Abstract
Published 30 years ago, my article on “Public Administrative Theory and the Separation of Powers” introduced what is often called the “three perspectives” approach or framework for understanding public administration at a macro-level by viewing it through the lenses of management, politics, and law. Each of these perspectives is anchored in a function of government—execution, legislation, and adjudication respectively—which at the U.S. federal level is housed primarily in the institutional structures of the executive branch, Congress, and the courts. The article has been reprinted several times in edited works and widely cited while the textbook elaborating on it, Public Administration: Understanding Management, Politics, and Law in the Public Sector (1st ed., 1986), has gained widespread adoption. The present article reflects on what the three perspectives framework did, did not do, and whether it is useful in application to the vast changes in public administrative thought and practice that have occurred since its publication. Specifically addressed are whether the framework retains utility in the wake of reinventing government and the advent of collaborative governance as well as how it might be strengthened to inventory and cumulate public administrative knowledge in the future.
Keywords
Why Reflect?
“Public Administrative Theory and the Separation of Powers” appeared in the 1983 May/June issue of Public Administration Review (PAR). The idea came out of the blue and was so straightforward that the article virtually wrote itself. Chet Newland, then editor-in-chief of PAR, sent the manuscript to six reviewers, five of whom recommended publication with minor revisions and a sixth who advised rejection on the basis that it was not research and, if anything, should be the basis of a textbook (which I later wrote). Three years later, Dwight Waldo characteristically summarized its content much more succinctly and clearly than I could:
David Rosenbloom has set forth the structure of the problem before us. For each of the three constitutional branches, he points out, there is a body of doctrine, set of values, collection of instruments, and repertoire of procedures. For the executive branch the “cluster” is administrative, managerial, bureaucratic, and the emphasis is upon effectiveness and efficiency. For the legislative branch the cluster is political and policy making and the emphasis is upon the values of representativeness and responsiveness. For the judicial branch the cluster is legal, and the emphasis is on constitutional integrity on one side and substantive and procedural protections for individuals on the other. Realistically our public administration does consist of varying mixtures of these three approaches or clusters. It is not just undesirable, it is impossible to narrow the concerns of public administration to any one of them. Our task is to find the proper way to put the three together (B. Brown & Stillman, 1985, p. 463-464).
The article is reprinted in Shafritz and Hyde’s, Classics of Public Administration (2012) and in a few other anthologies. Its framework is the focus of a chapter in Huang Ding’s, A History of Western Administrative Theories (2004, p. 415-439 [in Chinese]). The textbook elaborating the framework, Public Administration: Understanding Management, Politics, and Law in the Public Sector (4th ed., 1998) was ranked the fifth most influential book in the field published between 1990 and 2010 (Kasdan, 2012). Besides its U.S. audience, in translation or English, it is used as a core text in virtually all of China’s 150 plus Master of Public Administration (MPA) programs and to the best of my knowledge as a core or assigned text in Canada, Hong Kong, India, Indonesia, Iran, Israel, Kyrgyzstan, Lebanon, Malaysia, Netherlands, Portugal, Republic of Georgia, Singapore, South Korea, Taiwan (Republic of China), Thailand, Ukraine, and United Arab Emirates. 1 Insofar as I can gather from faculty in Hong Kong and several of these countries, the book is often used to educate MPA students on how to apply the three perspectives in their own administrative settings rather than to learn about U.S. public administration per se. For instance, in Hong Kong, mainland China, Taiwan, and Israel some professors require students to analyze current local public management issues from each of the three perspectives with adaptations to their own administrative, political, and legal systems. In view of this history, reflections on what the article did and did not do, and whether it remains relevant to today’s much changed public administration may be warranted.
What the Article Did
The central premise of the article was nothing new. At least as far back as Hamilton’s, Federalist 72, it has been thought that public administration “comprehends all the operations of the body politic, whether legislative, executive, or judiciary” (Cary & McClellan, 2001, p. 374). Echoing this theme in response to the heavily executive-centered President’s Committee on Administrative Management Report (1937), Meriam (1939) averred that “under our system of divided powers, the executive branch of the national government is not exclusively controlled by the President, by the Congress, or by the courts. All three have a hand in controlling it, each from a different angle and each in a different way” ( p. 131). The article’s contribution was to provide a structural-functional framework and institutional anchor for thinking about these different angles.
