a inicios del siglo XXI: de la reforma institucional al institucionales en Bolivia,” IDB Working Paper R-350 desarrollo territorial,” Serie Gestión Pública, No. 31 (Washington: IADB, 1999) (Santiago, Chile: CEPAL, 2003). Grindle, Merilee S. Audacious Reforms: Institutional Inven- 19. Ibid.; Johnny Zas Friz Burga, La insistencia de la vol- tion and Democracy in Latin America. Baltimore: Johns untad: El actual proceso de descentralización política y sus Hopkins University Press, 2000. antecedentes inmediatos (1980-2004) (Lima: Defensoría International Monetary Fund. “Bolivia: Poverty Reduc- del Pueblo/PRODES, 2004). tion Strategy.” Online. Available: http://www.imf. 20. Zas Friz interview. org. Accessed: April 15, 2004. 21. Grindle, Audacious Reforms. Litvack, Jennie, Junaid Ahmad, and Richard Bird. Rethink- ing Decentralization in Developing Countries. Washing- ton: World Bank, 1998.

WORKS CITED Nelson, Joan. Reforming Health and Education: The World Bank, the IDB and Complex Institutional Change. Wash- ington, DC: ODC, 1999. Ardaya, Rubén and Laurent Thevoz. “Promoting Popular Participation: Lessons to be Learned from the Boliv- O’Neill, Kathleen. “Decentralization as an Electoral ian Decentralization Process.” Mountain Research and Strategy.” Comparative Political Studies, vol. 36, no. 9 Development, vol. 21, no. 3 (August 2001). (November 2003). Bird, Richard and F. Vaillancourt. “Fiscal Decentralization Ortiz de Zevallos, Gabriel, Hugo Eyzaguirre, Rosa Maria in Developing Countries: An Overview.” In Fiscal Palacios, and Pierina Pollarolo. “La economía política Decentralization in Developing Countries, eds. Richard de las reformas institucionales en el Peru: los casos Bird and F. Vaillancourt. Cambridge: Cambridge de educación, salud, y pensiones.” Working Paper University Press, 1998. R-348. Washington: Inter-American Development Bank, 1999. Blanes, José. La descentralización en Bolivia: Avances y retos actuales. La Paz: Centro Boliviano de Estudios Mul- Prud’homme, Remy. “On the Dangers of Decentraliza- tidisciplinarios, 1999. tion.” Policy Research Working Paper 1252. Wash- ington: World Bank, 1995. Bossert, Thomas. Decentralization of Health Systems in Latin America: A Comparative Analysis of Chile, Colombia, Rodríguez, Victoria. Decentralization in Mexico: From Re- and Bolivia. Cambridge: Harvard School of Public forma Municipal to Solidaridad to Nuevo Federalismo. Health, 2000. Boulder, Col.: Westview Press, 1997. Dammert, Manuel. “La descentralización en el Perú a Rondinelli, Dennis A., John R. Nellis, and Shabbir Cheema. inicios del siglo XXI: de la reforma institucional al “Decentralization in Developing Countries: A Review desarrollo territorial.” Serie Gestión Pública No. 3. of Recent Experiences.” World Bank Staff Working Santiago, Chile: CEPAL, 2003. Papers No. 581. Washington: World Bank, 1984.

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Schmidt, Gregory. “Political Variables and Governmental Urquiola, Miguel, et al. “Geography and Development in Decentralization in Peru, 1949-1988.” Journal of Inte- Bolivia.” Research Network Working Paper. Wash- ramerican Studies and World Affairs, vol. 31, no. 1/ 2 ington: Inter-American Development Bank, 2000. (Spring – Summer 1989). Willis, Eliza, Christopher da C. B. Garman, and Stephan Thévoz, Laurent. “Decentralization in Bolivia: A Model Haggard. “The Politics of Decentralization in Latin Under Construction.” In Decentralization and Devel- America.” Latin American Research Review, vol. 34, no. opment, Berne: Swiss Agency for Development and 1 (1999), pp. 7-56. Cooperation. Berne, 1999. World Bank. World Development Report 2000/2001: Attacking Torero, Máximo and Martín Valdivia. “La heterogeneidad Poverty. Washington, D.C.: World Bank, 2001. de las municipalidades y el proceso de descentral- Zas Friz Burga, Johnny. El sueño obcecado: La decentralización ización en el Perú.” Online. Available: http://www. política en la América andina. Lima: Fondo Editorial del grade.org.pe. Accessed: April 10, 2004. Congreso del Perú, 2001. United States Library of Congress. Country Study: Bo- _____. La insistencia de la voluntad: El actual proceso de descen- livia. Online: http://countrystudies.us/bolivia/. tralización política y sus antecedentes inmediatos (1980-2004). Accessed: April 15, 2004. Lima: Defensoría del Pueblo/PRODES, 2004.

LBJ JOURNAL OF PUBLIC AFFAIRS FAILURES IN U.S. DECISION MAKING IN THE MIDDLE EAST

HE WAR IN IRAQ has fueled intense debate about the use or misuse of intelligence information by the United States gov- Ternment and about the confl ict’s long-term impact. The Bush administration asserts that it made the decision to topple Saddam Hussein based on the best available intelligence and that the U.S.-led intervention will allow democracy to develop in Iraq and other Mid- dle Eastern countries. Critics argue, however, that the administration manipulated intelligence about Iraq’s weapons of mass destruction and its ties to Al Qaeda and that the war has damaged U.S. national security by infl aming anti-American hostility worldwide. Thus far, the critics have a stronger case on both counts, though only the pas- BY JORDAN TAMA sage of time will indicate whether the overthrow of Saddam Hussein sparked a democratic transformation or served primarily as a valu- Jordan Tama is a Ph.D. candidate able recruiting tool for Al Qaeda and like-minded groups. at the Woodrow Wilson School of Regardless of the outcome of this debate, deliberations on whether Public and International Affairs at or not to go to war in Iraq would have benefi ted from consideration Princeton University. He earned of an earlier U.S. intervention in the Middle East. Fifty years before a master’s degree in public affairs the 2003 invasion of Iraq, a different generation of U.S. policymak- from the Wilson School in June ers faced a decision about whether to overthrow the prime minister 2004. Previously he worked as of Iran, Mohammed Mossadegh—a decision that holds valuable Special Assistant to the Director of lessons for foreign policymaking today. In the spring of 1953, Sec- the Woodrow Wilson International retary of State John Foster Dulles and Director of the CIA Allen Center for Scholars, Lee Hamilton, Dulles advised President Dwight Eisenhower to topple Mossadegh and as a Junior Fellow at the Carn- in order to prevent a communist takeover of Iran. To support their egie Endowment for International recommendation, the Dulles brothers distorted State Department Peace. Jordan also served as a Public and CIA assessments of Iran’s political climate and ignored much Affairs Intern at the U.S. Embassy excellent reporting from the U.S. Embassy in Tehran, which had in Paris. His interests include U.S. argued against a coup attempt. While the preceding administration foreign policy, international secu- of Harry Truman had generally shared the Embassy’s perspective, rity, and European politics. the Dulles brothers tried to shape political reporting to fi t their own

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII FAILURES IN U.S. DECISION MAKING IN THE MIDDLE EAST 61 preconceived notion that the United States had to between its desire to protect its most important ally remove Mossadegh from power. Eisenhower ulti- and Western economic interests, on the one hand, mately followed their advice and approved a coup and its desire to back independent, nonaligned plot in July 1953, which by August 19 succeeded political movements in the developing world as in replacing Mossadegh with the pro-Western Mo- a bulwark against communism, on the other. The hammed Reza Shah, who subsequently asserted British argued to the administration that preventing absolute control over the country. nationalization was essential to maintain Western Eisenhower’s decision to back the coup repre- access to oil, preserve the sanctity of economic con- sented a major failure of the U.S. foreign policy tracts, and prevent a communist takeover of Iran. machinery. In backing the coup, Eisenhower and But President Truman and Secretary of State Dean his advisers failed to consider characteristics of Acheson believed that the British approach to Iran Iran’s history that made it particularly hostile to was woefully misguided and threatened to drive foreign intervention and the negative, long-term Iran into the hands of the Soviets. They decided to consequences that could result from replacing a support Mossadegh and seek a diplomatic resolu- democratically elected government with an authori- tion to the oil dispute. tarian regime. The coup developed into one of the Political reporting from the U.S. Embassy in worst mistakes of 20th century U.S. foreign policy, Tehran solidifi ed the Truman administration’s incli- as it set the stage for the 1979 Islamist revolution nation to oppose the British on nationalization. The in Iran, which continues to have harmful conse- U.S. Ambassador to Iran, Henry Grady, argued in quences for U.S. national security today. While the cables to Washington that support for nationaliza- full story of the Iraq war has not yet been written, tion was extremely deep among Iranians and that the story of this earlier U.S. intervention offers an Mossadegh was a liberal anti-communist whom important cautionary tale about unsound foreign the United States should support. In a May 7, 1951 policy decision making. telegram, he wrote, “The oil question is a symbol for the expression of the present intense nationalist drive. Iranians can for the fi rst time defy the pow- THE TRUMAN ADMINISTRATION ers that have dominated them in the past. . . . This is not by any means all bad as it also affects their The Iran crisis was born in 1951, when the liberal attitude toward Russia.” Grady also noted that the nationalist Mossadegh led a movement in the Maj- United States was popular among Iranians precisely lis, the Iranian parliament, to assert Iranian control because it had not interfered in Iranian affairs, and over its oil industry. For 50 years, the Anglo-Iranian he urged increased U.S. aid to the Iranian govern- Oil Company (AIOC) profi ted tremendously from ment: “The Iranians believe in the U.S. . . .They are a lucrative monopoly on the production and sale of genuinely disappointed that our aid has been so Iranian oil. Under its 1901 contract with Iran, AIOC slow and is as yet so small, but we can make up for kept 84 percent of its profi ts and paid no taxes to that in the months ahead. Russia is doing nothing Iran, and Iranians were not authorized to audit the for them, so time is on our side.” 4 company’s books.1 AIOC also interfered deeply in Grady was particularly critical of the British Iran’s political life, bribing politicians and placing for their imperialist approach to Iran and for their false articles in Iranian newspapers in cooperation failure to recognize the rising tide of Iranian nation- with the British government in order to promote its alism. In a July 1 telegram, he wrote: “The British interests.2 A new generation of Iranian nationalists, . . . seem to be determined to follow the old tactics led by Mossadegh, rose to power in the Majlis after of getting the government out with which it has World War II arguing that Iran should benefi t more diffi culties. . . . Mossadegh has the backing of 95 to from its oil and reduce British and AIOC infl uence 98 percent of the people of this country. It is utter in the country. This nationalist movement was folly to try to push him out.”5 Grady also argued inspired not just by AIOC’s abuses, but also by the that the British were wrong to consider Mossadegh long history of British and Russian interference a communist sympathizer, asserting in an interview in Iranian affairs, which dated back to the 19th with the Wall Street Journal that “Mossadegh’s century.3 As the Majlis unanimously approved National Party is the closest thing to a moderate nationalization in April 1951, Britain considered and stable political element in the national parlia- staging a coup to block it and sought the support ment.”6 Grady emphasized that if Mossadegh were of the United States. overthrown, the country would descend into chaos, The Truman administration found itself torn making a communist takeover more likely. Grady

LBJ JOURNAL OF PUBLIC AFFAIRS 62 FAILURES IN U.S. DECISION MAKING IN THE MIDDLE EAST FALL 2004 urged that the United States serve as a mediator oil into the economy of the free world.”13 Privately, between Britain and Iran with the goal of producing Truman was more sharply critical of the British, a negotiated settlement to the oil dispute. writing that Britain had dealt “ineptly and disas- Truman and Acheson generally adopted Grady’s trously” with the oil issue and that AIOC looked recommendations and sought to restrain the British like “a typical 19th century colonial exporter.”14 while supporting Mossadegh. Seeing Iran’s nation- Similarly, Acheson commented that “the British alist movement as part of a worldwide trend toward were so obstructive and determined on a rule-or- decolonization, they believed the United States ruin policy in Iran that we must strike out on an would risk losing infl uence to the Soviet Union if independent policy.”15 it was on the wrong side of that trend.7 Acheson The Truman administration’s policy on Iran was felt that British policy was “depressingly out of articulated in a new National Security Council (NSC) touch with the world of 1951” and that only gov- statement on June 27, 1951. The statement expressed ernments capable of proving their independence concern that British policy was creating instability in would be able to blunt Moscow’s anti-imperialist Iran and asserted: “It is of critical importance to the propaganda.8 He commented that Mossadegh United States that Iran remain an independent and represented “a very deep revolution, nationalist in sovereign nation fi rmly aligned with the free world.” character, which was The statement recom- sweeping not only Iran mended increased mil- but the whole Middle Fifty years before the 2003 invasion itary, economic, and 9 East.” Expressing the of Iraq, a different generation of technical assistance to competing pressures Iran, to “demonstrate the United States felt U.S. policymakers faced a decision to the Iranian people on the issue, Acheson about whether to overthrow the the intention of the U.S. wrote to the U.S. Em- to assist in preserving bassy in Tehran that prime minister of Iran, Mohammed its independence, and while the United States Mossadegh—a decision that strengthen the ability would support the holds valuable lessons for foreign and desire of the Ira- British where it could nian people to resist because of the impor- policymaking today. communist subversion tance of the U.S.-U.K. and pressure.”16 Subse- alliance, opposition to quently, U.S. aid to Iran nationalization “might result in the loss of Iran to rose sharply, increasing from $500,000 in 1950 to $24 the Soviets.”10 million in 1952.17 The Truman administration tactfully pressed U.S. efforts to broker a compromise between Britain to rethink its approach to Iran and to en- Britain and Iran made little progress in 1951, and in ter into negotiations with it. Assistant Secretary September Britain began privately to threaten the of State George McGhee urged British offi cials to use of military force. Around the same time, the U.S. seek a compromise that would allow for accom- Ambassador to Iran, Henry Grady, was dismissed modation to the principle of nationalization; 50-50 by Acheson because of his outspoken public sup- profi t-sharing or its equivalent; and progressive port for Iranian nationalism, which angered the Brit- Iranianization of the company.11 Truman conveyed ish. Grady was replaced by Roy Henderson, who the same message to British Prime Minister Attlee, was less enthusiastic about Iranian nationalism but emphasizing that neither Britain nor the United shared Grady’s view that the United States should States should take any steps that would “appear to not support British subversion in Iran.18 As Britain be in opposition to the legitimate aspirations of the moved warships toward Iran in the fall, Henderson Iranian people.”12 Truman also expressed in letters urged the State Department to fi rmly oppose the use to both Attlee and Mossadegh his desire to balance of force: “Our whole foreign policy for the last fi ve the concerns of Britain with those of Iran. He wrote years has been based on opposition to aggression. If to Mossadegh: “The U.S. is a close friend of both now we acquiesce in action smacking of aggression countries. It is anxious that a solution be found on the part of our ally and friend, we shall stand which will satisfy the desires of the Iranian people before the world stripped of all pretense to idealism for nationalization of their petroleum resources, and and obviously guilty of the grossest hypocrisy.”19 In that at the same time will safeguard basic British subsequent telegrams, Henderson emphasized the interests and assure the continued fl ow of Iranian strength of the nationalist movement in Iran, assert-

