A discourse-theoretic approach to negotiated rulemaking

In 1996 and in 1997, Congress ordered the Secretary of Health and Human Services to undertake a process of negotiated rulemaking, which is authorized under the Negotiated Rulemaking Act of 1990, on three separate rulemaking matters. Other Federal agencies, including the Environmental Protection Agency and the Occupational Health and Safety Administration, have also made use of this procedure. As part of the program to reinvent government, President Clinton has issued an executive order requiring federal agencies to engage in some negotiated rulemaking procedures. I present an analytic, interpretative and critical approach to looking at the statutory and regulatory provisions for negotiated rulemaking as related to issues of democratic governance surrounding the problem of delegation of legislative power. The paradigm of law delineated by Jürgen Habermas, which sets law the task of achieving social or value integration as well as integration of systems, provides the background theory for a critique of such processes. My research questions are two. First, why should a citizen obey a regulation which is the result of negotiation by directly interested parties? Second, what is the potential effect of negotiated rulemaking on other institutions for deliberative democracy? For the internal critique I argue that the procedures for negotiated rulemaking will not produce among the participants the agreement and cooperation which is the legislative intent. For the external critique I argue that negotiated rulemaking will not result in democratically-legitimated regulation. In addition, the practice of negotiated rulemaking will further weaken the functioning of the public sphere, as Habermas theorizes it, as the central institution of deliberative democracy. The primary implication is the need to mitigate further development of administrative agencies as isolated, self-regulating systems, which have been loosened from the controls of democratic governance, through the development of a robust public sphere in which affected persons may achieve mutual understanding. ^

Democracy in the healthcare workplace: A critical perspective

A review of existing literature revealed at least two distinct theoretical perspectives or schools of thought which are troubled by problems of the lack of participation in the workplace: Jurgen Habermas' ideal of communicative rationality (1984; 1987); and the field of workplace democracy. Whereas Habermas' ideal of communicative rationality establishes communication as necessary to attain a democratic workplace, the ideal of workplace democracy focuses on a participatory ideal in which conditions of open participation must be fulfilled in order to attain a democratic workplace. This study compared the strengths and weaknesses of the conditions proposed by Habermas with the strengths and weaknesses of the conditions selected to represent the workplace democracy ideal. Two incidents were selected for analysis which occurred within a period of one year within one large healthcare organization. The author was present as a participant-observer to assess these incidents. Each of the conditions for the ideal of communicative rationality and for the workplace democracy ideal was systematically applied to both incidents selected for analysis. The results of the analysis suggested that application of Habermas' theory provided more insight into potential distortions in communication than did the conditions selected to represent workplace democracy. Although the conditions of both models were frequently complementary and even overlapping at times, application of each theory to the same incident produced distinctly different results. ^