The framework views public administration theory and practice through the separate, but capable of overlapping lenses of management, politics, and law. Each lens shows a well-established received approach for structuring thinking about how managerial, political, and legal values have developed and driven public administrative organizational structures and conceptualizations of individuals who are affected by administrative decisions, behavior, and operations. Building on this framework, the textbook later added each approach’s view of budgeting, decision making, and knowing cognition; see Figure 1 for an updated version.
Management, politics & law in public administration.
What Other Frameworks Do
The three perspectives framework achieved its measure of success in part because it has a straightforward simplicity in a public administrative literature of considerable complexity (e.g., Raadschelders, 2011). However, the same can be said of other frameworks that have nevertheless lacked its explanatory power (and global reach), probably because they are not well-anchored structurally, functionally, or institutionally in government or governance. Those of James Q. Wilson, Herbert Kaufman, Donald Kettl, Paul Light, and Christopher Hood—all outstanding leaders in the field—illustrate the need to ground frameworks in what public administration does or is legally mandated to do rather than in public administrative thought or historical development alone.
James Q. Wilson’s “bureaucracy problem” is a brilliant, very parsimonious analysis of conflicting values in public administration. These are accountability and control, equity in the sense of procedural regularity, efficiency, responsiveness, and fiscal integrity (Wilson, 1967). Wilson elaborates upon each and shows how they can be in tension or conflict with one another. Few would argue that these values are not present in U.S. public administration. The “bureaucracy problem,” as Wilson explains, is that in practice all cannot be pursued successfully at once and there is no agreed upon means of prioritizing them. A major limitation of Wilson’s framework is that there is no theoretical basis for excluding other values, such as social equity, building trust in government, and “citizenship outcomes” regarding social capital, efficacy, political participation, and civic engagement (Van Ryzin, 2011; Wichowsky & Moynihan, 2008).
Kaufman (1969) relies on historical analysis to support his contention that U.S. public administration is framed by three overarching, largely incompatible values: executive leadership, politically neutral competence, and representativeness. He argues that there is a cyclical feature built into our “governmental machinery” that accounts for the periodic rise to dominance and subsequent partial eclipse of each value. This framework for explaining what might be called macro-public administration has two limitations. First, anchoring a cyclical mechanism in history is problematic. History is often a useful guide, but it may not be a helpful predictor in the face of substantial incremental or radical change. That the nation may have gone from executive leadership in the late eighteenth and early nineteenth centuries to representativeness before the Civil War and politically neutral competence afterward, does not logically predict the same cycle will repeat indefinitely. Neither can it specify length of the periods from one shift to another. Kaufman viewed representativeness as the emergent value in the 1960s. The cyclical theory predicts that subsequently representativeness would be overtaken by neutral competence as in the 1880s, but executive leadership was more characteristic of President Ronald Reagan’s administration, in which the newly established career Senior Executive Service was largely displaced by political appointees who promoted the president’s agenda (Lynn, 1984). Second, conceptually, the mutual exclusiveness of or tension between executive leadership and neutral competence is unclear. Both can fit into a managerial approach. President George W. Bush relied on version of unitary executive branch theory to assert strong presidential leadership, yet he also introduced the president’s Management Agenda, the Program Assessment Rating Tool (PART), and scorecards to improve the federal service’s managerial competence (Rosenbloom, 2010).
Kettl (2002) notes that U.S. public administration contains four inherent intellectual strands, each reflecting a facet of political culture and represented by a major political actor: Hamiltonian (vigorous, strong executive, top down), Jeffersonian (limited, weak executive, bottom up), Madisonian (subordination to systematic checks and balances); and Woodrow Wilsonian (professional, hierarchical, bureaucracy-centered; Kettl, 2002). How deeply these approaches are grounded in U.S. public administrative practice and thought is an open question as the title of Newbold’s book on Jefferson’s contributions to public administration, All But Forgotten (2012), suggests. Moreover, there is no theoretical basis for assuming that a strong executive cannot be coupled with an effort to limit the scope of government, President Reagan being an example. Indeed, Kettl identifies four pairings of these intellectual currents, which detracts from their individual explanatory power: Hamiltonian–Wilsonian, Hamiltonian–Madisonian, Jeffersonian–Wilsonian, and Jeffersonian–Madisonian. Although Kettl cannot be faulted for focusing on U.S. administrative traditions, whether the Madisonian approach, replete with checks and balances, can travel well remains an open question. For instance, Ackerman (2000, pp. 724-725) observes that from a historical perspective it is “important to recognize that America really is exceptional in its relatively benign experience with its familiar forms of separation” of powers. He notes that although newer democracies in Latin America, Asia, and Eastern Europe have largely chosen presidential or avoided pure parliamentary systems, “by separating power among President, House, and Senate, the Madisonian pattern not only generates a host of lawmaking pathologies, but also disrupts the coherence of professional public administration.” Moreover, established parliamentary democracies violate Madisonianism by fusing legislative and executive power and, in some cases, unicameralism.