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII FAILURES IN U.S. DECISION MAKING IN THE MIDDLE EAST 63 ing that Mossadegh’s removal “will not eliminate serted that “if present trends continue unchecked, Iranian nationalism.”20 The Truman administra- Iran could be effectively lost to the free world.” tion urged Britain to refrain from using force, and To prevent this outcome the document stated the this pressure caused the British to abandon their United States should help Iran restart her oil indus- military plans.21 try and secure markets for her oil, which had been The U.S.-facilitated negotiations between Britain blocked by a British embargo, and should provide and Iran continued through 1952 with little progress, prompt U.S. aid to Iran to halt the deterioration of as the British and Mossadegh demonstrated a mutual its fi nancial and political situation, even if Britain unwillingness to compromise. The British refused to opposed these steps.27 But the incoming Eisenhower give up control of Iran’s oil, while Mossadegh insisted administration would have other ideas. that the nationalization could not be reversed. Even as little progress was made, Henderson held out hope that it was possible to achieve an agreement THE EISENHOWER ADMINISTRATION in January 1953, writing after one conversation with Mossadegh that “it will be easier to obtain agreement As the Eisenhower administration took office from Mossadegh than from any prime minister who in January 1953, disagreement grew within the has any likelihood of succeeding him.”22 But over the United States government about the character of course of the talks, Henderson became as exasper- Mossadegh’s government and the threat from the ated with Mossadegh as he had with the British, and Soviet-backed Tudeh Party. Henderson continued he complained to Washington about Mossadegh’s to emphasize that opposition to Mossadegh’s gov- emotional, intransigent, and erratic behavior during ernment was growing and that his regime “now negotiations.23 In February 1953, Henderson con- rested on a narrow and narrowing base of support.” cluded that Mossadegh was not seriously trying to But he also asserted that there was little evidence reach an agreement.24 the Tudeh Party had gained in popular strength Around the same time, Henderson began ex- and that Mossadegh continued to pursue a foreign pressing concern that Iran was becoming more policy of “neutrality” grounded in good relations unstable and that Mossadegh’s hold on power with the United States.28 Despite his concerns about was weakening. On November 5, 1952, he wrote political trends in Iran, Henderson argued that it in a telegram that “there has been a strengthen- would be inadvisable for the United States to back ing of a spirit of extremism in the National Front a coup because it would not gain the Shah’s backing [Mossadegh’s party],” and that “this irresponsible and would probably fail.29 extremism . . . causes us to believe that we should United States intelligence agencies provided not take it for granted that communists cannot varying perspectives on Iran during early 1953. capture the national movement.” Henderson em- A January National Intelligence Estimate stated phasized that the Soviet-backed Tudeh Party was that Iran was so unstable that the intelligence infi ltrating Mossadegh’s government and that this community could not predict what Iran’s govern- infi ltration could allow the communists to “creep ment would look like in a few months. But a State almost imperceptibly into power.” He predicted Department intelligence analysis issued the same that Mossadegh’s government would not survive month asserted that although the Tudeh Party was another year and that a successor regime would be well-organized and had increased its influence “increasingly responsive to Tudeh pressures.”25 over the past two years, Iran’s security forces could Henderson’s alarmist assessments later provided and would put down any attempt by the Tudeh to support for Eisenhower offi cials who favored sub- seize power. The State Department report noted verting the Mossadegh government. that both the army and paramilitary forces were The Truman State Department remained more trained, equipped, and advised by the United States optimistic than Henderson during its last months and that U.S. intelligence had penetrated Tudeh at in offi ce, telling him that it believed the National a very high level.30 In addition, Iran specialists in Front “will remain in power during 1953 and will the State Department and the CIA also believed actively prevent [Communists] from obtaining any that Mossadegh’s hold on power remained fairly substantial control over Iran’s affairs.”26 But Tru- strong, arguing that he maintained considerable man and Acheson shared Henderson’s frustration support in Tehran and in parts of the military. The with Mossadegh and his concern that the trends in CIA station chief in Iran continued to argue, as Iran favored the Communists. A revised Truman Truman and Acheson had done, that an attempt to National Security Council statement on Iran as- overthrow Mossadegh would be counterproductive

LBJ JOURNAL OF PUBLIC AFFAIRS 64 FAILURES IN U.S. DECISION MAKING IN THE MIDDLE EAST FALL 2004 because it would risk driving Iran into the arms of suggesting that the riot showed that “a communist the Soviets.31 takeover is becoming more and more of a possibil- But the Dulles brothers had already decided to ity,” even though the riot was not communist-ori- push for a coup by the time they took offi ce in Janu- ented, but rather was organized by a religious fi gure ary 1953. They shared the view of a minority of CIA backed by the CIA.35 To help ensure that future offi cials, such as the Middle East division chief, Ker- intelligence reports would be to his liking, Dulles mit Roosevelt, that Mossadegh had allied himself also replaced the CIA station chief in Iran, Roger with the Soviets and that a communist takeover of Goiran, who was strongly opposed to a coup, with Iran was imminent if the United States did not act someone who shared Dulles’s perspective.36 to prevent it.32 Britain had begun plotting a coup The Dulles brothers pressed their case for in June 1952, but was unable to implement the plan opposing Mossadegh at several meetings of the because Mossadegh found out about it and expelled NSC. At a March 4 meeting, John Foster Dulles all British diplomats from the country. After that told Eisenhower that Iran was moving toward failure, the British needed the United States to take a dictatorship under Mossadegh and that if he the lead on a coup effort, and the Dulles brothers were assassinated the communists might easily were eager for the U.S. to fi ll that role. take over. The latter assessment was one that the Eisenhower was con- Truman administration cerned about the pos- had shared, but Dulles sibility of a communist went further by argu- seizure of power in Iran, The Truman administration found ing on dubious grounds but he was not immedi- itself torn between its desire to that if Iran became ately convinced of the protect its most important ally communist, “there was desirability of a coup, little doubt that in short and in early 1953 he still and Western economic interests, order the other areas of hoped an accommoda- on the one hand, and its desire the Middle East, with tion could be reached some 60 percent of the with Mossadegh. Like to back independent, nonaligned world’s oil reserves, Truman, he felt that political movements in the would fall into com- Mossadegh was a non- munist control.”37 communist whom the developing world as a bulwark The Dulles brothers United States could live against communism, on the other. also exaggerated the with and that it was im- power of the Tudeh portant for the United Party, selectively draw- States to reach out to emerging leaders in the de- ing on the most alarmist assessments available to veloping world. During a National Security Council assert that Tudeh controlled a vast network that discussion of Iran, Eisenhower commented that was ready to seize power as soon as Mossadegh it was a matter of great distress to him that “we fell. Years after the coup, American diplomats and seemed unable to get some of the people in these CIA agents posted in Tehran at the time criticized down-trodden countries to like us instead of hating the use of intelligence information by the broth- us.”33 And in a March 7 meeting with British For- ers, asserting that they “routinely exaggerated eign Secretary Anthony Eden, Eisenhower stunned [Tudeh’s] strength and Mossadegh’s reliance on the Foreign Secretary by stating that he considered it.”38 In the words of Mark Gasiorowski, one of the Mossadegh “the only hope for the West in Iran” leading experts on the coup, “The fears of a com- and that he would “like to give the guy ten million munist takeover that prompted a coup . . . seemed bucks” to induce him to reach an agreement with to have originated at the highest levels of the CIA the British.34 and the State Department, and were not shared by The Dulles brothers were frustrated by Eisen- lower-level Iran specialists.”39 Most scholars believe hower’s position and lobbied him vigorously to that while a Tudeh seizure of power could not be overthrow Mossadegh. This effort included the pre- ruled out, it was at best a distant prospect, given sentation of biased information about the political the sparse Iranian support for communism and the situation in Iran that overemphasized the threat of internal divisions within Tudeh.40 a communist takeover. For instance, following a riot The growing perception of instability in Iran, near the home of Mossadegh on February 28, Allen Mossadegh’s apparent unwillingness to compro- Dulles sent Eisenhower an intelligence estimate mise with the British, and the determined lobbying

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII FAILURES IN U.S. DECISION MAKING IN THE MIDDLE EAST 65 of the Dulles brothers fi nally convinced Eisenhower that it was obvious that Mossadegh needed to be to authorize a coup on July 11, 1953. By that time, overthrown to prevent a communist takeover: “By the CIA, with the support of the U.S. Embassy in the end of 1952, it had become clear that the Mossa- Tehran, had already spent several months bribing degh government in Iran was incapable of reaching Iranian politicians to withdraw support from Mos- an oil settlement with interested Western countries, sadegh, recruiting Iranian Army offi cers to back a was motivated mainly by Mossadegh’s desire for coup, paying mobs to create chaos on the streets personal power, and had cooperated closely with of Tehran, and disseminating misinformation de- the Tudeh Party of Iran. . . . No remedial action other picting Mossadegh as a communist sympathizer than . . . covert action could be found to improve the and fanatic.41 These covert activities contributed to existing state of affairs.”47 In fact, as noted above, at sharply increasing violence and instability in Teh- the end of 1952 Henderson and other U.S. offi cials ran, perversely helping the Dulles brothers convince still believed it was possible to reach an agreement Eisenhower that the United States needed to inter- between Britain and Iran, and there is no evidence vene before the Soviet Union took advantage of the that Mossadegh was working closely with Tudeh.48 deteriorating situation. Eisenhower’s approval of Moreover, many Eisenhower administration offi - the coup allowed the CIA to implement additional cials, including the Assistant Secretary of State for elements of the plot and led to the overthrow of Middle East Affairs and the Director of the Policy Mossadegh on August 19 by a mob of CIA-funded Planning Staff, continued to believe that it would Iranian military offi cers, soldiers, and agents.42 Mo- be better to deal with Mossadegh than to attempt hammed Reza Shah used the power he gained as a to replace him.49 The post-coup CIA assessment result of the coup to name the U.S.-backed General that the overthrow was the only available and rea- Zahedi as Iran’s new prime minister, and on August sonable option does not square with the way other 22 the Shah returned to Iran from Rome as a trium- analysts viewed the situation before the coup. phant monarch. The entire plot, called Operation Ajax, cost the CIA about $20 million. One of the more striking elements of U.S. activity FAILURES IN THE FOREIGN POLICY during this period was the evolution in Henderson’s DECISION-MAKING PROCESS behavior and reporting during 1953. He became intimately involved in the coup plotting during the The changes in Embassy and CIA reporting on Iran spring and summer and at times acted like a covert in 1953 refl ected the highly politicized atmosphere CIA agent, even blatantly lying to Mossadegh in in the Eisenhower foreign policy apparatus. Al- one case to advance the coup plot.43 This conduct len and John Foster Dulles deserve the bulk of the was inappropriate for an ambassador. Addition- blame for this politicization because they demon- ally, Henderson’s later reporting about the coup strated a desire to see their subordinates conform presented a distorted picture of how and why it political assessments to their policy preferences. took place. In a lengthy October 1953 telegram on As Stephen Kinzer points out in his book All the Iranian political developments in the months lead- Shah’s Men: “Even before taking their oath of offi ce, ing up to the coup, Henderson described the August both brothers had convinced themselves beyond all 19 riots as an “obviously popular uprising” that doubt that Mossadegh must go. . . . History might “suddenly exploded spontaneously,” a ridiculous view their action more favorably if it had been assessment that completely ignored the huge CIA the result of serious, open-minded refl ection and role, of which he was a part, in fomenting and stage debate. . . . Ideology, not reason, drove the Dulles managing the coup.44 Indeed, it is very unlikely that brothers.”50 Eisenhower also deserves blame for a coup could have succeeded in 1953 without British allowing this politicization to occur, whether it or U.S. backing.45 was through inattention or because he did not see CIA reporting on Iran also became more biased anything wrong with it. during 1953, most likely as a result of pressure from The deficient foreign policy decision-making the Dulles brothers and other top offi cials. Follow- process in the Eisenhower administration fell victim ing the removal by Allen Dulles of Tehran station to a tendency highlighted by Richard Neustadt and chief Goiran, CIA reports from Tehran became more Ernest May in Thinking in Time: The Use of History for sharply critical of Mossadegh and emphasized the Decision Makers—the tendency of political advisers need for toppling him, confi rming Dulles’s views.46 to confuse factual reporting with policy advocacy. An after-action CIA report on the coup written by Neustadt and May emphasize that one of the fi rst Donald Wilbur in March 1954 falsely suggested steps in considering a policy choice should be for

