THE CONCEPT OF THE PUBLIC INTEREST
INTRODUCTION: THE UNACCOUNTABLE PUBLIC OFFICIAL: The decision-making power of nonelected government administrators poses a problem for democratic theory. The democratic mandate for elected officials comes from the fact that they can be booted from office at the next election. Theoretically, government administrators are accountable to elected officials, so this provides some indirect accountability back to the people. In reality, however, government is now so large and complex (and civil service provides so much job security) that government administrators make innumerable decisions daily, with only the most controversial ever known to elected officials. The question becomes: "How can we ensure that nonelected public officials are acting on behalf of the public interest? “The prevailing theory of how to cope with this that has dominated administrative law is that the way to solve the problem of the official endowed with discretionary powers is to increase the definiteness of legal standards (including statutes and administrative rules), decreasing the area of discretionary authority. Recent theorists have argued that this is based on an oversimplified view of the kind of discretion that officials have. They see officials as having three kinds of discretionary authority:
1) technical discretion in which the ends or goals are well-defined, but the official has discretion on how best those goals can be met; 2) discretion both in determining how goals are met, and in establishing criteria for goals that are vague, e.g., "clean water," "hazardous substances," etc.; and, 3) discretion in determining actions which should be taken, while the goals themselves are still in dispute.
DEFINING THE PUBLIC INTEREST: But the question which is asked frequently about public involvement is whether it will result in "the publicinterest," or whether public officials have an obligation to act on behalf of "the public interest" regardless of what various affected interests may say? The answer to that question requires some clarification of what the public interest is.The problem of determining the public interest exists in every society. At various times the public interest has been defined by kings, priesthoods, military dictatorships, parliaments, etc. Each claims to represent the public interest. In a democratic society any claim for authority in determining the public interest must result ultimately on the mandate of the people, rather than claims to divine knowledge, royal prerogatives, or superior wisdom.
There are three competing theories about what the public interest is which emerge in current American political thought:
The Common Will: Some theorists presume there are definable common interests, a common good, usually based on the interests of the majority. With this assumption, political events tend to be viewed as a contest between the common good, and the wiles of the evil and nefarious special interests who attempt to block the common good for their own interest. But having assumed the existence of a common good, these theorists divide into separate camps of those who believe that this common will is best expressed by direct electoral vote of the public, and those who believe that political parties are a necessary moderating influence upon the special interests.
A Higher Law: These theorists believe that the public interest is an absolute, a matter of higher law, or natural law. These theorists characterize themselves as representing the true interests of the people, even if their perception of the public interest does not coincide with the interests of the public as perceived by the public itself. They appeal instead to the still small voice of conscience, and urge administrators to be creative manipulators of public opinion, and resist the blandishments of the special interest groups.
A Balance of Interests: These theorists start with the assumption that competition among the multitude of interests and groups is the reality of political behavior at all times both outside and within agencies. The term "the public interest" really is a symbol which only has meaning as the outcome of the process of group or interest interaction. In effect, "the public interest" is whatever people can agree it is at any point in time. Any consensus about what constitutes the public interest may break down at a future date to be replaced by a new definition. Political scientists who take this position originally emphasized the relative balance of various interest groups on the decision makers. Others have pointed out that the pressures of external interests are often countered by the pressures from within agencies. Still others have pointed out that the values of the decision maker play a role in the decision, so that a decision maker may make a decision at odds with the self-interest of his agency, or at odds with pressuring interest groups, in response to such values as "freedom, equality, or equal opportunity." Psychologists have also pointed out that both conscious and unconscious factors play a role in decision making, so that the psychological make-up of the decision maker can play a role in the appraisal of public interest.