The Practice of Collaborative Governance in a Constitutional Democracy

As always, the devil is in the details. And though collaborative governance has a solid foundation in constitutional values, it is how collaborative governance is practiced that ultimately confers its legitimacy. As mentioned above, one of the other primary criticisms of collaborative governance is that it could be used to subvert federalism and separation of powers, creating an opportunity for powerful or organized interests to capture the attention and resources of a collaborative group. In addition, some critics suggest that unelected, unaccountable participants in collaborative governance processes might have undue influence on public decision-making and the expenditure of public resources.

Once again, practices on the ground matter, and those practices are the means by which collaborative governance groups establish and maintain their democratic legitimacy. There are four pillars of practice that help establish and maintain legitimacy and accountability: (1) constitutional and legal stewardship, (2) multi-axial representativeness, (3) transparency, and (4) democratic capacity building and shared responsibility.

Constitutional and Legal Stewardship

Because collaborative governance groups necessarily cut across legal and jurisdictional boundaries, the public sector members of each group have a particular role in establishing and maintaining the legal and constitutional sideboards of any collaborative governance process. It is up to those government representatives to be clear about the source and limits of their authority both within the group and within their own agency. It has become a tenet of contemporary public administration that public agencies and the managers that serve in them have an important role in “conserving constitutional values and embedding them in management practices” (Newbold 14). When considering the role of local governments, Vera Vogelsang-Coombs wrote: “Local officials must understand their role as constitutional stewards in order to perform their deliberative governance roles effectively. This means that they must learn to preserve and balance the tension laden conditions of a thriving constitutional polity” (82). Clearly the same is true for state and federal officials. And because the purpose of any collaborative governance process is—by definition—public, there is an ongoing obligation for the public sector participants to serve as constitutional and legal stewards to the collaborative governance process. A collaborative governance process cannot be used to thwart either rights or responsibilities, and each participant is required to play his or her or their part in maintaining firm boundaries.

This is not to suggest, however, that public sector members of collaborative governance groups use their stewardship role to thwart the progress of the group or to shield themselves from full participation. Occasionally, in our experience, representatives of government agencies will assert their legal obligations in a way that stalls the group’s ability to reach decisions or take meaningful action. They will claim that they are somehow prohibited from doing one thing or another that would support the group’s work. Sometimes there is truly a legal snag. Sometimes, however, after further inquiry, it becomes clear that they are not legally prohibited from fully participating but that they are retracting because the process and the potential outcomes feel different from business as usual. That is a natural fear reaction, but it is incumbent on those public sector representatives to clearly distinguish between constitutional and legal limits on their authority and habits and practices that are constraining their ability to work in a different, more creative way.

The staff members of collaborative platforms also have a role to play in constitutional and legal stewardship. It is not necessarily realistic to expect that all government officials will have thought through the complexities of how the laws of multiple jurisdictions, as well as the United States Constitution, apply to the practice of collaborative governance. But because collaborative platforms are organizations that support multiple collaborative governance processes, the staff members of those organizations are likely to have at least some sense of the issues that might arise, and as a result, they can support the collaborative group in seeking counsel about any legal or constitutional questions that might arise. And while they are not in a position to give legal advice, staff members of the collaborative platform may also be able to help public sector representatives ask the right questions to untangle true legal limitations from habits that are impeding the progress of the group.

To guide their work, public sector members of collaborative governance groups, along with the staff of collaborative platforms, might ask themselves the following questions:

• • What are the goals and proposed actions of the collaborative group?
• • Is there specific constitutional authority for the proposed actions?
• • If so, what?
• • If not, is there implied authority?
• • Is there statutory authority?
• • Are there constitutional or other legal prohibitions that might affect the actions of the group?
• • Are there procedural requirements that the group should be considering as it does its work?
• • Is an identified barrier actually a legal barrier or is it a barrier created by habit?
• • Does the group need more information or legal advice to proceed?