LBJ JOURNAL OF PUBLIC AFFAIRS 66 FAILURES IN U.S. DECISION MAKING IN THE MIDDLE EAST FALL 2004 advisers to convey objectively to policymakers the different. In Iran, however, both administrations issue’s history. But the Dulles brothers’ story about failed to see the whole picture because their obsession the situation in Iran was fi ltered through the lens with communism blinded them to the possibility of of the brothers’ preexisting belief that the United another, longer-term trend that later became more States needed to intervene to prevent Iran from be- important—the merging of Iranian nationalism with a coming communist. They interpreted every action powerful new movement of militant and vehemently of the Tudeh Party as an indication of the danger anti-American Islamism. it posed and failed to see signs that the party was Supporters of the 1953 coup today would argue probably not as strong as they tended to believe. that it purchased 26 years of peace and stability The Eisenhower admin- in Iran and prevented com- istration’s consideration of munists from seizing power. Iran also suffered from an That much is true, but the real inadequate understanding of The growing perception cost of the coup came later, Iranian culture and history of instability in Iran, with the 1979 Islamic Revo- and misconceptions about the Mossadegh’s apparent lution and the direction Iran longer-term trends shaping took thereafter. The Shah’s the world. Neustadt and May unwillingness to repressive, pro-Western, and explain that too often policy- compromise with secular rule alienated many makers misinterpret history Iranians, and America’s sup- and misuse analogies. With re- the British, and the port for him stirred and in- spect to Iran, U.S. policymak- determined lobbying creased Iranian resentment of ers needed to have understood the United States. This resent- that Iran’s history of frequent of the Dulles brothers ment boiled over in the 1979 and oppressive intervention fi nally convinced revolution, which produced by Britain and Russia made Eisenhower to authorize a radical Islamist government the Iranian people particularly that has probably done more nationalistic and resistant to a coup on July 11, 1953. to undermine U.S. interests outside interference in their than any other current gov- internal affairs. Moreover, ernment in the world. Today Iran’s nationalist movement gained strength from there is ample evidence of Iranian involvement in the worldwide anti-colonial movement taking place providing funding, training, and other assistance in the 1950s. The Truman administration displayed to militant groups like Hezbollah and Al Qaeda a keen awareness of this historical trend, as Truman that perpetrate acts of terrorism against the United and Acheson believed that the United States needed States and its interests and violently oppose a peace to support countries such as Iran that were seeking process between Israel and the Palestinians.51 independence from colonial powers. Additionally, Neustadt and May emphasize in Thinking in Truman and Acheson recognized the deep-seated Time that policymakers should analyze issues by character of Iranian nationalism and did not think breaking them down into elements that are known, that replacing Mossadegh would tame that power- unknown, and presumed. The Truman and Eisen- ful force. The Eisenhower administration, on the hower administrations both knew that the Soviet other hand, viewed Iran not as a country with a Union posed a threat to American interests, and unique history and special character, but rather as the Eisenhower administration presumed that the a key pawn in a global battle against communism. Soviets would soon attempt to seize power in Iran. Its attitude was that the United States needed to What neither administration knew was that 40 prevent a Soviet takeover by installing its own client years later the global struggle against communism government fi rst. would be over and the United States would be bat- This emphasis on preventing the spread of commu- tling new enemies with a radical Islamist agenda nism was understandable considering the world cli- whose infl uence today can be traced in part to the mate of the early 1950s, when the Cold War was in its fallout of the 1953 coup in Iran that was sponsored tense, early stages and the United States was fi ghting by the United States.52 It might be asking too much communist forces on the Korean peninsula. Indeed, to claim that Truman or Eisenhower should have the Truman administration was just as concerned foreseen this unfortunate outcome, but the critical with communism as the Eisenhower administration, lesson is that policymakers must take into account although its policy for dealing with it was somewhat possible unintended consequences of their deci-

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII FAILURES IN U.S. DECISION MAKING IN THE MIDDLE EAST 67 sions. The unpredictability of those consequences 9. Ibid., pp. 89-93. should make leaders pause before perpetrating the 10. Telegram from the Secretary of State to the Embassy overthrow a foreign government. in Iran, March 17, 1951, FRUS, Iran, 1951-1954, pp. This lesson would have been of great value to 25-26. U.S. policymakers in 2002 and 2003 as they con- 11. Memorandum of Conversation between the British sidered whether to use force to overthrow Saddam Ambassador to the United States and the Assistant Hussein. More specifically, Bush administration Secretary of State (McGhee), April 17, 1951, FRUS, offi cials should have given greater consideration to Iran, 1951-1954, pp. 30-35. the possibility that going to war in Iraq would foster 12. Letter from President Truman to Prime Minister the spread of Islamist terrorism, rather than reduce Attlee, May 31, 1951, FRUS, Iran, 1951-1954, pp. 59- it. At the very least, they should have recognized 61. that the long-term consequences of toppling Hus- 13. Ibid.; Letter from President Truman to Prime Minister sein were uncertain and that there was a signifi cant Mossadegh, June 1, 1951, FRUS, Iran, 1951-1954, pp. probability that they would be negative for the 61-62. United States. 14. Painter, “The United States, Great Britain, and Mos- Just 18 months after the toppling of Saddam sadegh,” p. 2. Hussein, the long-term impact of the war remains 15. Kinzer, All the Shah’s Men, p. 145. to be seen, but there is ample evidence that the Bush administration’s decision-making process on 16. Statement of Policy Proposed by the National Security Council, June 27, 1951, FRUS, Iran, 1951-1954, pp. Iraq suffered from some of the same problems as 71-76. that of the Eisenhower administration on Iran—the politicization and manipulation of intelligence 17. Taheri, Nest of Spies, p. 27. information and the failure to consider adequately 18. Kinzer, All the Shah’s Men, pp. 117. the potential negative long-term consequences of 19. Telegram from the Ambassador-Designate in Iran U.S. action. Let us hope that 50 years from now the (Henderson) to the Department of State, September impact of the Iraq war will be more positive than 27, 1951, FRUS, Iran, 1951-1954, pp. 177-178. that of the fi rst major U.S. intervention in the Middle 20. Telegram from the Ambassador in Iran (Henderson) East and that policymakers will learn from it and to the Department of State, October 22, 1951, FRUS, other past mistakes. Iran, 1951-1954, pp. 236-241. lLBJl 21. Kinzer, All the Shah’s Men, p. 112-113. 22. Telegram from the Ambassador in Iran (Henderson) to the Department of State, January 3, 1953, FRUS, NOTES Iran, 1951-1954, pp. 577-580. 23. Telegram from the Ambassador in Iran (Henderson) 1. Amir Taheri, Nest of Spies: America’s Journey to Disaster to the Department of State, January 17, 1953, FRUS, in Iran (London: Century Hutchinson, 1988), p. 11. Iran, 1951-1954, pp. 621-627. 2. Stephen Kinzer, All the Shah’s Men: An American Coup 24. Kinzer, All the Shah’s Men, p. 156. and the Roots of Middle East Terror (Hoboken, NJ: John Wiley & Sons, Inc., 2003), pp. 96-97, 107. 25. Telegram from the Ambassador in Iran (Henderson) to the Department of State, November 5, 1952, FRUS, 3. Ibid., pp. 30-82. Iran, 1951-1954, pp. 513-517. 4. Telegram from the Ambassador in Iran (Grady) to the 26. Telegram from the Acting Secretary of State to the Department of State, May 7, 1951, in Foreign Relations Embassy in Iran, October 31, 1952, FRUS, Iran, 1951- of the United States, 1952-1954, vol. X, Iran, 1951-1954, 1954, pp. 508-510. pp. 46-47 (hereinafter FRUS, Iran, 1951-1954, followed by page numbers). 27. Statement of Policy Proposed by the National Security Council, November 20, 1952, FRUS, Iran, 1951-1954, 5. Telegram from the Ambassador in Iran (Grady) to pp. 529-534 . the Department of State, July 1, 1951, FRUS, Iran, 1951-1954, pp. 79-81. 28. Telegram from the Ambassador in Iran (Henderson) to the Department of State, April 24, 1953, Iran Politi- 6. Kinzer, All the Shah’s Men, p. 93. cal Diaries, 1881-1965, vol. 14: 1952-1965 (1997), pp. 7. Taheri, Nest of Spies, p. 22. 79-102. 8. David Painter, “The United States, Great Britain, and 29. Telegram from the Ambassador in Iran (Henderson) Mossadegh,” Institute for the Study of Diplomacy, Case to the Department of State, March 6, 1953, FRUS, Iran, 332, Part A, p. 5. 1951-1954, pp. 701-702.

LBJ JOURNAL OF PUBLIC AFFAIRS 68 FAILURES IN U.S. DECISION MAKING IN THE MIDDLE EAST FALL 2004

30. Painter, “The United States, Great Britain, and Mos- 49. Kinzer, All the Shah’s Men, p. 164. sadegh,” pp. 12-17. 50. Ibid., p. 208. 31. Mark Gasiorowski, “The 1953 Coup d’Etat in Iran,” 51. On Iranian assistance to Al Qaeda, see National Com- Journal of Middle East Studies, No. 19 (1987), p. 22. mission on Terrorist Attacks upon the United States, 32. Painter, “The United States, Great Britain, and Mos- The 9/11 Commission Report (New York: W.W. Norton sadegh,” p. 16. & Co., 2004), pp. 240-241. 33. Memorandum of Discussion at the 135th Meeting of 52. Kinzer, All the Shah’s Men, pp. 203-204. the National Security Council, March 4, 1953, FRUS, Iran, 1951-1954, pp. 692-701.

34. Kinzer, All the Shah’s Men, p. 158. WORKS CITED 35. Ibid., p. 157. 36. Gasiorowski, “The 1953 Coup d’Etat in Iran.” Burrell, R.M., ed. Iran Political Diaries, 1881-1965. 14 vol- umes. Archive Editions, 1997. 37. Memorandum of Discussion at the 135th Meeting of the National Security Council, March 4, 1953. Central Intelligence Agency. Clandestine Service History: Overthrow of Premier 38. Kinzer, All the Shah’s Men, pp. 205-206. Mossadegh of Iran, November 1952-August 1953. Report 39. Gasiorowski, “The 1953 Coup d’Etat in Iran,” p. 22. prepared by Donald Wilbur. 40. Ibid., p. 24. Gasiorowski, Mark. “The 1953 Coup d’Etat in Iran.” Journal 41. Donald Wilbur, Clandestine Service History: Overthrow of Middle East Studies, no. of Premier Mossadegh of Iran, November 1952-August 19 (1987). 1953, CIA report (March 1954), published on nytimes. com (June 18, 2000). Kinzer, Stephen. All the Shah’s Men: An American Coup and the Roots of Middle East 42. Kinzer, All the Shah’s Men, pp. 160-188. Terror. Hoboken, NJ: John Wiley & Sons, Inc., 2003. 43. Ibid., p. 176. Painter, David. The United States, Great Britain, and Mossa- 44. Telegram from the Ambassador in Iran (Henderson) degh. Institute for the Study of Diplomacy Case 332. to the Department of State, October 28, 1953, Iran Political Diaries, vol. 14, pp. 103-120. Taheri, Amir. Nest of Spies: America’s Journey to Disaster in Iran. London: Century Hutchinson, 1988. 45. Gasiorowski, “The 1953 Coup d’Etat in Iran,” p. 23. U.S. Department of State. Foreign Relations of the United 46. Kinzer, All the Shah’s Men, p. 164. States, 1952-1954. Volume X, 47. Wilbur, Clandestine Service History, p. iii. Iran, 1951-1954. Washington, D.C.: U.S. Government 48. Gasiorowski, “The 1953 Coup d’Etat in Iran,” pp. Printing Offi ce, 1989. 22-24; Kinzer, All the Shah’s Men, pp. 205-206.

LBJ JOURNAL OF PUBLIC AFFAIRS IN SUPPORT OF DEMOCRATIZATION:

FREE TRADE UNIONS AND THE DESTABILIZATION OF AUTOCRATIC REGIMES

HE THEORY OF “DEMOCRATIC PEACE” provides that free and open societies, in the form of liberal democracies, do not Tgo to war with one another.1 Since the Wilson administra- tion, spreading democracy around the world to ensure peace has been a pillar of American foreign policy. Today, “encouraging free and open societies on every continent” is a cornerstone of the Bush administration’s national security strategy.2 The Bush approach to achieving democratization has been de- scribed as “defi ant unilateralism” and “an evangelical, militarist BY JOSEPH SIEDLECKI agenda.”3 The neoconservative foreign policy espoused by many members of the Bush administration seeks to promote American Joseph Siedlecki earned a bachelor’s ideals—such as democracy—by exerting hard power. of science in economics from the The exertion of hard power by the current administration coincides Wharton School at the University of with its loss of soft power.4 If the Bush administration hopes to suc- Pennsylvania and will graduate in ceed in the spreading democracy, it should consider a more nuanced May 2005 with a master’s degree in approach. As an aspect of soft power, the United States should dra- public affairs from the LBJ School. Joe matically increase support for labor movements and free trade unions has worked for the U.S. Department in developing countries. Special attention should be paid to the plight of State’s International Labor Affairs of labor in countries ruled by autocratic regimes. With the support and Offi ce and Deloitte’s Human Capital international recognition afforded by American diplomatic efforts, the Advisory Services Consulting Group. role of labor movements in bringing together diverse peoples to exert He is currently employed by the Ray political pressure on autocratic regimes will be strengthened and will Marshall Center for the Study of result in a new wave of grass-roots democratization. Human Resources, where his research In order to explain how revitalized and refocused labor diplomacy interests include labor movements, can support the Bush administration’s goal of democratization, this unions, democratization, diplomacy, paper will describe the natural relationship of unions to autocracies and trade. He would like to thank and democracies. It will also review the history of labor involvement General Montgomery C. Meigs and in destabilizing autocratic regimes and outline the political, as op- Melissa Freed for editorial assistance posed to the economic, role of unions. Additionally, the involvement and constructive feedback used to of the American government and international organizations in sup- strengthen his argument.