Light (1998) maintains that four “tides of reform” have defined U.S. federal administrative reforms since 1945: scientific management (organization, reorganization, merit and position classification systems); war on waste (reducing waste, fraud, and abuse); watchful eye (transparency, inspector general and legislative oversight), and liberation management (internal administrative deregulation and employee empowerment). He links each of these to the institutional power of the president or Congress and finds “surprising” congressional deference to the president “with regard to the war on waste” (Light, 1998, p. 206). However, Congress’ institutional role in federal administration is about capacity as well as power (Rosenbloom, 2000). Congressional structure makes administrative coordination difficult if not impossible with regard to something like the Paperwork Reduction Acts (1980, 1995), which are intended to curb agencies’ voracious and often duplicative appetite for information from the public. Said to consume 6.5 billion hrs annually at a cost equal to 9% of the GDP in 1994, there was no choice but to call on the U.S. Office of Management and Budget (2003) to try to coordinate agencies’ collection of information (Strauss, Rakoff, Schotland, & Farina 1995, p. 872) Because structure as well as function matters, a traditional competitive separation of powers model has limitations in explaining the administrative reforms associated with each tide. Nevertheless, Light’s framework has the advantage of being anchored in legislation and, to some extent, institutional interests.
Hood’s “A Public Management for All Seasons” probably did as much as any article or book to explain the New Public Management (NPM) to the public administration community of academics, practitioners, and pracademics (Hood, 1991). He frames the NPM as having three sets of values: Sigma, “keep it lean and purposeful"; Theta, “keep it honest and fair”; and Lambda, “keep it robust and resilient” (Hood, 1991). Each value set has a standard of success and failure, currency of success and failure (money/time, trust and entitlements, security and survival), control emphasis (output, process, input/process), goals, approach to information, and level of coupling (tight, medium, low). Sorting out these value sets and attaching them to institutional, legal, cultural, scientific, or theoretical foundations is not easy. Theta and Lambda match up reasonably well with law and management, respectively. Sigma is close to Light’s war on waste, which in the U.S. is associated with the Congress. On their own, however, sigma, theta, and lambda have either no current meanings or multiple meanings saying little or nothing about public administration. Clearly better terms would be helpful. The larger problem is that from a public administration perspective, management, including NPM, is only part of the picture. Public agencies are charged with implementing public values that reflect political and legal concerns that are largely extrinsic to their core missions. In the U.S., these public values are often found in administrative law and fall into at least two categories, those that (a) advance political system attributes such as transparency (freedom of information, open meetings), protection of individual privacy, procedural due process, and public participation (in rulemaking, for example) and (b) promote macro-policy objectives that cut across core administrative missions such as family stability and functioning and environmental justice and sustainability (Rosenbloom, 2012; Rosenbloom, 2003, p. 73-74, chapters 4-5; see also Nabatchi, 2012).
Providing an Anchor in Governmental Functions
Perhaps the main contributor to the impact of “Public Administrative Theory and the Separation of Powers” has been to anchor its framework in the functions of government. At the U.S. federal level, the functional approach gains strength from the separation of powers as, for the most part, each approach is associated with a constitutional branch of government having a distinctive organizational structure. This is important in understanding how the three approaches developed in U.S. public administrative thought. Being anchored in both functions and the institutional structures in which they are primarily housed adds clarity. Based on the framework’s ability to travel globally as well as to more unified U.S. local governments, it is the functions rather than the institutional structures that probably matter most. This is apparently why the textbook based on the three lenses framework is so widely used internationally despite its grounding in the U.S. constitutional separation of powers. All national, provincial, state, and many local governments execute, legislate, and adjudicate and consequently engage in management, politics (allocating services, building and maintaining coalitions, and policymaking), and rely on law to establish jurisdictional boundaries, procedures, rights, responsibilities, conflict resolution systems, and remedies for illegal practices. The Progressive era view that cities and public authorities for infrastructure could be managed without regard to political considerations has long since been debunked and, in the U.S., lawsuits against them are common (Caro, 1974; McCarthy & Reynolds, 2003, chapter VI; Nalbandian, n.d.).
