Second-Order Participation in Administrative Law

Abstract

Public participation has long been a cornerstone of administrative law. Many administrative procedures require participation, and underlying normative theories embrace participation as a way to legitimate the administrative state. It is well recognized that interest groups dominate this participation. Yet the implications of interest-group dominance have been largely overlooked. Administrative law takes virtually no notice of how the dependence on interest groups affects the claimed value of participation.

This Article argues that a close study of interest groups is essential to understanding, and ultimately reforming, administrative participation. It introduces the concept of second-order participation to describe the internal operation of interest groups. It then shows that second-order participation complicates every leading justification of administrative participation and the many practices built atop those justifications. These traditional conceptions of participation cohere only if groups actually speak for a membership, or at least provide information about how and for whom they work. Yet interest groups are seldom transparent, and, as this Article shows, they fall along a spectrum of internal governance with varying degrees of member involvement—with the most effective lobbyists tending to have less internal participation or no members at all. Attending to second-order participation thus provides a new framework for understanding participation, and it illuminates a path for reform.

Seifter-63-5
By uclalaw