LBJ JOURNAL OF PUBLIC AFFAIRS 70 IN SUPPORT OF DEMOCRATIZATION FALL 2004 porting labor movements in foreign countries will ganized and consolidated representative organiza- be examined, and suggestions will be presented for tions in society.”8 Most have been in existence, in strengthening American diplomacy in the interna- some form, for decades prior to becoming political tional labor arena. actors in the fi ght for democracy. Weathering a se- ries of shifting economies, political environments, and periods of outright repression, labor unions UNIONS AND AUTHORITARIAN REGIMES continue to function. The internal organization of unions is a major source of their staying power. Unions are a natural enemy of authoritarian re- Made up of both “locals” and “federations,” unions gimes. Former Secretary of Labor Ray Marshall tend to spread power and leadership across a rela- writes, “unions are an independent source of power tively wide spectrum, from the various workplaces and almost always bring together groups that to- to federation headquarters. While it is relatively talitarian groups seek to keep separate.”5 Likewise, easy for an autocratic regime to arrest and depose Edmund McWilliams, former of leaders at the national or director of the U.S. Depart- federation level, shop-floor ment of State’s International History provides no unionism and local leadership Labor offi ce, argues that “trade are harder to identify and neu- unions have bridged ethnic, other mass-based tralize. Additionally, unions tribal and religious cleavages.”6 organization (free trade sometimes claim to speak for For example, labor unions in an entire working class and Spain brought together Catho- unions) with such have shown the ability to gal- lics, Protestants, and Muslims broad social appeal. vanize support beyond their as well as Basques, Catalonians, formal membership. In sum- and Castilians. In Nigeria, the mary, regardless of repressive unions bridged the gap between Christians and actions taken by some regimes, the ability of labor Muslims as well as historically antagonistic tribes. to mobilize protest still exists. In Poland, Solidarity provided a meeting space for Finally, labor unions have the tendency to diffuse workers, farmers, and intellectuals, both Jewish wealth and power to a broader audience than an au- and Catholic.7 South African trade unions broke thoritarian regime might desire.9 Aside from basic the color barrier long before other sectors of civil demands for democratic rule, unions often lobby society. In the former Yugoslavia, various ethnic for more equitable pay, better training and educa- groups toiled together for the same union goals tion programs, and general improvements in social and struck together for the same democratic ideals. welfare. Successful negotiation of such demands by History provides no other mass-based organization organized labor can damage the monopoly of power with such broad social appeal. and wealth that a dictatorial regime requires. When such diverse factions of society come together in collective organization, it becomes diffi cult for authoritarian regimes to formulate an UNIONS AS NATURAL FRIEND OF DEMOCRACY adequate response. Pitting one tribe or religion against another, a tactic used by many dictators to Unions are a natural ally of liberal democracies foster disputes between potential rivals for power, because they act as models of democracy, they becomes very complex when these groups stand share the goals of free and fair economic develop- together to make consolidated, collectively deter- ment, and they often advocate for democratic rule. mined demands based on a shared economic, social, Unions have “played an important role in support- or political interest. The diffi culty in dealing with ing democracy” and “defending broader citizens’ organized mass-based movements, such as labor rights.”10 movements, often exacerbates hard-line versus First, unions are models of representation and soft-line divisions within regimes. In many cases, democracy. They are usually founded to represent some described later, internal divisions rooted in the collective desire of a mass of people, protect and disagreements over how to handle labor unrest advance basic rights and freedoms, and provide a constitute an initial step toward the destabilization political and economic voice to an entire class of of autocratic regimes. people. At their best, unions possess internal mecha- Additionally, unions and labor movements have nisms that promote debate, dispute resolution, resilience. Unions are among the “most stable, or- negotiation, and most importantly, fair elections.11

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII IN SUPPORT OF DEMOCRATIZATION 71

Few, if any, organizations practice democracy to creating a “softer dictatorship.”14 Labor unions, the extent of local unions and their representative sensing Franco’s political game, refused to settle for federations. By the very nature of the organization a partial solution and presented Navarro with a se- they belong to, free-trade unionists are democrats. ries of labor protests in 1974 and 1975 that, coupled Second, unions in developing countries and their with Franco’s death and Navarro’s subsequent loss members share the goals of free and fair economic of political support, forced his 1976 resignation.15 and social development espoused by many democ- Adolfo Suarez assumed the prime ministership and racies. As agents of economic change, unions look within months initiated a transition plan that called to secure the best working situation for the people for democratic elections within a year. Labor unrest they represent. Initiatives such as ensuring freedom subsided. Despite Suarez’s skill at negotiating, one of association, ending child labor, and fighting cannot overlook the role of the independent labor employment discrimination improve the lives of unions in forcing the hand of the government. Had members as well as assist in leveling the playing it not been for the continuous mobilization of the fi eld for international trade. trade unions, the diffi cult decision regarding how Third, unions often advocate for democratic rule. to deal with civil unrest would not have been forced While many people assume unions to be strictly onto Franco and the Spanish conservatism move- economic actors, this is not the case. In order to ment may have pushed forward. legally exist, unions require democratic protections, The Solidarity movement in Poland offers one especially the freedom of association. Thus, many of the best-documented and most memorable in- union struggles are political, coalescing around the stances of a labor union destabilizing an authoritar- promotion of free and open society and democratic ian regime. Forged in the 1980 strike at the Gdansk reform. Unions, through their political rather than shipyard orchestrated by the Worker’s Defense their economic capacity, contribute to the destabi- Committee and Committee for Free Trade Unions lization of autocratic regimes. of the Coast, the Solidarity union’s initial demands focused on workers’ rights.16 Eventually, as it be- came a general political movement, legitimized by UNIONS AND DEMOCRATIC REFORM: foreign recognition and the tacit blessing of Pope CASE STUDIES John Paul II, Solidarity demanded increased free- doms and a more open civil society. In 1989 the The role of labor movements is not specifi c to any communist leadership of Poland agreed to some de- one region, but has been felt broadly in democrati- gree of democratization, in the form of limited free zation efforts across the globe. This section exam- elections, which led to wider democratic reforms ines the role of labor in the fall of autocratic regimes over the next several years.17 The overwhelming in Europe, Africa, and Latin American and analyzes electoral support for Solidarity in the competitive the common characteristics of those cases. parliamentary elections of 1991 marked the con- clusion of the Communist monopoly on political EUROPE power in Poland. In Europe, labor movements were instrumental in Labor unrest was a critical factor in exposing the destabilization of autocratic regimes in Spain the weakness of the Communist regime during (1977), Poland (1989), and Czechoslovakia (1990). Czechoslovakia’s “velvet revolution” in 1990. While Many accounts of the democratization of Fran- the government’s repression of student demon- coist Spain begin with the death of Franco in 1975. strations sparked widespread protests, it was a These accounts understate the crucial role that general strike on November 27 that “telegraphed labor unions played in the years leading up to the the defection of the workers from the Communist transition to democracy.12 In response to political leadership” and “induced the previously infl exible activism of independent unions in the late 1960s, Communist rulers to abandon their resistance to hardliners in the Franco government pursued a change.”18 By June of 1990 fully competitive par- policy of labor repression. However, the repression liamentary elections ushered in an era of political failed to neutralize union activity. On the contrary, freedom. While not as crucial an actor as in Spain it contributed to an unprecedented level of labor or Poland, the labor unions in Czechoslovakia, unrest, marked by an astounding 1,500 organized leading the organizational effort associated with the strikes in 1970.13 Trying another approach, Franco general strikes, were instrumental in destabilizing appointed Carlos Arias Navarro, a moderate, to the the Communist regime and pushing the country post of prime minister in 1973 and charged him with toward democracy.

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AFRICA the political crisis by respecting the democratic and In Africa, labor movements were critical actors sovereign will of the people as expressed in the in ending the apartheid regime in South Africa. last presidential elections. All democratic struc- Additionally, labor unions brought international tures must be restored.”24 The government reacted attention to the struggle for democracy in Nigeria harshly, arresting labor leaders and replacing them in the 1990s. with their own appointees, effectively slowing the The fi rst democratic elections in South Africa, movement.25 While unsuccessful in the initial de- held in April 1994, were largely a result of the ongo- stabilization of the regime, the union efforts helped ing work of the African National Congress (ANC). to draw international attention to the Nigerian But overlooking the role of the Congress of South struggle for democracy. This exposure and subse- African Trade Unions (COSATU) would be folly. quent pressure applied by international institutions, From 1979 to 1994, union density grew from ap- non-governmental organizations, and foreign dip- proximately 15 percent of the working population lomats contributed to the eventual transition from to over 56 percent, with the highest rate of growth dictatorship to nascent democracy, signaled by free amongst black workers.19 Union membership elections held in 1998. not only provided black workers with a voice, it also exposed them to democratic structures. The LATIN AMERICA exposure to democratic structures, the growing Finally, as Ruth Collier and James Mahoney have numbers of unionists, and formal partnership with noted, labor played a great role in the shift from au- the ANC were critical thoritarian democratic factors in the shift of rule in Latin America. COSATU from an in- Unions are a natural ally of liberal Peru (1978), Argentina dustrial union to a po- (1983), and Chile (1990) litical force. Throughout democracies because they act as provide solid examples the 1980s the unions models of democracy, they share of the transitional pow- associated with CO- the goals of free and fair economic er of organized labor. SATU staged numerous The labor movement protests, strikes, and development, and they often in Peru played an im- demonstrations.20 The advocate for democratic rule. portant role in the fall failure of the govern- of two different author- ment to contain such itarian regimes over the action through traditional tactics of repression course of fi ve years.26 Persistent labor unrest pre- forced “a choice: intensify the repression toward cipitated the fall of General Velasco’s government the labor movement and risk alienating capital in 1975. Upon assuming power in 1976, General with no guarantee of eliminating mobilization Morales Bermudez was also confronted by a labor from below or turn toward more fundamental po- movement dedicated to the end of authoritarian litical reform.”21 In 1989 President F.W. De Klerk rule in Peru. Throughout 1976 a continuous string chose the latter path and signaled his intention to of labor rallies and mobilizations orchestrated by reform apartheid. This reform eventually led to the the General Confederation of Peruvian Workers democratic elections of 1994. Clearly, labor unions consumed the government. The union action culmi- were instrumental in destabilizing the apartheid nated in “the single most important event in trigger- government. In fact, Nelson Mandela writes in his ing the Peruvian democratic transition,” a widely biography of crucial contributions of the COSATU observed general strike on July 19, 1977 that called to the struggle against authoritarian rule and apart- for “basic democratic freedoms” in addition to ex- heid in South Africa.22 pansion of workplace rights.27 The strike succeeded In Nigeria in 1993, General Ibrahim Babangida in forcing Bermudez to announce a timetable for annulled the results of a presidential election and a return to civilian rule. Labor protests, including appointed General Sani Abacha to power.23 Abacha another general strike, continued until democratic abolished all democratic institutions and installed a elections took place in June 1978. military dictatorship to rule Africa’s most populous Conventional wisdom dictates that the Argen- country. Within a year, the National Union of Pe- tine military dictatorship of the 1970s collapsed troleum and Natural Gas Workers (NUPENG) and as a result of the ill-fated invasion of the Falkland the National Labor Congress (NLC) organized a Islands and subsequent defeat at the hands of general strike calling on the government to “resolve the British.28 While this is certainly the case, we

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII IN SUPPORT OF DEMOCRATIZATION 73 can dig deeper to determine the conditions that force in July 1983 by leading a massive protest that caused the generals to make such a disastrous called for “the participation of all popular organiza- decision in the fi rst place. Some analysts have tions” in “a call for the return to democracy.”31 A argued that “labor protest contributed to a divi- national strike in the winter of 1984 and “days of sion within the military between hardliners and protest” in September 1985 followed. By 1986, the softliners” that the invasion of the Falklands was union-led opposition had grown into a multi-party “intended to overcome” by stoking nationalist organization that became known as the Coalition fi res in the populace.29 In 1981 the General Con- of Parties. The Coalition of Parties, an organization federation of Workers (CGT) and the Union of owing its existence to the courageous role of the Argentine Workers (CUTA) openly opposed the labor unions, directed the successful 1988 campaign military regime and conducted a series of general against Pinochet’s ratifi cation. By December of 1989, strikes that exposed the government’s inability to democratic elections were held and the transition control organized workers and culminated in the to democracy was complete. resignation of the moderate General Viola. Viola’s ouster led to the rise of hardliner General Galtieri. COMMON CHARACTERISTICS IN Galtieri’s ascension to the presidency, facilitated UNION-LED DESTABILIZATIONS by his promise to crack down on unions, further A number of common characteristics unite the ef- exposed the divisions within the military regime forts of unions described in these cases. First, in each that were exacerbated by the issue of dealing with case labor unions, traditionally viewed as economic organized labor unrest. Despite changes to labor agents, made political demands, insisting that law intended to weaken unions, labor demonstra- governments be accountable to their citizenry and tions continued through 1982. Internal debate make progress toward democracy. Second, each regarding how to deal with the unrest intensifi ed, case displayed the ability of labor unions to gal- and in an effort to overcome the divisions, Galt- vanize broad-based support and mobilize masses ieri proposed the Falklands invasion to unite the of people including members and nonmembers. population in a nationalist cause. The invasion Finally, in the majority of cases, labor unions desta- was, then, a response by a regime in trouble and bilized autocratic regimes without any signifi cant unable to control popular protest. The gamble external support. Lacking explicit international failed, and soon afterward the military regime an- support (except in the cases of Poland, Nigeria, nounced that general democratic elections would and to some extent Chile), labor unions organized be held in the autumn of 1983. As some analysts themselves and remained defi ant in the face of have argued, and historical review supports, the repressive regimes. The unions receiving external continuous labor unrest in Argentina contributed support from the likes of the United States and to the creation of an environment that forced the International Labor Organization did so in the dictatorship to pursue a self-destructive course. later stages of their destabilization efforts, hav- The democratization of Chile post-Pinochet fol- ing established their organization and missions lows a slightly different path.30 Rather than acting without input from external sources. To have ac- as one of the primary destabilizing factors leading complished regime changes without signifi cant to a transition, labor unions worked to organize op- explicit support and without external organiza- position to ensure the loss of Pinochet in the 1988 tions or governments bestowing legitimacy on referendum on his continuation in power. Pinochet their struggles is truly remarkable. assumed power in 1973, and harshly repressed the Common characteristics of the regimes them- labor movement. The unions, however, refused to selves or the political environment also exist. The give in, and initiated a series of strikes and protests majority of regimes were either initially ambivalent that swept through the mines, ports, and factories toward organized labor or outright hostile, but all between 1977 and 1979. Recognizing that outright eventually grew to disfavor the union activity and repression failed to contain working-class protest, employed repressive labor policies. The populist Pinochet called for a “constitutional project” that character of the Peruvian dictatorship and initial required plebiscite or referendum elections on support for and by the working class provides his rule in 1980 and 1988. Pinochet won the 1980 the lone exception, but in time an antagonistic plebiscite, and the labor movement immediately relationship between the government and the began organizing for the next election. The labor unions developed.32 In almost all of the cases, the movement, led by the Confederation of Copper labor question—to crack down on labor unrest or Workers, secured its role as a vanguard political to allow it—exacerbated existing hard-line versus

