Public Goods, Profits, and State Legitimacy
Nov 10, 2014
14 Min read time
Public Goods, Profits, and State Legitimacy
Against the Profit Motive: The Salary Revolution in American Government, 1780–1940
Nicholas R. Parrillo
Yale University Press, $55 (paper)
The Teacher Wars: A History of America’s Most Embattled Profession
Doubleday, $26.95 (cloth)
Rise of the Warrior Cop: The Militarization of America’s Police Forces
PublicAffairs, $17.99 (paper)
Adam Smith was not the first, but he was certainly one of the most eloquent defenders of justice delivered according to the profit motive. In The Wealth of Nations, he wrote that since courts could charge fees for conducting a trial, each court would endeavor, “by superior dispatch and impartiality, to draw to itself as many causes as it could.” Competition meant a judge would try “to give, in his own court, the speediest and most effectual remedy which the law would admit, for every sort of injustice.” Left unsaid is what this system does to those who can’t afford to pay up.
Our government is being remade in this mold—the mold of a business. The past thirty years have seen massive, outright privatization of government services. Meanwhile the logic of business, competition, and the profit motive has been introduced into what remains.
But for those with a long enough historical memory, this is nothing new. Through the first half of our country’s history, public officials were paid according to the profit motive, and it was only through the failures of that system that a fragile accountability was put into place during the Progressive Era. One of the key sources of this accountability was the establishment of salaries for public officials who previously had been paid on commission.
As this professionalized system is dismantled, once-antique notions are becoming relevant again. Consider merit pay schemes whereby teachers are now meant to compete with each other for bonuses. This mirrors the 1770 Maryland assembly’s argument that public officials “would not perform their duties with as much diligence when paid a fixed salary as when paid for each particular service.” And note that the criminal justice system now profits from forfeiture of property and court fees levied on offenders, recalling Thomas Brackett Reed, the House Republican leader who, in 1887, argued, “In order to bring your criminals against the United States laws to detection” you “need to have the officials stimulated by a similar self-interest to that which excites and supports and sustains the criminal.”
The dissolution of the old system, and its return with a vengeance, are the subjects of three recent books on the everyday lives of our front-line public employees. In Against the Profit Motive, legal scholar Nicholas R. Parrillo documents how the original system of commission-based public service grew ripe for corruption and was eventually curtailed through the bureaucratic innovation of the salary. The theories and history Parrillo documents form the perfect background for tackling the radical changes taking place in policing and teaching in recent decades, stories told in Dana Goldstein’s The Teacher Wars and Radley Balko’s Rise of the Warrior Cop.
• • •
Parrillo’s book is a deep and engrossing dive into the history of the provisioning of government services during the first 160 years of our country. During this period public officials’ incomes depended, directly and immediately, on the charging of fees. Judges were paid according to how many trials they heard, prosecutors depending on how many people were convicted. Clerks received income for every citizenship they granted and every parcel of land they approved as a homestead.
In order to make sense of how this system evolved, Parrillo divides public officials into those providing two types of public services and receiving two types of fees. The first type is facilitative payments. Officials received these kinds of payments in exchange for services provided to individuals, who are, in these arrangements, analogous to customers. The second type is bounty payments. In these cases, an official had to do something the affected person did not want or might resist. An official could receive facilitative payments for providing land grants or determining whether someone needed disability insurance. Bounties were paid for duties such as administering criminal justice and collecting taxes.
Facilitative payments had a basis in common law and went unregulated by statute from the founding until the mid-1800s. In practice, payments were negotiated on the spot between the official and the customer. This flexibility was supposed to ensure prompt services. The language of markets and profits dominated this logic; it was presumed that mutual benefit came from both sides adjusting the service and the pay until there was an agreement.
Public officials once operated for profit. Now that system has returned with a vengeance.
But the system came under scrutiny in the early nineteenth century. The first, and obvious, issue was that government officials could abuse their ability to charge fees. Public officials had a monopoly over a certain type of activity, and what looked like negotiation may have been more like extortion. As the population grew, a lack of social bonds made it harder to embed officials in communities, leading to more distrust and worries about abuse.
There was also the idea, emerging from that era’s republican view of the state, that the recipient was less a customer than “a citizen enjoying a right to the service,” as Parillo puts it. The public official should, in turn, be disinterested as to the outcome rather than driven by the prospect of personal benefit. The republican rejected negotiated fees, which allowed officials to pick winners by giving some citizens special deals, and worried that officials who spent their time cultivating their customer base were not acting in the public interest.
By the second half of the nineteenth century, these concerns led state governments to regulate the system by legislating a set fee for each official service. However, this approach proved a nightmare. Assemblies couldn’t enumerate all the services officials would be required to carry out and couldn’t articulate all the minor twists and turns that naturally came up in the daily business of government. Different people had different needs with respect to government services, so a set fee wouldn’t work. And even if well designed, these regulations could quickly become obsolete as government functions evolved.
