The need for expertise: how Civil Society Organisations engage with the Regulatory State

This post is based on a commentary by Kathryn Hochstetler that assesses the ways in which members of civil society “often shadow and contest the central actors of the regulatory state, even though they are ostensibly well outside of it”. Above all, this reflection reminds us that we cannot simply assume that the way public affairs are conducted merely involve elected politicians who oversee expert policymakers in specialized ministries or agencies. There are many other actors who might hold expertise or other claims to participation, not least Civil Society Organisations. And they often exercise these prerogatives in complex ways.

The creation of regulatory agencies that insulate certain decisions from being made for purely political reasons (rather than technical ones) is already a well-established phenomenon across regions and political systems. The idea is that the rules that govern a certain industry or activity should be more stable and long-lasting than what politics would dictate. This model was developed and chosen in democratic countries but has been imported or replicated in all kinds of political systems. But is this “rationalizing myth” ideal? How do these regulators remain accountable? What role do civil society organisations play?

If regulators’ legitimacy rests upon their issue-expertise, then naturally CSOs will be more likely to have an influence if they can make a claim to a similar kind of knowledge. The consequences of this, however, are not straightforward. A number of issues need to be taken into account: whether the regulatory agencies are actually close to the ideal-type, whether civil society is broad and diverse enough to represent different interests, and whether there are access points for their input, among others. These tensions will result in different kinds of relations between the regulator and CSOs, which can be anywhere from fully adversarial to fully cooperative.

As mentioned, not all regulatory agencies are equally capable of fulfilling their mandate. In many countries, their coverage is incomplete, or their knowledge base flawed. Additionally, the regulator’s actual form is largely determined by the process of setting it up, which is a highly politicized one. In consequence, CSOs often step up to either complement the gaps that are left by state agencies, or to overtly challenge their failures.

The second tension mentioned above points to the extent to which CSOs are themselves representative of broader societal needs. It may be the case that CSOs are actually part of reduced elite groups that pursue a narrow agenda of interests. In these cases, their expertise can end up increasing inequality rather than mitigating it.

Thirdly, different regulators offer unequal regularised and long-term possibilities for CSOs to participate. This is where expertise really counts: those with a better recognised expertise are likely to dominate, as well as those that are closely linked to the bureaucracies. Obviously, whether access points like stakeholder boards and public hearings actually matter in decision-making is not a given. Outcomes can be controlled in various ways, but participation still matters. The author mentions how agriculture based on the use of genetically-modified organisms was much more permissive in Argentina than in Brazil, given that in the former country seed companies’ associations were better represented than environmental CSOs.

Admittedly, citizen mobilization is ultimately the most visible form of civil society participation, more so when it aims at challenging or resisting the decisions made by the regulator. However, the commentary makes an appealing argument by suggesting that we have to look elsewhere too. ‘Blocking’ activities usually get all the attention from media, scholars and practitioners, whereas other less controversial forms of expertise-based participation are less scrutinized. This argument is compatible with Andrea Ordoñez’ claim that ideas are not only actual policy solutions, but can also help to define problems or understand the context.

The image of a ‘rational and apolitical’ regulator does not provide a full picture of how things work. Crucially for this think net’s perspective, we should not only consider which actors other than the state possess expert knowledge or not, but also try to understand whether their participation is legitimate and whether they hold adversarial or cooperative relationships with the state. For example, Wenny Ho recently argued in this blog that there are ways for actors of different kinds to integrate their knowledge in favour of social innovation initiatives. In sum, we need to better understand the ways in which experts, stakeholders, CSOs and citizens in general participate in the regulatory process.