LBJ JOURNAL OF PUBLIC AFFAIRS 74 IN SUPPORT OF DEMOCRATIZATION FALL 2004 soft-line divisions within the regimes. The diffi culty coordinating Department of Labor/State operations in handling the labor situation contributed to the and beginning constructive engagement with the destabilization of the regimes by widening already International Labor Organization. But these efforts existing internal divisions. were coupled with a shift of the concentration of the program away from “political labor” and toward an “economic-labor emphasis.”36 The eco- PROMOTION OF FREE TRADE UNIONS ABROAD nomic-labor emphasis centered on the promotion of fundamental labor standards worldwide as part Mechanisms do exist for promoting labor move- of a concerted U.S. effort to “put a human face on ments in foreign countries. This section briefly the global economy” and to create a “level playing outlines the historical and current roles the United fi eld” in international trade for the benefi t of both States government and the International Labor Or- American business and American workers.37 The ganization play in supporting free trade unions. Clinton focus on globalization and the economy overlooked the potential political gains of support- HISTORICAL AMERICAN ENGAGEMENT ing labor movements in foreign countries. The labor attaché program at the U.S. Department The Bush administration, “led by ideologues con- of State represents the primary diplomatic avenue vinced that unions distort the benefi cent workings of for supporting foreign labor movements. Estab- the market and interfere with important government lished in 1943, the program was designed to “go policies, including the war on terrorism,”38 continues beyond the boundaries of traditional diplomacy to push an economic-labor policy, all but discounting and complement the work of embassy political and the political benefits of engaging labor movements. economic offi cers by developing contacts with . . . The Bush administration’s frequent clashes with the workers and their trade unions.”33 The Cold War American labor movement over trade agreements and gave purpose to the attachés as they focused their its reluctance to sign International Labor Organization efforts on minimizing communist infl uence in labor conventions signal an unwillingness to support the rights movements around the world. The anticommunist of workers across the globe. The Bush administration mission made it diffi cult for the United States to ful- is either unaware of potential political benefi ts of labor ly involve itself in union efforts against totalitarian diplomacy or it views the economic cost to American governments since a number of the unions involved corporations to be greater than the political benefi ts. The were suspected of, and in some cases did have, ties recent inclusion of “encouraging . . . free trade unions” to communist parties. Additionally, a number of as part America’s “forward strategy of freedom”39 in the union-led efforts described above took place President Bush’s 2004 State of the Union address may when United States foreign policy favored stability signal a change of heart, but no visible action has yet to in certain countries or regions over true promotion be taken diplomatically, cooperatively with American of democracy, providing another explanation for unions, or in collaboration with international institu- the relative lack of American infl uence. There are tions. At best, the Bush administration has provided some exceptions, such as strong American support slightly increased funding to the National Endowment for Poland’s Solidarity union, but overt diplomatic for Democracy, a Washington, D.C.-based nonprofi t or- connections to democracy-promoting unions are ganization whose mission is to “strengthen democratic hard to fi nd in the relevant literature. institutions around the world through nongovernmental efforts” by providing grants and technical assistance to RECENT AND CURRENT AMERICAN ENGAGEMENT organizations that support free trade unions and other The end of the Cold War saw the decline in per- democratic institutions abroad.40 ceived importance of labor diplomacy in Ameri- can foreign affairs. Administrations eliminated INTERNATIONAL FRAMEWORK labor programs at USIA and USAID. The number Founded in 1919, the International Labor Organiza- of labor attachés within the State Department tion, the only surviving major creation of the Treaty decreased by over 50 percent.34 Additionally, of Versailles, became the fi rst specialized agency of the Offi ce of the Secretary of State/International the UN in 1946.41 The ILO seeks the promotion of Labor Affairs was abolished and the remnants social justice and internationally recognized human of the program appeared several levels down in and labor rights by formulating basic, minimum the State Department bureaucracy.35 The second international labor standards in the form of conven- Clinton administration took steps to reinvigorate tions and recommendations that each member state the labor program by slightly increasing staffi ng, is encouraged “to respect, promote and realize.”42

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Upon adoption of the Declaration on Fundamental conventions in just one issue area, relating to the Principles and Rights to Work in June 1998, the elimination of forced labor.44 ILO focused its efforts on the promotion of a set of four core worker rights areas, including freedom of association and the right to collective bargaining, RECOMMENDATIONS elimination of forced and compulsory labor, aboli- tion of child labor, and ending of discrimination in Unions are political actors. Unions and labor the workplace. movements have destabilized and can continue to The ILO is designed as a nonpartisan and destabilize autocratic regimes. If democratization is nonpolitical organization lacking enforcement a goal of U.S. foreign policy, then support for labor mechanisms. It operates under the United Nations’ movements should be an integral part of the policy. sovereignty and thus requires an invitation by a sov- To hasten the destabilization of autocratic regimes ereign state before it provides assistance to the gov- and speed the spread of democracy, the United ernment, businesses, or unions of the country. As a States government should dramatically strengthen result, the ILO has been less involved in supporting its international labor diplomacy. The focus should dissident labor movements than might be expected. be on promoting the core principles and rights at The public admonishment of governments and the work as described in the 1998 ILO Declaration with critiquing of the annual special attention paid to labor rights progress re- the freedom of associa- ports that member states tion. This paper makes the submit presents the only In almost all of the cases, the following specifi c recom- true method of interven- labor question—to crack down mendations: tion available to the ILO. on labor unrest or to allow The United States should The “public shaming” reestablish a true working re- approach has had mixed it—exacerbated existing hard- lationship with the Interna- results, bringing interna- line versus soft-line divisions tional Labor Organization. tional attention and some Ratifying all of the con- level of legitimacy to the within the regimes. ventions pertaining to the Nigerian struggle, but be- four core labor standard ing ignored in other coun- areas laid out in the 1998 tries such as China and Sudan. Declaration on Fundamental Principles and Rights The ILO operates in a complex international at Work is a start. But the United States must also environment, often overshadowed by international work to strengthen the monitoring and enforcement fi nancial institutions such as the World Bank and mechanisms of the ILO. Most important would be the International Monetary Fund that possess not the addition of a formal mechanism to recognize only much larger budgets, but enforcement mecha- labor unions, thus legitimizing the organization nisms as well. As a result, the ILO and its demands and, in turn, their struggle. Gaining legitimacy in an tend to take a back seat in the development of the international forum provides some level of protec- structural adjustment programs. tion for the unions. If a regime is openly hostile or The historical relationship between the United moves to arrest or kill members, then the interna- States and the ILO has been largely dysfunctional. tional community, having legitimized the union and While a partner in the initial creation of the organi- thus its struggle, would be compelled to react. zation, the United States has kept its distance from The Bush administration should increase the budget any sort of concrete, collaborative relationship. In and staffi ng levels at the State Department’s Bureau of 1977 the United States withdrew from member- Democracy, Human Rights and Labor. In particular, ev- ship in protest of the perceived focus of the ILO ery embassy in the developing world should have a on providing assistance to developing countries in well-trained, full-time labor attaché whose primary the Soviet sphere of infl uence.43 American involve- responsibility is to establish contacts with local la- ment upon reentry was uninterested and at times bor leaders and provide them with the diplomatic hostile, with the United States refusing to sign support their anti-autocratic movement requires. almost all conventions generated by the organiza- Placing a labor attaché in every embassy enlivens tion. Although the United States helped draft the and emboldens unions, warns autocratic regimes, 1998 Declaration on Fundamental Principles and and sends the message that the administration is Rights at Work, the government has ratifi ed the serious about international labor diplomacy.

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The Bush administration should increase funding to tration’s neoconservative foreign policy argues that nongovernmental organizations, such as the National the spread of democracy will ensure security. Some Endowment for Democracy and the American Center for commentators have gone so far as to state that the International Labor Solidarity, that support the creation U.S. government considers the democratization of and sustenance of free labor unions and other democratic societies more than just a means to security, but an institutions throughout the world. Additionally, re- end in itself.45 Regardless, the neoconservative ap- lationships with international organizations such proach, stressing hard power to achieve idealistic as the International Confederation of Free Trade goals, limits the tools that the Bush administration Unions (ICFTU), a confederation of national trade has at its disposal. union federations in over 150 countries, must be Employing a self-limiting, neoconservative ap- further developed. Appointing an ambassador the proach is a poor choice. Meeting the challenges of ICFTU is a start, but the U.S. government should the new, post-September 11 world requires a review also seek to support the ICFTU training, education, of all possible mechanisms for the advancement of and technical assistance services by providing ex- American national interest, defi ned by the Bush pertise and sharing knowledge. Unlike the ILO, the administration as the spread of democracy. Labor ICFTU can and does intervene in countries without unions possess broad social appeal. In addition to the invitation of the government. The ICFTU may the traditional role of economic agent, labor unions prove to be a valuable portal into anti-autocratic often speak out for democracy and galvanize mass movements and an international legitimizing forum support for political change. Supporting labor in the event that suggested reforms of the ILO are movements and unions in countries with autocratic not successful. rulers will hasten the demise of such regimes, lead- The administration should encourage the State ing the way for democratic reform and thus promot- Department’s Intelligence and Research Division and ing American security. the Central Intelligence Agency to work with the labor lLBJl attachés in each embassy to identify labor leaders in that country. Identifying and developing the leaders of future labor movements provides the United States NOTES with a powerful cadre of grass-root agitators and eventual allies in the fi ght for democratization. 1. See Spencer Weart, Never at War: Why Democracies Will The United States should include enforceable labor Not Fight One Another ((NewNew HHaven:aven: YYaleale UUnivesitynivesity PPress,ress, rights in free trade agreements and work with other re- 1998), and United Nations Development Programme, lated international organizations to promote the spread of Human Development Reports 2002: Deepening Democracy in a Fragmented World (Oxford,(Oxford, England:England: OxfordOxford UniversityUniversity democracy through labor rights, especially the freedom of press, 2002), Ch. 4, among others. association. Special efforts should be made to include the four core ILO labor standards in the clauses of 2. National Security Strategy of the United States of America, Executive Summary (September 2002). the World Bank and IMF loans. As the freedom of association spreads, so will labor unions. And labor 3. Suzanne Nossel, Smart Power, vol. 83, no.2, Foreign unions are a necessary political and social ally in the Affairs (March/April 2004), p. 134. fi ght against autocratic regimes. 4. Joseph Nye, “The Decline of America’s Soft Power,” The United States government should step up the vol. 83, no. 2, Foreign Affairs (May/June 2004). rhetoric regarding labor rights. When speaking of de- 5. Ray Marshall and Julius Getman, “Democracy and mocratization efforts in countries such as Afghani- Unions Go Together,” Los Angeles Times (July 6, 2003), stan and Iraq, administration offi cials continually op-ed page. mention the importance of women’s rights and a 6. Edmund McWilliams, “There’s Still a Place for Labor free press. Including basic labor rights, especially Diplomacy,” Foreign Service Journal (July/August the freedom of association, in speeches by high-level 2001). Online. Available: http://www.afsa.org/fsj/ offi cials would indicate a serious commitment to julaug/mcwilliamsjulaug01.cfm. the cause. 7. See Jerome Karabel, “Polish Intellectuals and the Origins of Solidarity: The Making of an Oppositional Alliance,” Communist and Post-Communist Studies, vol. CONCLUSION 26, no. 1 (March 1993), pp. 24-46. 8. Maria Lorena Cook, “Unions, Markets and Democracy The search for security in a dangerous world defi nes in Latin America,” in The Future of Labor Unions: Orga- the American national interest. The Bush adminis-

