Collaborative Governance in a Constitutional Context

Introduction

As collaborative governance has taken root in theory and practice, it has become the subject of both enthusiastic expectations and increased scrutiny. Because we do not believe that collaborative governance is a flash-in-the-pan or the latest efficiency fad, but rather is an integrated and legitimate process for public decisionmaking and collective action, we know we must locate it within the fabric of American democratic systems and as such, within a constitutional context.

In addition to important theoretical questions involving constitutional legitimacy, there are practical considerations, as well. Because collaborative governance is both institutionally and functionally cross-cutting, collaborative governance processes are enmeshed in an intricate web of authorizing charters, democratic accountability, and competing decision-making cultures. As Lisa Amsler put it, collaborative governance “encompasses public voice: the public and stakeholders working together across the policy continuum. It includes policymaking in the legislative branch upstream. Within the executive branch, it includes the quasi-legislative arena upstream, implementation and management midstream, and quasi-judicial downstream” (702). As a result, collaborative governance intersects with the United States Constitution, as well as with state constitutions, city charters, and federal, state, and local statutes, not to mention regulations at all levels of government.

There is also an important set of critiques that require our attention. Some of them stem from the particulars of individual projects, but some are rooted in more fundamental questions about the constitutional and legal legitimacy of collaborative governance. There are two particular critiques that we believe require thoughtful consideration: (1) collaborative governance is the new “smoked filled room,” undermining both federalism and separation of powers by forging new ways for governments to work across jurisdictions and branches of government, all of which creates the potential for new forms of influence peddling, subversion of checks and balances, and aggregation of power; and (2) collaborative governance bestows power on unelected stakeholders in the private and civic spheres, granting them undue influence on public decision-making and resource allocation. In the United States, at least, those two criticisms go straight to the heart of our form of government and the foundational documents that established it.

Here we must apologize to our readers who are not residents of the United States. For those practicing collaborative governance outside the United States, the foundational documents, as well as the cultural sources of collective democratic values, will be unique to the context in which they are working. That said, we hope this exploration of the United States Constitution will serve as a model for exploring how collaborative governance fits into a broader governance system.

In this chapter, we explore the tensions inherent in our constitutional system and how those tensions converge and are at least partially managed in the practice of collaborative governance. This is not a simple undertaking, and we run directly into the philosophical conflicts embedded in the Constitution itself, as well the complexities created by multiple levels of government responding to critical needs and a rapidly changing societal context. First, we begin with an overview of the values at stake in the United States Constitution, particularly the roots of divided government and what they mean for the practice of both traditional and collaborative governance. Second, we explore how collaborative governance can serve as a safety valve to mitigate against some of the worst potential side effects of divided government and how some form of collaborative governance is necessarily embedded in the constitutional system. Finally, we examine the practice of collaborative governance and how the details of that practice can bolster—rather than undermine—constitutional and democratic values.

 
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