Bounty payments, too, came under scrutiny and regulation, but for different reasons. As the nineteenth-century state evolved, rules of conduct were less and less products of community deliberation and instead were imposed by legislatures. Compliance could no longer be enforced simply through local sanctions. Someone would have to be professionally devoted to ensuring that laws and actions were followed. However, the officials tasked with enforcement often faced scorn and resistance from their communities. So, in the 1850s, lawmakers turned to bounty payments in order to encourage officials to enforce the laws.
But this approach soon proved corrupting, and it is easy to see why. Look at congressional complaints from the 1890s about prosecutors, on the eve of their being salaried; they read like today’s grievances. The record includes notes on “frivolous and unnecessary” prosecutions, “oppressions” of the people, and the “harass[ment]” of “poor men” for “trivial offenses.”
The bounty system also failed more fundamentally: it couldn’t enforce mass compliance with the law. Then and now, there simply isn’t enough enforcement or state-sanctioned violence to ensure the law will be followed. Instead the law needs legitimacy in the eyes of those who would enforce it as well as those subject to it. And the presumption that those who would enforce it are acting in good faith, rather than for their own private benefit, is essential for legitimacy in the modern state.
The solution to the problems of both facilitative and bounty payments was the salaried official. As the New York Times editorialized in 1884, “The cure for the evil is obvious. In the first place, the officers themselves should be deprived of direct personal interest in the fees paid for a public service by being themselves remunerated by fixed salaries.” Moving officials to salaries would both curb abuse and improve the legitimacy of the state by ensuring that public service would be performed only in the public interest.
Parillo’s is a major scholarly achievement, but he underplays its relevance for our current debates. There are roughly 3.7 million teachers and 670,000 state and local police officers in the United States. The members of these professions are among the most prevalent agents of state power, and the corrupting fee-for-service model is being restored to their work.
• • •
Dana Goldstein’s The Teacher Wars positions the current, highly charged battles over teaching in the United States in a larger historical context. Goldstein argues that we’ve been fighting over teachers since the early nineteenth century, and, for all that time, we’ve largely been fighting over the same things.
The book is fascinating, as Goldstein illustrates the debates through historical arguments and the people who made them. We learn about Catharine Beecher and Horace Mann breaking from the 1830s consensus to recreate schools as secular churches and the teacher as a low-wage and profoundly feminized job. We see teachers join the unionization movement in the 1890s to transform teaching into a proper profession, with decent pay and tenure to preserve their independence. Booker T. Washington and W.E.B. Du Bois quarrel over the proper curriculum for the education of black students. Major parts of the history of education that often get overlooked, such as the fate of black teachers at the dawn of desegregation and the experience of radical teachers under McCarthyism, are portrayed with detail that contextualizes them within the larger contest over schools policy.
The last third of the book is centered on the wave of education “reform” that began with the 1983 federal report A Nation at Risk. The report and its followers argued that not only was there a crisis in education, but the main problem was the teachers, who were viewed as both incompetent and indifferent to the success of their students. By the time Goldstein arrives at 2014, the teaching profession has been under siege for thirty years, with measures of teachers who are “very satisfied” with their job falling from 62 to 39 percent between 2008 and 2012.
Most policy journalism books have an awkward last chapter, where, after laying out an insurmountable problem, the author pitches vague ideas about hope and change. Goldstein’s final chapter on lessons for reformers reads more like the terms of a cease-fire. Her intent is to de-escalate tensions by reminding us that we’ve been through all this before. Certainly, she thinks, there is room for compromise between incumbent teachers and the reform movement.
But have we in fact been here before? The historical norm seems very distant right now. In The Teacher Wars, the past reveals a series of overreaches and retrenchments, a swinging pendulum. It could be a purge of left-wing teachers or a union blocking community control, as in Brooklyn in 1968; someone goes too far, and history turns against them, emboldening the other side.
Yet we are now thirty years into the current education reform movement, hands have been overplayed over and over again, and still there is no sign that reformers will stop at anything other than complete victory. The unions on the other side are barely holding on, suffering defeat after defeat in cities, states, and the courts. These teacher wars aren’t aimed at a new balance between varying interests. The stakes are larger, encompassing the notion of public education and the public itself.
Amid the pushes for merit pay, corporate and philanthropic support, and privatization, it is clear that establishing the profit motive in schools is essential to education reformers’ agenda. In this reform world, the ills of facilitative payments haunt us anew. Cheating by teachers and administrators in high-stakes testing has become more prevalent, which can be expected when education is designed as a competition among providers. Cream-skimming, whereby charter schools ensure that they admit the best of the students available, is a persistent worry among reform critics, as it is consistent with officials trying to run their schools like businesses. Pre-salary public officials operating with similar incentives competed for the easiest tasks and the best fees.