The public values governments attach to execution, legislation, and adjudication and how they organize, think about, and implement them vary tremendously. The relative strength of each function also differs among governments and regimes. However, as Waldo noted, public administration does consist of a mixture of these functions. Perhaps the only exceptions would be lawless dictatorships or autocracies based on terror, coercive power, or charisma.
What the Article Didn’t Do
Aside from failing to recognize that the managerial, political, and legal approaches to public administration gain strength from but do not depend on the separation of powers, as explained above, the article, book, and framework require clarifications and attention to their limitations. First, the article should have been more explicit in defining politics. The term is used in the Lasswellian sense of “who gets what, when, how” (Lasswell, 1950). This incorporates political activity such as coalition building, cooptation, and generating support among legislators, stakeholders, and other relevant groups, the allocation of services and constraints, as well as the policymaking operations delineated by the “policy cycle” (agenda setting, policy formulation, adoption, implementation, evaluation/assessment, and succession, revision, or termination). “Politics” in the article is intended to include much of the literature on bureaucratic politics and public policy making and implementation. Although electoral campaigning, overt partisanship, organizing political parties and movements, office politics, and similar activities are clearly relevant to Lasswell’s concept of politics, “politics” in the framework is not intended to focus on or even include such behavior. This has caused confusion, especially abroad.
Second, the framework is based on the premise that in the U.S. the separation of powers collapses into public administrative practice and in some cases into individual agencies that exercise executive, legislative, and judicial powers. The administrative state and many of its agencies execute (implement, enforce), legislate (engage in rulemaking and policymaking), and adjudicate. Consequently, the managerial, political, and legal approaches are simultaneously in use in the executive branch, some of its units, and in administrative agencies outside the executive branch, such as independent regulatory commissions (see Humphrey’s Executor v. U.S., 1935). Although some agencies are primarily concerned with management functions, some with adjudication, and others with legislating (rulemaking), the intent was not to say that in addition to management, which is ubiquitous, one or both of the other functions could not be housed in the same administrative structure. Similarly, there is no reason why a policy or program cannot have managerial, political, and adjudicatory attributes as is common in regulatory administration. For instance, the Federal Occupational Safety and Health Administration makes and enforces rules and the Occupational Safety and Health Review Commission adjudicates actions brought against regulated entities.
The combination of management, politics, and law can also be found outside the executive branch. When courts engage in remedial law, they adjudicate, then set standards for institutional reform, which is a legislative function, and oversee their execution (Chayes, 1976; Rosenbloom, O’Leary, & Chanin, 2010, pp. 288-292). Legislatures have adjudicatory functions in trying impeachments and managerial ones in internal budgeting and administering their facilities and personnel systems. In short the three perspectives are not mutually exclusive and all three can be brought to bear on agency and programmatic activity, as well as in institutions primarily responsible for adjudication and legislation.
Third, the framework explicitly recognizes that the approaches are in tension or conflict with one another. However, it does not go very far in indicating how to prioritize and deal with tradeoffs among them. At best it suggests that management should dominate where high reliability organizations and public safety are concerned; the political approach is appropriate where issues involving long term public interests, such as environmental sustainability and conservation, are involved; and the legal approach is most suitable for balancing individual contractarian constitutional rights and other legal interests against public administrative and policy utilitarianism and the exercise of government authority.
Finally, and perhaps of greatest importance, the framework is based on the major historical values that had come to dominate public administrative thought and practice by the early 1980s, as I understood them. The article notes that each of the three “approaches has a respected intellectual tradition ” (Rosenbloom, 1983, p. 219) and explained the sources of these traditions. The values associated with management, politics, and law in the framework are embedded in the Constitution, statutes, executive orders, and judicial decisions as well as public administrative thought. In various contexts, they are binding on administrative practice.