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nized Labor in the 21st Century, ed. Julius Getman and in Europe and Latin America. Paper iirwps’062’95. Uni- F. Ray Marshall (Austin: LBJ School, 2004), p.248. versity of California at Berkeley, Institute of Industrial 9. See Dietrich Rueschemeyer, Evelyn Stephens, and John Relations Working Paper Series 1995. Stephens, Capitalist Development and Democracy ((Chicago:Chicago: 27. Issac, Nigeria- A Strike for Democracy. Chicago University Press, 1992), Ch. 3, 4, and 7, and 28. Historical information in this section draws heavily Samuel Huntington, The Third Wave: Democratization from Collier and Mahoney, Labor and Democratiza- in the Late Twentieth Century (Norman:(Norman: UUniversityniversity ofof tion. Oklahoma Press, 1991), Ch. 3, 4, and 6. 29. Andreas Fontana, Armed Forces and Political Parties 10. Cook, “Unions, Markets and Democracy in Latin in Democratic Transition in Argentina (Buenos Aries: America,” p. 247. Estudios CEDES, 1984), p.35. 11. McWilliams. 30. Historical information in this section draws heavily 12. See Jose Maravell, The Transition to Democracy in Spain from Collier and Mahoney, Labor and Democratiza- (London: Croon Helm, 1982), cited in Ruth Collier and tion. David Collier, “Adding Collective Actors to Collective 31. Manuel Barrera and Samuel Valenzuela, “The De- Outcomes: Labor and the Recent Democratization in velopment of Labor Movement Opposition to the South America and Southern Europe,” Comparative Military Regime” in Military Rule in Chile: Dictatorship Politics, vol. 29, no.3, (April 1997), pp. 285-303, for and Opposition, ed., Samuel Valenzuela and Arturo detailed analysis of labor movement involvement in Valenzuela (Baltimore: The Johns Hopkins University Franco’s Spain. Press, 1986), pp. 260-261, cited in Collier and Mahoney, 13. Jose Maravell, Dictatorship and Dissent (London: Ta- Labor and Democratization. vistock, 1978), cited in Collier and Collier, “Adding 32. Collier and Mahoney, Labor and Democratization, p. Collective Actors to Collective Outcomes.” 37. 14. Collier and Collier, “Adding Collective Actors to 33. Nicholas Stigliani, “Labor Diplomacy: A Revitalized Collective Outcomes.” Aspect of U.S. Foreign Policy in the Era of Globaliza- 15. Maravell, The Transition to Democracy in Spain. tion,” International Studies Perspectives, vol. 1, issue 2, 16. See Gerardo Munck and Carol Skalnik Leff, “Modes (August 2000), p. 178. of Transition and Democratization: South America 34. Edmund McWilliams, “There’s Still a Place for Labor and Eastern Europe in Comparative Perspective,” Diplomacy,” Foreign Service Journal (July/August Comparative Politics, vol. 29, no. 3 (April 1997), pp. 2001). Online. Available: http://www.afsa.org/fsj/ 343-362. julaug/mcwilliamsjulaug01.cfm 2001. 17. Collier and Collier, “Adding Collective Actors to Col- 35. Stigliani, “Labor Diplomacy,” p. 179. lective Outcomes: Labor and Recent Democratization 36. Ibid., p. 180. in South America and Southern Europe.” 37. Ibid. 18. Ibid. 38. Marshall and Getman, “Democracy and Unions Go 19. E.C. Webster, “The Politics of Economic Reform: Together.” Trade Unions and Democratization in South Africa,” Journal of Contemporary African Studies, vol.16, no. 1 39. Presideny George W. Bush, State of the Union Ad- (January 1998), p. 40. dress (Washington, D.C., January 20, 2004). 20. Ibid., pp.45 and 46. 40. See National Endowment of Democracy Web site for details, available at www.ned.org. 21. Ibid., p.46. 41. The historical and procedural information in this 22. Marshall and Getman, “Democracy and Unions Go paragraph draws from the International Labor Or- Together.” ganization Web site, available at www.ilo.org. 23. The history described in this paragraph relies heavily 42. Stigliani, “Labor Diplomacy,” p. 184. on information from the Human Rights Watch Web site, Nigeria page, available at www.hrw.org/nige- 43. Rorden Wilkinson, Nigel Hawthorth, and Stephen ria. Hughes, “Recasting Labor Diplomacy,” International Studies Perspectives, vol. 2, no. 2 (May 2001), pp. 208- 24. Katherine Issac, “A Strike for Democracy,” Multina- 209. tional Monitor, vol. 17, no. 6 (June. 1995). 44. Ibid., p.209. 25. Marshall and Getman, “Democracy and Unions Go Together.” 45. Robert Jervis, “The Compulsive Empire,” Foreign Policy, vol. 137 (July/August 2003), p.86. 26. Historical information in this section draws heavily from Ruth B. Collier and James Mahoney, Labor and Democratization: Comparing the First and Third Waves

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WORKS CITED Huntington, Samuel. The Third Wave: Democratization in the Late Twentieth Century, Norman: University of Adler, Glenn, and E. Webster. “Challenging Transition Oklahoma Press, 1991. Theory: The Labor Movement, Radical Reform, and Human Rights Watch. Nigeria. Online. Available: http:// Transition to Democracy in South Africa.” Politics and www.hrw.org/doc?t=africa&c=nigeri. Society, vol. 23, no. 1 (March 1995), pp.75-106. International Labour Organization. What’s New. Online. _____, ed. Trade Unions and Democratization in South Africa, Available: http://www.ilo.org. New York: St. Martin’s Press, 2000. Issac, Katherine. “A Strike for Democracy.” Multinational Anderson, Lisa, ed. Transitions to Democracy, New York: Monitor, vol. 17, no. 6 (June. 1995). Columbia University Press, 1999. Jervis, Robert “The Compulsive Empire.” Foreign Policy, Barrera, Manuel, and Samuel Valenzuela. “The Develop- vol. 137 (July/August 2003), pp. 83-89. ment of Labor Movement Karabel, Jerome. “Polish Intellectuals and the Origins of Opposition to the Military Regime.” In Military Rule in Solidarity: The Making of an Oppositional Alliance.” Chile. Dictatorship and Oppositions, ed. J.S. and A. Communist and Post-Communist Studies, vol. 26, no. 1 Valenzuela. Baltimore: Johns Hopkins University (March 1993), pp. 24-46. Press, 1986. Lado, Cleophas. “The State and Civil Society: Transition Bernhard, Michael. “Civil Society and Democratic Transi- and Prospects of Labor Geographies in an Era of tion in East Central Europe.” Political Science Quarterly, Economic Globalization in Nigeria and South Africa.” vol. 108, no. 2 (Summer 1993), pp.307-326. Singapore Journal of Tropical Geography, vol. 21, no. 3 Boot, Max. “Think Again: Neocons.” Foreign Policy, vol. (2003), pp.295-315. 140 (January/February 2004), pp.20-26. Maravell, Jose. Dictatorship and Dissent, London: Tavistock Bronstein, Arturo. “Societal Change and Industrial Re- Press, 1978. lations in Latin America: Trends and Prospects.” _____. The Transition to Democracy in Spain, London: Croon International Labor Review, vol.134, no. 2 (1995), pp. Helm Press, 1982. 163-186. Marshall, Ray, and Julius Getman. “Democracy and Unions Bush, George W. President of the United States. State Go Together.” Los Angeles Times (July 6, 2003). of the Union Address, Washington, D.C., January McWilliams, Edmund. “There’s Still a Place for Labor 20, 2004. Diplomacy.” Foreign Service Journal (July/August Collier, Ruth B., and David Collier. “Adding Collective 2001). Online. Available: http://www.afsa.org/fsj/ Actors to Collective Outcomes: Labor and the Recent julaug/mcwilliamsjulaug01.cfm 2001. Democratization in South America and Southern Munck, Gerardo. Authoritarianism and Democratization: Europe.” Comparative Politics, vol. 29, no.3 (April: Soldiers and Workers in Argentina, 1976-83, University 1997), pp. 285-303. Park: Penn State Press, 1998. _____. Shaping the Political Arena: Critical Junctures, the Munck, Gerardo, and Carol Skalnik Leff. “Modes of Transi- Labor Movement, and Regime Dynamics in Latin America, tion and Democratization: South America and Eastern Princeton: Princeton University Press, 1991. Europe in Comparative Perspective.” Comparative Collier, Ruth B., and James Mahoney. Labor and Democra- Politics, vol. 29, no. 3 (April 1997), pp. 343-362. tization: Comparing the First and Third Waves in Europe Murillo, Maria Victoria. Labor Unions, Partisan Coalitions, and Latin America. Paper iirwps’062’95. University of and Market Reforms in Latin America, New York: Cam- California at Berkeley, Institute of Industrial Relations bridge University Press, 2001. Working Paper Series 1995. National Endowment for Democracy. National Endow- Cook, Maria Lorena. “Labor Reform and Dual Transitions ment for Democracy. Online. Available: http://www. in Brazil and Southern Cone.” Latin American Politics ned.org. and Society, vol.44, no.1 (2003), pp.1-34. Nossel, Suzanne. “Smart Power.” Foreign Affairs, vol. 83, _____. “Unions, Markets and Democracy in Latin Ameri- no. 2 (March/April 2004), pp. 131-143. ca.” In The Future of Labor Unions: Organized Labor in the 21st Century, ed. Julius Getman and F. Ray Marshall. Nye, Joseph. “The Decline of America’s Soft Power.” Foreign Austin: LBJ School, 2004. Affairs, vol. 83, no. 2, (May/June 2004), pp. 16-21. Fontana, Andreas. Armed Forces and Political Parties in Offi ce of the President. National Security Strategy of the Democratic Transition in Argentina, Beunos Aries: United States of America: Executive Summary, July 16, Estudios CEDES, 1984. 2002. Haggard, Stephen, and Robert Kaufman. The Political Rueschmeyer, Dietrich, Evelyne Huber Stephens, and Economy of Democratic Transitions, Princeton: Princeton John Stephens. Capitalist Development and Democracy, University Press, 1995. Chicago: University of Chicago Press, 1992.

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Shettima. K. A. “Engendering Nigeria’s Third Republic.” Van der Walt, Lucien. “Trade Unions in Zimbabwe: For African Studies Review, vol. 37, no. 1 (December 1995), Democracy, Against Neo-Liberalism.” Capital and pp. 61-98. Class, vol. 66 (Autumn 1998). Stigliani, Nicholas. “Labor Diplomacy: A Revitalized Weart, Spencer. Never at War: Why Democracies Will Not Aspect of U.S. Foreign Policy in the Era of Globaliza- Fight One Another, New Haven: Yale University tion.” International Studies Perspectives, vol. 1, issue 2, Press, 1998. (August 2000), pp. 177-195. Webster, E.C. “The Politics of Economic Reform: Trade United Nations Development Programme. Human Develop- Unions and Democratization in South Africa.” Journal ment Report 2002: Deepening Democracy in a Fragmented of Contemporary African Studies, vol. 16, no. 1 (1998), World, Oxford: Oxford University Press, 2002. pp. 39-60. Valenzuela, J. Samuel. “Labor Movements in Transitions to Wilkinson, Rorden, Nigel Hawthorth, and Stephen Democracy: A Framework for Analysis.” Comparative Hughes. “Recasting Labor Diplomacy.” Interna- Politics, vol. 21, no. 4 (July 1989), pp.445-472. tional Studies Perspectives, vol. 2, no. 2 (May 2001), pp. 207-220.

LBJ JOURNAL OF PUBLIC AFFAIRS ELECTRONIC TRASH:

MANAGING WASTE IN THE NEW CENTURY

REATING SOUND ENVIRONMENTAL POLICY for the safe and effi cient disposal of electronic waste is a 21st century Cproblem. Any solution will require the involvement of private and public entities to eliminate hazards to human health, the envi- ronment, and international markets. Journalists and social scientists often label the United States a “throwaway society” because of the high-volume disposal of consumer products in the country each year. The U.S. Environmental Protection Agency (EPA) estimates 2.12 million tons of consumer electronic waste were generated in the United States in 2000. The estimate projects 91 percent of this waste either remained unused in personal storage or was placed in the trash.1 Nationally, only about 9 to 10 percent of electronic waste, which includes commonly discarded items like television sets and computer monitors, ends up in recycling centers. The majority of electronic waste winds up in overcrowded landfi lls.2 An estimated 63 million desktop personal computers (PCs) were thrown away in BY ALEXANDRA RITCHIE 2003, posing a challenge for businesses, state and local governments, and communities charged with managing and funding their cleanup Alexandra Ritchie is a second-year and disposal.3 master’s student at the LBJ School Policies need to be in place to counter the steady infl ux of products of Public Affairs. She received her that quickly become obsolete once new technological advances are bachelor’s degree in journalism from developed. Most consumers replace electronic goods after four years, The University of Texas at Austin regardless of condition.4 Successful strategies for waste reduction in 2002 with a concentration in would therefore address consumer and corporate behavior through U.S. Latino and Latin-American source reduction (an attempt to prevent waste and produce products media studies. Prior to arriving with longer life expectancies), recycling and reuse programs, and the at LBJ, Alexandra interned in the continued development of the existing regulatory framework within Texas Governor’s Offi ce and later the United States. worked as a press secretary and legislative aide to a Texas State Senator. Her research and general REGULATORY FRAMEWORK policy interests include sustain- able development, natural resource Disposal of electronic waste is diffi cult to regulate because “electronic policy, agricultural policy, inter- waste” is a general description for the many different types of electronic national relations, and alternative goods. Electronic waste can include computers, monitors, copiers, fax dispute resolution. machines, printers, televisions, and video games that are near the end

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII ELECTRONIC TRASH 81 of their useful life. However, there is currently no Depression and World War II, when attempts standard legal defi nition for electronic waste used were made to protect the supply of raw materials by all regulatory agencies.5 Traditionally, states have in times of shortage. considered these products to be examples of mu- Domestically, environmental regulation of haz- nicipal solid waste (MSW) or household hazardous ardous and nonhazardous waste reduces the vol- waste (HHW) subject to federal and state regulations. ume and impact of electronic waste generated in the However, enforcement is complicated by the arrival United States. However, many of these products are of new products that fall outside any legal category. shipped to less-developed countries (LDCs), where No agency has even established whether old electrical environmental laws are lax or nonexistent. The lack appliances such as microwave ovens or coffeemakers of key environmental laws can lead to the exposure should be included in the loose defi nition of electronic of residents to hazardous waste and contaminated waste. Because of this, pollutants continue to enter the drinking water sources. Electronic products from waste stream as products destined for landfi lls with the United States are frequently shipped illegally the potential to leak toxins into the environment. to foreign nations. Many nations rarely place a Many of these products contain components limit on the amount that can be shipped into a that are considered haz- recipient country to sup- ardous waste. Computer port businesses that use monitors and cell phones Policies need to be in place to the byproducts of waste can contain lead, cad- for economic gain. For mium, barium, mercury, counter the steady infl ux of example, China accepts arsenic, and PCBs—all products that quickly become PCs to extract their cop- potential sources of soil per, aluminum, and gold or drinking water con- obsolete once new technological innards. Unfortunately, tamination. Very often, advances are developed. workers in China lack electronic products are legal or physical safe- not subject to hazardous guards from exposure to waste regulation if they are intact and intended for these and other substances such as the four pounds reuse or resale. Producers of electronic goods that of lead found in each monitor.9 Electronic waste is meet only part of these defi nitions do not share the therefore a global problem that must be addressed costs of the disposal or benefi t from the markets cre- by international organizations, including the United ated under state or federal legislation for recycled Nations, multinational corporations (MNCs), non- or remanufactured electronic goods. governmental organizations, and trade blocs and Refurbishing or recycling electronic goods trade organizations like the World Trade Organiza- helps reduce dependence on landfi lls, assists in tion (WTO). meeting federal and state pollution prevention In many sovereign states where discarded PCs goals, and addresses future demands for pri- are shipped, governments are following the United mary products. According to the EPA, “source States and European Union to develop better laws reduction (including reuse) is the most preferred to decrease the harmful influence of electronic method [of environmentally friendly electronic waste. Therefore, industry resistance to government disposal], followed by recycling and composting, regulation needs to be taken into account when de- and, lastly, disposal in combustion facilities and veloping new environmental policies for electronic landfi lls.”6 Most states now have laws and pro- waste management. The basic legal framework for grams that support recycling and reuse efforts. solid waste management in the United States is However, 56 percent of all MSW generated in laid out in the Resource Conservation and Recov- the United States is still disposed of in landfi lls, ery Act (RCRA) enacted by Congress in 1976. In which occupy larger and larger expanses of real 1984, RCRA was amended in response to growing estate that could be used in alternative ways more public concern about the dangers of hazardous beneficial to the environment and economy.7 waste disposal practices. According to the EPA’s Alternative waste management practices such Offi ce of Solid Waste (OSW), RCRA’s goals are to as recycling have resulted in the decrease in the “protect us from the hazards of waste disposal; total number of landfi lls from 8,000 in 1988 to conserve energy and natural resources by recycling 1,858 in 2001.8 These practices are part of a larger and recovery; reduce or eliminate waste; and clean trend toward resource management and waste up waste which may have spilled, leaked or been prevention that can trace its roots to the Great improperly disposed.”10