Multi-axial Representativeness

As mentioned above, we occasionally hear the critique that collaborative governance processes bestow power on a group of unelected organizations and individuals who make decisions and expend public resources outside the authority and accountability bestowed by elections. In particular, we have encountered individuals and organizations who are already deeply concerned about government overreach, and they find the addition of unelected representatives to a decision-making process to be profoundly alarming. While we take that potential risk very seriously, in practice, one of the most effective inoculations against a claim of illegitimacy and overreach is to ensure that the collaborative group is broadly and deeply representative (see chapters 1 and 6). In fact, three of the four constitutional values identified by Vera Vogelsang-Coombs are implicated by representativeness in a collaborative process: representative governance, the protection of minority rights, and the engagement of a broad and diverse citizenry (81).

Collaborative governance, if practiced well, offers an alternative to the constricted sense of representation that is based entirely on elections. In fact, collaborative governance groups have the potential to be more accountable to more communities than election-based representative government. This is not to suggest that collaborative governance is a replacement for the traditional system, but rather that by bolstering and enriching representativeness in collaborative processes, collaborative groups can increase participation in important public efforts, particularly among historically underrepresented communities.

We find the work of Nadia Urbinati and Mark Warren to be particularly instructive in considering some of the questions surrounding representativeness. As they point out, the central feature of traditional, electoral representativeness is based on geography:

Beginning with the formation of the modern state, territorial residence became the fundamental condition for political representation—a condition more inclusive than status- and corporate-based representation. Indeed, territory has had an important historical relationship to political equality that carried over into modern times. (389)

Consequently, elected representation is an important, though limited, sense of representation. Individuals are affected by public decision-making in many cross-cutting ways that are never fully considered in geographic representation, such as “religion, ethnicity, nationalism, professional identity, recreation, gender identity, and many social movements” (Urbinati and Warren 390). In addition, many constituencies are not fully represented in the electoral system because of interlocking factors like age, legal status, disenfranchisement, and voter suppression.

Occasionally in our projects, staff members of elected officials or even of public agencies will resist expanding the membership of a collaborative governance group, claiming that they represent “the people” because they are appearing on behalf of a duly elected government. In one project we were involved with, a city staff person who worked for one of the regulatory departments initially advocated against including a broad range of community-based organizations on a project team, arguing that she and other city employees rightfully represented the public interest. In the end, we worked with her to recognize that many members of the community saw the city as a stakeholder representing its own interests in that particular project, making it difficult or impossible for city staff to represent the broad range of opinions and interests that existed in the public at large.

As articulated in the preceding chapter, modern collaborative governance arose in large part because of the increasing complexity of public issues. As the issues become more complex, so do the demands of representativeness. Embracing a more intersectional and nuanced sense of representation is a necessary part of collaborative governance practice.

Moreover, it has become clear that, in the United States, individuals’ fates are often tied to their zip codes with regard to safety, education, public health, access to green spaces and healthy food, and on and on. In addition, some of the most pernicious forms of institutional and structural racism have been codified through residential segregation, using tools like red-lining and restrictive covenants. As a result, tying representation only to geographic residence may well reinforce those disparities and injustices.

Once again, we find the pathway to a more inclusive sense of representativeness in the practice itself. As Urbinati and Warren put it, “fair representation requires some relationship of trust between individuals and representatives, based on shared experiences, perspectives, and interests” (394). To simplify a bit, and to bring Iris Marion Young’s thinking to bear on the realities of collaborative governance in practice, robust representativeness has three prongs: (1) authority to represent a particular group, (2) behavior consistent with the interests of the represented group in the course of the collaborative governance process itself, and (3) accountability to the represented group (134; Urbinati and Warren 394-95).

Authority

First, of the three prongs of representativeness, authority is the thorniest in the context of collaborative governance. The authority analysis for government participants is relatively straightforward because they are authorized by elections at various levels. But, as Urbinati and Warren point out, in community-based processes, there is a proliferation of “self-authorizing” representatives (403).