One can point to other values that share these qualities. However, they have a weaker presence in public administration’s intellectual traditions, constitutional and administrative law, and practice. This, of course, is not immutable. Other values can join or displace those in the framework. Social equity, social capital, citizen engagement, and vibrant democracy are obvious contenders. However, such values will have to achieve primacy not only in administrative thought, but also in law and practice before they can do so. Representative bureaucracy may be the best example. Once viewed as anathema in the U.S. Civil Service Commission and a threat to the merit system, it was written into the Civil Service Reform Act of 1978 (section 310; Rosenbloom, 1977). The three perspectives framework is government centric, whether its utility would be diminished or eliminated by a more citizen centric public administration is worthy of consideration in our literature (e.g., Nabatchi, 2012). To date, though the framework has been able to accommodate considerable change in how public administration is conceptualized and practiced.
Is the Framework Still Relevant? Reinventing Government, New Public Management, and Collaborative Governance
Since the early 1980s at least two major thrusts have emerged in public administration that could not be anticipated when the three perspectives framework was developed: reinventing government/NPM 2 and collaborative governance. The framework easily accommodates reinvention/NPM. The fourth edition of Public Administration: Understanding Management, Politics, and Law (1998) split the management lens into “traditional” and “NPM variant.” This was not difficult because reinvention/NPM are approaches to management based on broad theory that provides relatively coherent, if incomplete, bases for conceptualizing public administration. Their core propositions regarding government and administration fit together reasonably well: steer rather than row; focus on and be driven by customers; emphasize performance, effectiveness, innovation, entrepreneurship, employee empowerment, market mechanisms, and outcomes rather than inputs and procedures; and frame political accountability in terms of policy and program results achieved. Reinvention and the NPM’s greatest limitations in theory are similar to those of Hood’s framework, mentioned above. They do not accommodate public values that are central to public administration but extrinsic to the core missions or raison d’être of most agencies. This failure is related to focusing on customers more than on citizens or long term public interests. Reinvention and the NPM are also based largely in utilitarianism which is in tension with U.S. contractarianism and rights-based aspects of code and common law (Rosenbloom, 2003, p. 172-176). In practice, coordination, accountability, and performance have been issues (Gazell, 1997; Peters, 2004).
Collaborative governance presents a different challenge to the three perspectives framework. 3 Although based on steering-not-rowing and some overlaps with the propositions on which reinvention and the NPM are framed, the governance approach developed more out of practice than theory. The field is currently grappling with it and engaged in theory building and testing regarding its myriad aspects. Collaborative governance lacks a standard definition. All analysts probably agree that shared authority is a key feature of public sector collaboration in all its forms. Some authors distinguish between collaborative governance and contracting out. Brudney, Cho, and Wright (2009, p. 117) state that “Contracting for service delivery may qualify as fitting under the rubric of collaboration,” which can be described as “something less than authoritative coordination and something more than tacit cooperation.” However, they also write, “Formal contracting is often linked to hierarchical, or principal-agent relationships, whereas collaboration is usually understood as a convergent arrangement among organizations that have similar and congruent goals but are not bound by authority relationships” (Brudney, Cho, & Wright, 2009, p. 127). Similarly, Van Slyke (2009, p. 140) views collaboration and contracting as sometimes overlapping and neither “antithetical to one another” nor identical. To those concerned with governmental regulatory policy and procedure, collaboration suggests regulatory negotiation (reg-neg) (Harter, 1982; Rosenbloom, 2003, pp. 70-71). Theorists of public administration, bureaucracy, and democracy think of collaborative government in terms of citizen participation (Bingham, Nabatchi, & O’Leary, 2005; Kweit & Kweit, 1981).