Under the reform program, education is no longer planted in a deeper notion of the public but instead functions as a thin, individualized service provided to a student. Goldstein ties Progressive-Era ideas such as Taylorization to the current moment, but the broader Progressive vision of the public has completely disappeared. As Goldstein notes, the view of education as one element within a larger system that nurtures children by fighting poverty, ending segregation, and asserting community control has all but evaporated. Under reform, the idea that the educator would play a role in this broader system has too. Reform instead offers public officials providing customer service. The deeper role of the state in everyday life is forgotten, and we are back to the fee-driven era and its discontents.
• • •
Where Goldstein sees historical continuity in the teaching profession, Radley Balko sees a historic break in policing. In The Rise of the Warrior Cop, Balko does an excellent job documenting the growth of the SWAT team and the legal innovation of the “no-knock warrant”—and how both have spiraled out of control.
In response to the Watts riots and other urban crises, as well as high-profile mass shootings such as the killing of sixteen people at the University of Texas, Austin, in 1966, Daryl Gates of the Los Angeles Police Department set up what were originally called Special Weapons Attack Teams. That quickly became Special Weapons and Tactics, but the name change did little for the popularity of the operation. SWAT teams were originally so unwelcome that they had to train in secret on city-owned farmland in the San Fernando Valley.
Militarization represents the abandonment of public legitimacy in criminal justice.
That, too, changed. The reputation of Gates’s SWAT program grew after a nearly disastrous raid against the Black Panthers, and the craze swept other cities. President Nixon came to office on a law-and-order platform, and President Reagan declared a war on drugs. Both cemented support for SWAT teams and for expansive use of no-knock warrants.
By the time the narrative gets to the present day, SWAT raids are performed so frequently and casually that abuses and failures are impossible to ignore. Wrong doors are kicked open; people are humiliated or worse; excessive use of force is common and commonly directed at nonviolent offenders.
The book is an expansion of Balko’s research and reporting on SWAT raids, and it is a fine summary of the material. However, his historical reading doesn’t point in a useful direction. The book opens with the question “Are cops constitutional?” and argues, surprisingly, that “even the early-nineteenth century police forces” likely were not. If Balko is right, even the salary revolution was beside the point, and our only acceptable choice would be a return to eighteenth-century notions of “individualized, private methods of law enforcement.”
Balko understands that such a system would be impractical in the twenty-first century, but he argues that the departure from it set up the problems we now face. Yet what we see today is exactly a blending of public and private punitive policing. Stand-your-ground laws, the explosion in private security guards, and the emergence of the profit motive in everything from prisons to probation coexist peacefully with mass incarceration and the SWAT team. Retreating into a purely private world is no answer to the challenge of police militarization.
Balko locates militarization in the growth of both SWAT tactics and the federal government’s bestowal of surplus army-grade weapons on local police, which finally horrified Americans after they saw snipers perched on armored personnel carriers rolling through the streets of Ferguson, Missouri. But this doesn’t fully describe what has gone awry in policing and criminal justice generally. Militarization occurs alongside aggressive felony filings by prosecutors, rigid sentencing requirements, drug prohibition, and zero-tolerance policing by everyday officers.
Here Parrillo’s argument is useful. Today militarization and tough-on-crime policy are joined by the profit motive to revive the problem of illegitimacy in something much like its nineteenth-century form. What undid the punitive bounty system was precisely its illegitimacy in the eyes of the people it exerted power over, and the desire to rectify it by building a legitimate state and bureaucracy in its place. But we now live in an era when the legitimacy of the state itself is under attack.
Militarization is best understood as an abandonment of public legitimacy as a goal for or justification of criminal justice. Enforcing the law exclusively by force and threat has become, in the eyes of law enforcement, tough-on-crime politicians, and officials committed to economistic “incentive” analysis of crime, sufficient to carrying out and justifying the purposes of the state. Legitimation of public power through popular consent, the evenhanded delivery of justice, and non-carceral solutions to lawbreaking are unnecessary, or even counterproductive, under this logic. Amid the delegitimization of the state itself, pure police power is left to fill in the gap.
• • •
Though the situation looks bleak, small pockets of hope are visible. The actions of police, particularly in the aftermath of the shooting of Michael Brown, have prompted public debate on militarization. Marijuana legalization could help curtail the abusive war on drugs. And concerns about the excesses of testing, along with increasing teacher mobilization, could put the education reform movement back into balance.
But a real balance won’t be achieved without a change in how we view the notion of the public. For decades the state, professionalized bureaucracy, democratic control of public finance, and the public itself have been vilified, while incentive pay and volunteerism—exemplified by homeschooling, armed self-defense, the anti-vaccination movement, and other forms of civic abandonment—have been ascendant. But as history shows, these rearguard actions make a fragile line of defense against the state’s imperfections, and the ills of corruption and illegitimacy they breed can be far worse than any problems such anti-public measures may hope to solve.
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November 10, 2014
14 Min read time