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The federal hazardous waste law established ful substances subject to RCRA regulation, but standards for disposal, storage, and treatment. The confusion and tension among members of private law prioritized energy and resource conservation industry remained. and waste reduction. The provisions apply to gen- During the 1980s, elected offi cials and industries erators, transporters, and disposal sites and contain began pushing for the deregulation of regulatory both forward-looking standards for waste preven- power. Members of private industry challenged tion and retrospective standards for civil liability government agencies in court and expressed a imposed on past toxic substance disposal facilities.11 desire for greater consultation on new regula- Most states have adopted and codifi ed provisions tory policies. States were burdened with devising in state law and delegated enforcement and regu- economically feasible means to enforce RCRA re- lation (that is, permitting for disposal facilities) to quirements and resorted to charging private waste state and local government agencies. The EPA collectors a per-ton disposal fee, called a tipping provides national standards fee, or forming Councils of for landfi lls and guidelines on Local Governments (COGs) to safe and proper disposal of leverage funding for new or hazardous and nonhazardous Computer monitors enhanced disposal facilities. wastes as defi ned by RCRA. It and cell phones can Counties such as Montgomery coordinates enforcement with County in Maryland typically its ten regional offi ces. In addi- contain lead, cadmium, must coordinate disposal fee tion, the EPA enforces RCRA barium, mercury, amounts with nearby jurisdic- by collecting information on arsenic, and PCBs—all tions to reduce inter-jurisdic- amounts of hazardous waste tional competition for waste generated, treated, stored, or potential sources of disposal services.16 In addition, disposed on site from busi- soil or drinking water state offi cials saw the need to nesses and disposal facilities work with private industry to and publishing the informa- contamination. share some of the costs and tion in monthly and annual provided tax or other econom- reports. ic incentives to create private In the late 1980s and 1990s, the EPA was involved recycling programs and markets for recycled prod- in several important court cases that attempted to ucts. The federal government retained oversight of resolve questions about the extent to which RCRA enforcement but yielded more room for fl exibility “covers materials that are recycled or held for future and local control. recycling.”12 The central question centered on at In response to consumer complaints about what point materials could be considered recycled confusing standards and corporate complaints of or discarded. In American Mining Congress v. EPA costly regulatory burdens, the EPA issued a more (AMC I), the divided D.C. Circuit Court ruled that comprehensive Universal Waste Rule in 1995. Ac- “Congress did not intend RCRA to regulate ‘spent’ cording to the EPA, the rule “is designed to reduce materials that are recycled and reused ‘in an ongo- the amount of hazardous waste in the municipal ing manufacturing or industrial process.’”13 The solid waste (MSW) stream, encourage recycling Court later sided with the EPA in AMC II (1990), and proper disposal of certain common hazard- stating that the Mining Congress was still liable ous wastes, and reduce the regulatory burden on for wastes “managed in land disposal units that businesses that generate these wastes.”17 The rule are part of wastewater treatment systems” because applies to batteries, pesticides, mercury-containing such wastes can be considered discarded since thermostats, and lamps and is supported by more they are “part of the disposal problem” and are no recently proposed rules that include mercury-con- longer “part of ongoing industrial processes.”14 In taining equipment. Many industries supported the American Petroleum Institute v. EPA, the D.C. Cir- new rules because they claimed that the new rules cuit Court ruling broadened the interpretation of facilitate the establishment of collection and take- “discarded material” by stating that even recycled back programs now required by many states. The materials can be considered wastes at the time of Universal Waste Rule also distinguishes between recycling (if discarded before subject to reclamation) Large and Small Quantity Generators (LQGs and and therefore are “subject to RCRA regulation.”15 SQGs), exempting those businesses that produce In light of the court rulings, the EPA attempted to less than 100 kilograms (220 pounds) of universal clarify its defi nitions and provided lists of harm- waste per month. State adoption of the Universal

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII ELECTRONIC TRASH 83

Waste Rule was optional because it is “less stringent would be revenue-generating.21 Originally, the than the previous requirements under RCRA,” bill’s intent was to “make companies responsible resulting in 50 or more different sets of standards for recycling their own products,” supporting and lists of regulated wastes.18 Some states, such as the concept of product stewardship included in California, have enacted laws that are more strin- recent EU legislation, but lobbyists for U.S. com- gent than the Universal Waste Rule (including ban- panies protested that it would cost them $30 per ning certain wastes from incinerators and landfi lls), computer.22 The fi nal version prohibits companies while others such as Maine and Washington have from selling devices to the State of California after excluded pesticides and North Dakota has excluded 2007 that do not meet EU rules, “mandating a thermostats. The rule does stipulate that regardless gradual phase-out of toxins,” and requires “tech of the actual list of wastes included, “state standards companies to disclose the levels of hazardous must provide equivalent protection” and cannot materials in their products” every two years.23 “regulate fewer handlers.”19 Inside and outside of the EU, product steward- ship is gaining popularity as a means to clarify “who should bear the costs of managing, either through CURRENT POLICY AND LEGAL ENVIRONMENT recycling or disposal, consumer products ranging from beverage containers to computer monitors,” and The federal government has responded to pressure to bring all stakeholders to the table.24 Past legislation from environmental groups and state agencies to focused on regulation of products at the end of their issue new rules and guidelines for specifi c com- useful life, while product stewardship attempts to ponents of electronic goods, such as mercury and make all “actors in the lifecycle of a product” (manu- cathode ray tubes (CRTs), that contain lead and facturers, retailers, consumers, and environmental radioactive substances. The State of California is regulators) responsible for minimizing its environ- leading the way by recognizing the need to work mental impact and sharing the costs of doing so. The with private industry to develop effective electronic principle is an umbrella for current strategies, such waste regulation mechanisms. California adopted as “Design for the Environment, greening the supply emergency regulations for CRTs in 2001, and the chain, pollution prevention, resource conservation, EPA issued its own rule to promote more recycling take-back, and product to service transition,” that and reuse of electronic wastes and mercury-contain- promote sustainable development.25 ing equipment by adding it to the Universal Waste In the United States, product stewardship Rule in 2002. Since 1989, the State of California has councils comprised of members from the private, relied on its California Integrated Waste Manage- nonprofi t, and public sectors participate in regional ment Board (CIWMB) to enhance public awareness and national dialogues on the merits of different about regulatory issues related to electronic waste recycling infrastructures and funding mechanisms by publishing updates in online reports, hosting for those programs. At its March 2002 meeting, the technical training conferences for law enforcement National Electronics Product Stewardship Initiative offi cials, and organizing electronic waste collection (NEPSI) agreed on a “front-end fi nanced system” events around the state. The Web site now includes that would include management costs in the pur- links to federal, state, and local government agen- chase price of the product.26 Participants also agreed cies, in addition to private-public coalitions seeking to make recommendations about how to prevent change through self-regulation. the exporting of used electronics for unregulated California enacted a new law, Senate Bill 20 (the recycling in Asia. Industry leaders are also forming Hazardous Electronic Waste Recovery, Reuse and coalitions such as the Electronics Industry Alliance Recycling Act of 2003), in September 2003 that es- (made up of all the major players in the electronics tablishes a funding system for the collection and industry from Sony to HP to Kodak) to promote recycling of electronic wastes that is expected to consumer protection, compliance, and corporate serve as a model for other states. Under the act, responsibility by designing innovative recycling electronic waste collection fees collected “at the and take-back programs for their products. point of sale of certain products” would cover While the concept has gained popularity, as the costs of state-sponsored recycling programs.20 proven through increased participation in confer- Existing programs are funded in part by grants ences and national dialogues, it is still diffi cult for awarded by the state. Former Governor Gray Da- members with competing interests to achieve a vis recognized that with California’s budgetary consensus on policy and program specifi cs such as constraints, he could only support a proposal that what proportion of recycling costs each stakeholder

LBJ JOURNAL OF PUBLIC AFFAIRS 84 ELECTRONIC TRASH FALL 2004 should bear. Participants also differ on whether by creating a Green China Project that will accept product stewardship goals would be best achieved “brand waste mobile phones, batteries, and other by implementing a national environmental infra- components” for recycling and could be expanded structure or allowing for more fl exibility and local to accept nonbrand waste in the future.30 control within the private and public sectors. The experiments are paying off because states are help- ing companies publicize their take-back programs REMAINING CHALLENGES and facilitate the effort through scheduled collection AND RECOMMENDATIONS events around the state. Industry alliances also help give the electronics industry a common voice in the Many of these developments seem to indicate a legislative process, making it easier for legislators strong collective will among various stakehold- to anticipate and respond to opposition before the ers to share responsibility for this electronic waste dispute results in a costly lawsuit. Regulated indus- disposal problem. However, many of the groups tries can therefore infl uence legislation rather than have different timelines for achieving their com- retaliating against the old “command-and-control” mon goals, which could delay implementation of approach characteristic of the EPA in the 1970s. new legislation or policies. The different strategies Elsewhere, product stewardship is a concept that and targets proposed by the EU and the United is adopted because of membership in the EU or as States could result in greater friction among trading an attempt to protect citizens and markets from partners, causing both communities to challenge illegal dumping of used each other at WTO meet- electronics. The EU direc- ings. Policymakers need tives on Waste Electrical Alternative waste management to involve their interna- and Electronic Equipment tional counterparts in the (WEEE) and the Restric- practices such as recycling have discussions or risk damag- tion of the Use of Certain resulted in the decrease in the ing relations and disrupt- Hazardous Substances in ing trade through price Electrical and Electronic total number of landfi lls from or trade wars for legally Equipment (ROHS) must 8,000 in 1988 to 1,858 in 2001. preferred electronic goods. be incorporated into law They must also commit to by all member states by policies that prevent the August 13, 2004.27 UnderUnder WEEE,WEEE, manufacturersmanufacturers willwill export of used electronics to the last remaining pol- assume total responsibility for their goods and will lution havens, or countries not having sophisticated help establish recycling centers by August 13, 2005. legal systems and environmental regulations. Under ROHS, electronic waste containing lead, mer- On the other hand, the Bush administration cury, cadmium, and chromium will be banned from favors the stewardship approach because it caters the market after July 2006. These countries have six to business interests and state’s rights and also sup- years to comply with WEEE and ROHS. According ports existing recycling infrastructure to develop to the Sierra Club, the EU proposed more stringent markets for recycled or remanufactured goods. rules for electronic waste in 1999, but U.S. industry Unless challenged by a foreign state, President representatives pressured then-President Clinton to Bush may not take an offi cial position on this issue, threaten to fi le a WTO complaint, and the EU modi- making his support of these various domestic initia- fi ed its rule to only cover what the Sierra Club called tives uncertain. This might be problematic for U.S. “toxic computer junk.”28 In an effort to achieve uni- business groups seeking to export their products to form results, the EU has also issued recycling and countries that threaten to take their concerns about collection quotas for each regulated waste for 2006 the safety or quality of these products to the WTO and will review them again in 2008. In November or the environmentally conscious EU. 2003, the Chinese government announced plans to Federal-state tension over which products or enact the Manufacturer Extended Responsibility components to regulate will remain as long as Principle (synonymous for Product Stewardship) to the EPA defers to state governments to decide regulate domestically generated and imported elec- where these management strategies fall within tronic waste with the support of many mobile phone their spending priorities. To be effective, laws and manufacturers and “resource recycling enterprises” programs need to be updated every few years as such as Motorola and Ningbo Renewable Resource new types of electronic products are developed. Process Park.29 Motorola has taken the initiative California and several states in the Northwest have