However defined, collaborative governance can serve multiple purposes. Overall, it provides a way of leveraging the strengths of for profit and nonprofit organizations and other entities, including the public, to support the achievement of governmental objectives. It can enhance cost-effectiveness (Savas, 1987 ); take advantage of nongovernmental entities greater degrees of specialization, expertise, and capacity (Van Slyke, 2003, p. 302); serve as a means of subsidizing organizations, such as small and disadvantaged owned businesses and faith based nonprofits (Formicola, Segers, & Weber, 2003); provide flexibility in adjusting to changes in governmental workloads; offer creativity to the extent that nonprofits have greater “ability to ‘think outside the box’. . . [and] ‘creative capability’” (Van Slyke, 2009, p. 150); enable circumvention of constitutional and legal constraints that apply to government but not to private entities; 4 and promote political objectives through the distribution of government funds. 5 One of the challenges governance presents in matching collaborative arrangements to these purposes or mixes of them. Although cost-effectiveness will almost always be a consideration at some level, it cannot be the sole consideration when other purposes are significant or paramount.
It should be immediately evident from the multiple purposes governance can serve that management, politics, and law are relevant to collaboration in the provision of public services and constraints.
Management. A great deal of the literature on collaborative governance is devoted to management issues. Familiar topics include contract management and monitoring, performance measurement, rightsizing transaction costs, managing networks, and developing effective principal-agent relationships (T. Brown & Potoski, 2003; O’Leary & Bingham, 2009; Van Slyke, 2003). This literature analyzes a litany of topics dealing with “the interdependence of the stakeholders,” “the ability to address differences constructively,” “joint ownership of decisions and, collective responsibility for the future of the partnership” as well as writing complete and incomplete contracts (O’Leary, Gazley, McGuire, & Bingham 2009, pp. 4-5; Van Slyke, 2009). These topics are now so ingrained in the field of public administration/public management that Posner (2009, pp. 249-250) calls for MPA curriculum reform emphasizing “third-party management,” “more focus on networks and other more decentralized models of public action,” “managerial economics,” “governmental tools,” “the revenue side of government,” and “a capstone course in which students are required to use tools and . . . network frameworks to assess significant third-party government policy and management issues involving the intersection of multiple tools and sectors.”
Politics. Van Slyke (2003, p. 307) concludes that “What we learn from studying the government–nonprofit contracting relationship is that privatization is more a political than an economic act.” Collaborative government is often driven by “politically symbolic reasons,” or real ones for that matter, “to demonstrate that government is getting smaller, working more efficiently by disengaging itself from direct service delivery, and not encroaching on private markets" (Van Slyke, 2003, p. 307). (Re)building citizen trust in government is another common political objective (Gore, 1993). The distribution of public resources is inherently political and will inevitably work its way into some contracting decisions. Noncontractual collaborative arrangements presumably serve the interests of all parties involved and can enhance the status and perhaps revenue raising abilities of nonprofits. When collaborative governance is analyzed from political perspectives, political objectives will be central and the managerial concerns noted above will be of secondary significance. The temptation to distinguish public administration, in which the importance of political context is widely recognized, from public management, which may downplay it, is countered by Van Slyke’s findings that public managers at the county and state levels as well as the executive directors of nonprofits view collaborative governance as intensely political (Van Slyke, 2003).
Law. Law is also of importance to collaborative governance arrangements. The centrality of law to contractual relationships is clear. More broadly collaborative governance raises the issues of how to define inherently governmental functions, determine when entities collaborating with government become” “state actors” for constitutional purposes, and whether to subject them to the administrative law constraints that regulate government agencies.
Statutes dealing with governmental outsourcing and collaborative governance, such as the Federal Activities Inventory Reform Act of 1998, are premised on a legal distinction between activities that are inherently governmental and those that are not. The legal concept of government sovereignty is generally thought absolutely to preclude private entities from steering and potentially from rowing in some areas of public administration. However, no broad bright line between inherently governmental and other functions has developed. Savas (1987, p. 62) takes a maximal position on outsourcing:” “. . . false alarms are raised about privatizing services that are said to be ‘inherently governmental’: the responsibility for providing the service can be retained by government, but the government does not have to continue producing it.” At the state and local governmental levels he appears to be correct, as Light (1999, pp. 9-10) observes: “But for a handful of functions dealing with national security and criminal justice, it is not clear that there is a pure and inherently governmental function left today.” Others, including the presidential administrations of George W. Bush and Barack Obama have favored limiting competitive sourcing to commercial functions (i.e., noninherently governmental activities). Under Bush, the Office of Management and Budget (OMB) defined “inherently governmental” as “. . . activity that is so intimately related to the public interest as to mandate performance by government personnel. These activities require the exercise of substantial discretion in applying government authority or making decisions for the government. Inherently governmental activities normally fall into two categories: the exercise of sovereign government authority or the establishment of procedures and processes related to the oversight of monetary transactions or entitlements” (OMB, 2003, p. 5-6).