Many of the non-governmental participants in collaborative governance processes are self-authorizing in the sense that they represent nonprofits or associations that rely on individuals to voluntarily step forward to help achieve the mission of the organization. On one hand, these participants play a very important role in rounding out the representativeness of a collaborative group. However, self-authorizing representatives are, well, self-authorizing, so it is incumbent on the collaborative group to be attentive to the source of the authority claimed by a particular participant and especially to the other two markers of representativeness—representative behavior during the course of the collaborative process and accountability to the represented group. Nonetheless, policing the representative authority of other members of the collaborative group might well be both outside the expertise of group members and be a source of tension that could ultimately inhibit the group’s ability to achieve its substantive goals.

Again, a collaborative platform could play an important role in helping the group determine who has the authority to represent a particular interest, particularly in the assessment phase. As set forth in chapter 5, a well-designed and thorough assessment—with an eye toward inclusiveness and belonging—can help identify both the interests at stake and participants who can legitimately and effectively represent groups potentially affected by the outcome of the process.

Behavior Consistent with the Interests of the Represented Croup

With regard to representativeness during the course of the process itself, it is important for the collaborative group to ensure that the interests of represented groups are being raised and discussed regularly in the process. Often this can be achieved through a series of well-timed questions from either participants or the facilitator for the group. Any collaborative governance group should check in regularly to ensure that the interests of the “table behind the table” are being surfaced and thoroughly considered as the group conducts its work.

There also may come a time in a process when the collaborative governance group might also need to consult with the broader community or some subset of the most affected communities. As George Fredrickson put it, in the context of public administration, “the more difficult task ... is accounting for the wellbeing and interests of the inchoate public” (410). In order to ensure that the collaborative group represents all affected interests, particularly diffuse interests, it will likely need to engage a broader public at one or more points using the tools of civic engagement and public participation (see chapter 7).

Accountability

Accountability likely is the easiest prong of representativeness to consider in a collaborative process. In the case of the public sector, accountability is imposed most directly through elections, but it is also exercised through feedback— sometimes vociferous feedback—from the public. In the current era, similar interaction is easily sought and received between self-authorized representatives and the groups they purport to represent. Membership organizations can hold internal deliberations and/or vote about how they want their interests represented in a collaborative process. And other identity and interest groups can express their pleasure—or more likely displeasure if accountability is at issue—through a variety of means, including online and through formal and informal media outlets.

This is also another place where the collaborative platform staff might play a helpful role. Again, if it is unclear whether particular team members are effectively representing the interests at stake, the facilitator can ask questions to determine the extent to which team members are staying in touch with the communities they purport to represent.

Focused attention on representativeness is an effective antidote to the critique that collaborative governance is a Trojan horse for unelected and unaccountable stakeholders who might use a process to press for their own advantage. In fact, if practiced well, collaborative governance can offer more robust democratic accountability than that afforded by elections alone.

Transparency

All of this, of course, depends on represented groups and other affected parties knowing what is happening during a collaborative process. Transparency has become one of the primary means by which democratic norms are enforced. In 1913, Supreme Court Justice Louis Brandeis colorfully wrote that “sunlight is said to be the best of disinfectants” (ch. 5). Similarly, in signing what he called the “Open Government Initiative,” President Obama asserted that “openness will strengthen our democracy and promote efficiency and effectiveness in Government” (United States Executive Office 4685-4686).

Because public sector participants are central to collaborative governance processes and because the processes themselves often involve a public benefit, government transparency laws from multiple levels often apply to processes. Of course, the representatives from those government entities are responsible for meeting their own professional and legal obligations, but it is important for both the collaborative group and the staff of the collaborative platform to recognize that transparency is a good in and of itself that may enhance the legitimacy of the process. As a result, legal standards that apply to particular participants may well be a floor rather than a ceiling for communicating with the public. If the proceedings are transparent to the broader public and to the affected communities, it is much more likely that the collaborative governance process will meet the necessary legal standards and will more fully represent the needs of the communities affected by the process.²