LBJ JOURNAL OF PUBLIC AFFAIRS VOL. XVII ELECTRONIC TRASH 85 good recycling and reuse infrastructures that might promote a more effi cient allocation of resources and be threatened by changes in administration or the reduce unfair trading practices. International law is election of government offi cials seeking to reduce diffi cult to enforce, but agreements reached by in- debt by eliminating or slashing state programs. Pro- cluding diverse stakeholders have more legitimacy gram cuts might reduce the ability of governments and a greater mandate. This is starting to become to educate the consuming public about selecting clear as the product stewardship model becomes products that can be recycled and taking them to more prevalent in the world. The proper balance the appropriate disposal facility. Fees imposed on between government regulation and industry the end user might be viewed as a sales tax and self-regulation, or inducement through incentive become politically unpopular regardless of the programs like tax breaks and grants, needs to be policy’s good intentions to account for negative achieved so policies are economically feasible to externalities like pollution. It is therefore impera- implement and enforce. tive that all new policies are created with adequate lLBJl public participation and that policy decisions are based on accurate information. Generators of elec- tronic and household hazardous waste must be held NOTES accountable for reporting precise fi gures of waste generated, treated, and stored on site. 1. Agency of Natural Resources, Department of En- Consumer groups and journalists need to con- vironmental Conservation, “National Generation, tinue to monitor industry efforts at self-regulation Recovery, and Discards of Consumer Electronics in and provide information on their programs. This the Municipal Waste Stream-Year 2000 (in tons).” Presentation slide (January 2004), Online. Available: action will hold all stakeholders more accountable http://wwww.newmoa.org/newmoa/htdocs/pre- for meeting pollution prevention and recycling vention/webconferences/ewasteweb/gulka.ppt. goals and protect the authority of RCRA. No busi- 2. Bill Magavern, “Support Recycling E-waste: SB 20 ness should be granted a reporting or publication Would Make Manufacturers Pay for Safe Recycling exemption under the guise of privacy. All relevant of Hazardous Electronic Waste,” Sierra Club Redwood hazardous or electronic waste generation data must Chapter Newsletter (August/September 2003). Online. be made public. Advertising and economics make Available: http://www.redwood.sierraclub.org/ar- it hard for consumers to change their behavior, so ticles/August_03/EWaste.html. policies must be designed that make disposal or 3. Ben Elgin, “The Information Age’s Toxic Garbage,” management consumer-friendly, including provid- Business Week (San Mateo, CA, October 6, 2003), p. ing software that scrubs older computers of personal 1. data before donations or recycling take place. Con- 4. Email from Laura Yates, Program Administrator, St. sumers also need to be updated on developments in Louis County, “RE: Request for Information on 2001 the recycled market, including incentive programs Survey of Electronic Waste in St. Louis County,” to like rebates or free shipping and handling for goods Alexandra Ritchie, October 28, 2004. returned for recycling. Consumer behavior can also 5. California Integrated Waste Management Board, be changed over generations as research universi- “What Is E-Waste?” Online. Available: http://www. ties include electronic waste management courses ciwmb.ca.gov/Electronics/WhatisEwaste. in engineering and business school curricula. 6. Environmental Protection Agency (EPA), “Municipal Solid Waste: Basic Facts.” Online. Available: http:// www.epa.gov/epaoswer/non-hw/muncpl/facts. CONCLUSION htm. 7. Ibid. The 21st century poses new challenges for govern- 8. Ibid. ments, businesses, NGOs, and communities seeking to maximize consumer welfare and minimize pollu- 9. Elgin, “The Information Age’s Toxic Garbage,” p. tion and waste generated by economic activity. Con- 1. sumer demand for electronic products is likely to 10. EPA, “Basic Information: The Offi ce of Solid Waste increase as populations grow and intergenerational (OSW).” Online. Available: gaps are bridged by common usage of technology. http://www.epa.gov/epaoswer/osw/mission.htm. Because waste generation is tied to trade, countries 11. Roger W. Findley and Daniel A. Farber, “The Resource need to establish international agreements on the Conservation and Recovery Act (RCRA),” Environ- exchange of used or recycled electronic goods to mental Law in a Nutshell, 5th ed. (St. Paul, MN: West

LBJ JOURNAL OF PUBLIC AFFAIRS 86 ELECTRONIC TRASH FALL 2004

Publishing Company, 2000), pp. 190-191. News (2003), pp. 1-2. Online. Available: Lexis-Nexis 12. Ibid., p. 195. Academic Universe. 13. Ibid. 30. Ibid., p. 2. 14. Ibid., pp. 195-196. 15. Ibid., p. 196. WORKS CITED 16. Montgomery County, Maryland, Department of Public Works and Transportation, “What Are Solid Agency of Natural Resources, Department of Envi- Waste Charges For?” Online. Available: http://www. ronmental Conservation. “National Generation, montgomerycountymd.gov/swstmpl.asp?url=/con- Recovery, and Discards of Consumer Electronics in tent/dpwt/SolidWaste/reference/swc/index.asp. the Municipal Waste Stream-Year 2000 (in tons).” 17. EPA, “Streamlined Regulations for Universal Waste: Presentation slide (January 2004). Online. Available: State-Specifi c Universal Waste Regulations.” Online. http://wwww.newmoa.org/newmoa/htdocs/pre- Available: http://www.epa.gov/epaoswer/haz- vention/webconferences/ewasteweb/gulka.ppt. waste/id/univwast/uwsum.htm. California Integrated Waste Management Board. “Elec- 18. Ibid. tronic Waste Recycling Act of 2003 (SB 20).” Nov. 19, 19. Ibid. 2003. California Integrated Waste Management Board Web site. Available online at: http://www.ciwmb. 20. California Integrated Waste Management Board, ca.gov/Electronics/Act2003/. “Electronic Waste Recycling Act of 2003 (SB 20).” Online. Available: http://www.ciwmb.ca.gov/Elec- _____. “Product Stewardship.” Online. Available: http:// tronics/Act2003/. www.ciwmb.ca.gov/Electronics/Act2003/. 21. Gray Davis. “Veto Message to the Members of the _____. “What Is E-Waste?” Online. Available: http:// California State Senate.” Offi ce of the Governor, www.ciwmb.ca.gov/Electronics/WhatisEwaste. Sacramento, 2003. Online. Available: http://www. Davis, Gary. “National Electronics Product Stewardship ciwmb.ca.gov/Electronics/RegIssues/1523veto. Dialogue Achieves Milestone: Stakeholders Agree doc. on Financing Approach for Management of Used 22. Elgin, “The Information Age’s Toxic Garbage,” p. Electronics.” National Electronics Product Steward- 2. ship Initiative (March 19, 2002, Press Release). Online. Available: http://eerc.ra.utk.edu/clean/nepsi/ 23. Ibid. pdfs/nepsipress3-19.pdf. 24. California Integrated Waste Management Board. Davis, Gray. “Veto Message to the Members of the Cali- “Product Stewardship.” Online. Available: http:// fornia State Senate.” Offi ce of the Governor, Sacra- www.ciwmb.ca.gov/Electronics/Act2003/. mento, 2003. Online. Available: http://www.ciwmb. 25. EPA. “Region 10: The Pacific North- ca.gov/Electronics/RegIssues/1523veto.doc. west: Product Stewardship.” Online. Avail- Elgin, Ben. “The Information’s Toxic Garbage.” Business able: http://yosemite/epa/gov/R10/OWCM. Week (October 6, 2003). Online. Available: LexisNexis NSF/1E9059F04619cec58825650000585e90/ Database. 8f48c3j059713a19882568400759407?opendocument. Environmental Protection Agency. “Basic Information: 26. Gary Davis, “National Electronics Product Steward- The Offi ce of Solid Waste (OSW).” Online. Avail- ship Dialogue Achieves Milestone: Stakeholders able: http://www.epa.gov/epaoswer/osw/mission. Agree on Financing Approach for Management htm. of Used Electronics,” National Electronics Product Stewardship Initiative, March 19, 2002 (Press Release). _____. “Municipal Solid Waste: Basic Facts.” Online. Online. Available: http://eerc.ra.utk.edu/clean/ Available: http://www.epa.gov/cgi-bin/epaprint- nepsi/pdfs/nepsipress3-19.pdf. only.cgi. 27. “Treatment of electronic waste to be legislated,” _____. “Region 10: The Pacifi c Northwest: Product Stewardship.” MTI Econews/MTI Hungarian News Agency (October Online. Available: http://yosemite/epa/gov/R10/ 15, 2003), pp. 1-2. Online. Available: Lexis-Nexis OWCM.NSF/1E9059F04619cec58825650000585e90/ Academic Universe. 8f48c3j059713a19882568400759407?opendocument. 28. Dan Seligman, “Responsible Trade: The World _____. “Streamlined Regulations for Universal Waste: Trade Organization: Trading Away Our Health and State-Specifi c Universal Waste Regulations.” Online. Heritage.” Online. Available: http://www.sierraclub. Available: http://www.epa.gov/cgi-bin/epaprint- org/trade/resources/healthheritagefs.asp. only.cgi. 29. “Regulation of Electronic Waste Management on the Findley, Roger W., and Daniel A. Farber. and Environ- Way,” Financial Times/SinoCast China Business Daily mental Law in a Nutshell, 5th ed. St. Paul: West Group, 2000.

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Magavern, Bill. “Support Recycling E-Waste: SB 20 News. Nov. 10, 2003. Online. Available: LexisNexis Would Make Manufacturers Pay for Safe Recycling Database. of Hazardous Electronic Waste.” Sierra Club Red- Seligman, Dan. “Responsible Trade: The World Trade wood Chapter Newsletter. Aug./Sept. 2003. Online. Organization: Trading Away Our Health and Heri- Available: http://redwood.sierraclub.org/articles/ tage.” Sierra Club Web site, 2000. Online. Available: August_03/Ewaste.html. http://www.sierraclub.org/trade/resources/ Montgomery County Maryland. “What are Solid Waste healthheritagefs.asp. Charges For?” Division of Solid Waste Services, “Treatment of electronic waste to be legislated.” MTI Department of Public Works and Transportation. Econews/MTI Hungarian News Agency. Oct. 15, 2003. Montgomery County Maryland Web site. Online. Online. Available: LexisNexis Database. Available: http://www.montgomerycountymd. gov/swstmpl.asp?url=/content/dpwt/SolidWaste/ Yates, Laura. Program Administrator, St. Louis County. reference/swc/index.asp. Email, “RE: Request for Information on 2001 Survey of Electronic Waste in St. Louis County,” to Alexandra “Regulation of Electronic Waste Management on the Ritchie, October 28, 2004. Way.” Financial Times/SinoCast China Business Daily

LBJ JOURNAL OF PUBLIC AFFAIRS FALL 2004 LBJ JOURNAL OF PUBLIC AFFAIRS EDITORIAL BOARD

KEVIN BECK lasting solutions to poverty and suffering around Kevin holds a bachelor’s degree in English and his- the world. He then returned to study at the LBJ tory from Trinity University in San Antonio and a School of Public Affairs in the fall of 2004. master’s degree in English from the University of Il- linois at Urbana-Champaign. Prior to attending LBJ, BRIANA HUNTSBERGER he worked as an editor for The Astrophysical Journal Briana Huntsberger is a 2000 graduate of Brown at the University of Chicago Press. Kevin’s interests University, where she received a B.A., magna include cultural and arts policy, higher education, cum laude, in history. From 2000 to 2003, she was and urban policies, particularly livable cities. a research associate at Harvard Business School, where she worked with faculty members in the STEPHEN SPRUIELL Business, Government and International Economy Stephen is a second-year student at the LBJ School departments. While at HBS, she wrote and cowrote of Public Affairs. He received his B.A. in journalism HBS case studies about national and international from the University of Oklahoma. After graduation, economic policy. She also provided research as- he spent a year in Washington, D.C., working for sistance for a book about government regulation Citizens for a Sound Economy. He interned this of new technologies. Her policy interests include summer at National Review’s D.C. offi ce. He is inter- education policy, regulatory policy, and corporate ested in tax and budget issues, agricultural policy, governance reform. and international trade. CRYSTAL JONES STEPHANIE FAIN Crystal is a first-year master’s student and Ben Stephanie Fain is a fi rst-year master’s student at the Barnes Fellow at the LBJ School for Public Affairs. LBJ School of Public Affairs. She graduated in 2001 She graduated from the University of Texas at from Texas Tech University with a bachelor of arts in Austin with a bachelor of arts with highest honors French and history. During her undergraduate years, in English and anthropology. Crystal worked as a Stephanie was awarded a Rotary Ambassadorial research intern for Public Citizen, a nonprofi t advo- Scholarship to study in Grenoble, France. After gradu- cacy organization and then became a report writer ation, she moved to Japan, where she lived and taught for the Texas Workforce Commission. Crystal’s English at a local high school with the JET Programme. policy interests include culture and society, sustain- She returned to Texas two years ago and went to work able development, and social justice. for the Texas State Senate Journal before deciding to return to school. Her policy interests include foreign KEVIN PRIESTNER affairs, development issues, international trade, con- Kevin is a part-time student at the LBJ School of fl ict resolution, and human rights. Public Affairs. He is the associate editor of the Texas Bar Journal, the magazine of the State Bar of Texas. MATTHEW HARRIGER He previously served the organization in its Re- Matthew Harriger graduated from the University of search & Analysis and Communications divisions. Texas at Austin in 2002 with a B.A. in English and a Kevin graduated from Southwestern University in minor in business. His work focused primarily on Georgetown with a degree in history. Following poetry and creative writing. He completed a senior graduation, he was an intern in the Washington, seminar studying the comparative aspects of Her- D.C., offices of American Farmland Trust. His man Melville’s short stories and Robert Browning’s policy interests include historic preservation and poems using reader response theory. In 2003-2004 state and local politics. he lived, worked, and rowed in Oxford, England, while volunteering at Oxfam, a development, relief, CRISTINA RUGGIERO-MENDOZA and campaigning organization that works to fi nd Cristina Ruggiero-Mendoza graduated from the VOL. XVII FALL 2004 LBJ JOURNAL OF PUBLIC AFFAIRS EDITORIAL BOARD 89

University of California, Berkeley in 1999, having and adventure trips abroad. His policy interests in- completed a degree in political science with minors clude international affairs, economic development, in Spanish and Russian language. Upon graduation, border issues, and education. she spent two years working at the Open Society Institute (Soros Foundation) in New York, where JOHN SEALE she was responsible for program support in Rus- John was born and raised in Houston. He went to sia, Ukraine, and Belarus. After her time at OSI, she Rhodes College in Memphis and graduated with spent a year in Ekaterinburg, Russia on a fellow- an interdisciplinary degree (B.A.) in international ship from the State Department to study economic studies and political science. He also minored in development and civil society in provincial Russia. Spanish. After college, he moved to Washington, She is currently enrolled in the joint degree program D.C., and worked for the Seventh Congressional with the LBJ School and the Center for Russian, District of Texas, fi rst for Bill Archer just before he East European, and Eurasian Studies (CREEES) and retired and then for John Culberson for a little over expects to graduate in 2006. two years after that. He decided to take a little time off, did some traveling, and is now looking to get MICAH SAGEBIEL back in to the political/policy arena in some form. Micah is a fi rst-year master’s student at the LBJ School of Public Affairs. He graduated from Col- LAURA SULLIVAN gate University in 2001 with a bachelor of arts in Laura Sullivan is a second-year joint degree student international relations. As an undergraduate, Micah in public affairs and Latin American studies. She studied diplomatic history at the University of Ha- holds a B.A. in history from the University of Cali- vana in Cuba and the University of the Bosphorus fornia, Berkeley. Before coming to the LBJ School, in Istanbul, Turkey. Prior to graduate school, he she served as an AmeriCorps member in the Bay worked as a Teach for America corps member teach- Area and worked at the Greenlining Institute, a ing middle school history in the Rio Grande Valley nonprofi t that focuses on economic development of of Texas. Micah has also worked as a community underserved communities in California. Her policy development trip leader for Putney Student Travel interests include education, economic development, guiding U.S. high schoolers on community service and immigration.

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