Noting that the cost of federal contracts rose from US$71 billion in 2000 to US$135 billion in 2008, President Obama found this definition inadequate: “the line between inherently governmental activities that should not be outsourced and commercial activities that may be subject to private sector competition has been blurred and inadequately defined. As a result, contractors may be performing inherently governmental functions” 6 (Obama, 2009). He gave OMB the lead responsibility for the unenviable task of developing a better definition of inherently governmental (Obama, 2009).
After soliciting comments on a proposed policy letter in the Federal Register, OMB’s Office of Federal Procurement Policy (OFPP) issued a final letter on September 12, 2011 (OFPP, 2011). Its overall purpose is to guarantee that “the act of governance is performed, and decisions of significant public interest are made, by officials who are ultimately accountable to the President and bound by laws controlling the conduct and performance of Federal employees that are intended to protect or benefit the public and ensure the proper use of funds appropriated by Congress” (OFPP, 2011, p. 56236). The final Policy Letter defines an inherently governmental function as “a function that is so
The terms highlighted in bold above add a substantial legal dimension to federal collaborative governance arrangements. Assuming justiciable legal controversies can be framed, they beg for interpretation by the federal courts. Even in the absence of litigation, they will have to be defined in particular instances by the OFPP and other units of the government and are likely to find their way into statutory language regulating collaborative governance practices, including outsourcing.
Law will also be a basis for addressing the question of when, if ever, nongovernmental entities performing work similar to that of public agencies should be subject to the constitutional and administrative law requirements, such as procedural due process and freedom of information, that apply to government itself (Rosenbloom & Piotrowski, 2005). The application of constitutional constraints to private entities engaged in collaborative governance is addressed primarily through “state (i.e., governmental) action” doctrine, which is notoriously fact dependent, ill-defined if not wholly abstruse, and difficult to apply (Brentwood Academy v. Tennessee Secondary School Athletic Association [2001]; Rosenbloom & Piotrowski, 2005). The core principle is that “state action may be found if, though only if, there is such a ‘close nexus between the State and the challenged action’ that seemingly private behavior ‘may be fairly treated as that of the State itself’” (Brentwood Academy v. Tennessee Secondary School Athletic Association, 2001, p. 295). However, lines are fuzzy rather than bright because “What is fairly attributable is a matter of normative judgment, and the criteria lack rigid simplicity” (Brentwood Academy v. Tennessee Secondary School Athletic Association, 2001, p. 295).
At present, for profits, nonprofits, and other private entities 7 are most likely to become state actors when they are engaged in a public function, such as prison management or providing health care in prisons, joint participants or “entwined” with government in public–private partnerships or other arrangements, or controlled by government despite their ostensible independence (Brentwood Academy v. Tennessee Secondary School Athletic Association, 2001; Lebron v. National Railroad Passenger Corporation, 1995; Richardson v. McKnight, 1997; U.S. v. Price, 1966; West v. Atkins, 1988).
When a private entity becomes a state actor it is potentially liable in civil suits for money damages for the commission of constitutional torts (i.e., injuries to constitutional rights). At present, the circumstances in which private state actors will be entitled to qualified immunity from such suits insofar as they do not violate “clearly established [federal] statutory or constitutional rights of which a reasonable person would have known” appears to be fact dependent (Filarsky v. Delia, 2012; Harlow v. Fitzgerald, 1982, p. 818; Richardson v. McKnight, 1997).
The application of administrative law provisions to private entities in collaborative governance arrangements will depend largely on statutes and administrative regulations. For instance, at the federal level the Openness Promotes Effectiveness in our National Government Act (OPEN Government Act) of 2007 extends freedom of information to “any information” held by a private entity “that would be an agency record . . . when maintained by an agency” and to information maintained by a contractor “for the purposes of records management” (section 9). Several states have also applied freedom of information requirements to contractors (Rosenbloom & Piotrowski, 2005.) The Federal Acquisition Regulation is another vehicle for applying administrative law regulations to contractors. It requires those performing outsourced federal governmental functions to provide whistleblower protection to their employees and to adhere to the Privacy Act of 1974.
In assessing the relevance of the three perspectives framework in a period when much attention is focused on collaborative governance it is important to remember that collaboration is hardly coterminous with public administration or public management. Brudney, Cho, and Wright (2009, p. 122) remind us that “Roughly two-thirds or more of all state agencies rely on contracting. . . . Nevertheless, more than half the agencies allocate 10 percent or less of their budgets to contracting” and Posner (2009, p. 234) notes that contracts account for less than 20% of state budgets overall. Though budget figures may understate the extent of collaboration, it remains true that the vast bulk of government expenditures—and presumably, activity—does not involve collaboration and contracting. In fact, “contracting for the delivery of services may have peaked across state agencies in 1998” (Brudney, Cho, & Wright 2009, p. 122). At the federal level, prohibitions have been placed on competitive sourcing for several years and in fiscal 2012 expenditures on contracts constituted 14% of all federal spending, which was the lowest level since 2003 (Grasso, 2012; Hicks, 2012).
It should also be noted that there is no necessary theoretical or empirical connection between a government agency’s internal organization and its collaborative efforts. O’Leary and Bingham (2009, p. 257) observe that “a command-and-control model of management is not associated with collaboration.” In other words, hierarchical governmental organizations with internal command and control structures, such as police and fire departments, can collaborate, as can more participatory ones. Further, many—probably most—employees in those government organizations that do collaborate may not be directly involved in collaboration with for profits, nonprofits, or other private entities, managing networks, and so forth. It could well be that Weber (1958) still explains more about public administration/public management than does Kettl (2000; 2002), Savas (1987), Salamon (2002), or other contemporary analysts and advocates of collaborative governance. Consequently, although Posner (2009) is on solid ground in advancing MPA curriculum reform, we also need to ensure that our students are well versed in the broader managerial, political, and legal contexts of public budgeting and finance, human resources management, organizational behavior, decision making, program and policy evaluation, and other standard public administrative subjects.
Conclusion: Is Filling in the Three Perspectives Framework a Reasonable Next Step?
Thirty years after its publication,” “Public Administrative Theory and the Separation of Powers” remains relevant to our efforts to advance understanding of public administration. It has significant advantages over other major frameworks for organizing public administrative thought largely because it is anchored in the functions of government—execution, legislation, and adjudication—rather than in value sets, ideological currents or ideas about public administration alone, or putative historical cycles. It can encompass and be applied to reinvention/NPM and collaborative governance. At the U.S. federal level, it has the advantage of being embedded not only in the functions of government, but also in the institutional structures that house them.
Thirty years of relevance is a good shelf life for public administration publications, but can more be done with the three perspectives framework? Are there ways of further developing it that could strengthen its utility and explanatory power? One possibility is to build on enduring meso-theories and frameworks produced by public administration/public management research in order to fill in the managerial, political, and legal perspectives. It would take a book or at least a much longer article to review all of these. However by way of illustration, with regard to the political perspective, Lowi’s (1972) “distribution, regulation, redistribution, and constituent policy,” Wilson’s (1980) “politics of regulation,” and Heclo’s (1978) “issue network” models can be connected to management and law, as can Moe’s analysis of “The Politics of Bureaucratic Structure” (1989). O’Leary, Chanin, and Rosenbloom’s (2010) “judicial response to the administrative state” framework, first developed in the early 1980s, is clearly relevant to managerial decision making, human resources management, the political aspects of public budgeting, street-level administration, and the legal rights of individuals in the contemporary U.S. administrative state. Rosenbloom’s (2000) “legislative-centered” model, is relatively new, but may be useful in understanding how congressional involvement in public administration affects management and law.
Public administrative knowledge is arranged in a wide variety of ways. We have encyclopedias, handbooks, conceptual maps (Raadschelders, 2011), texts, tomes, specialized journals, articles, and other publications. Another potential approach to organizing our knowledge is to use the three perspectives framework as a means of inventorying what we know and has been of lasting value, as suggested above. Thinking of the three perspectives as a filing system with cross references might enable us to cumulate knowledge more effectively and better understand the interconnections of public administrative research and theory to the three “clusters-”—management, politics, and law—which, as Waldo observed, undeniably define much of “enterprise of public administration” (Waldo, 1980).
Footnotes
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.