Competitive Supragovernmental Regulation: How Could It Be Democratic?

I. INTRODUCTION This Article explores the possibility that an emerging mode of transnational governance may also be generating a novel form of democracy, one in which competing regulatory programs aim to anticipate emergent public values and institute regulatory mechanisms to implement them, thereby advancing their own authority.1 "Competitive supragovernmental regulation" is largely driven and implemented by nonstate actors, and is therefore commonly viewed as suffering a democracy deficit. However, it institutionalizes broad participation, rigorous deliberative procedures, responsiveness to state law, incorporation of widely accepted norms, and competition among regulatory programs to achieve effective implementation and widespread public acceptance. The purpose of this Article is to work through an initial assessment of the democratic potential of competitive supragovernmental regulatory systems. section II lays out the main institutional elements of competitive supragovernmental regulation and gives some examples of its operation. Key features include implementation through market chains, increasingly participatory and transparent deliberative procedures, and competition among programs. section III then focuses on the democratic dimensions of competitive supragovernmental regulatory systems. In partial contrast to other work important in the field,2 it takes a systemic view, examining the composite democratic potential of regulatory systems composed of multiple programs,3 rather than focusing on individual programs. It argues that competing programs significantly shape each other's policies, creating an overall tendency toward increased democratization. For example, leading programs that practice increasingly sophisticated forms of deliberative and representative democracy are slowly pushing lagging programs in the same directions, thus creating systemwide democratic tendencies. section III also argues that competition among programs places them under steady incentives to develop standards and implementation mechanisms that will both operate effectively and achieve widespread acceptance, thereby instituting a form of democratic experimentalism.4 section IV concludes by first summarizing the democratic case for competitive supragovernmental regulation and then discussing some of its primary weaknesses. One of its key conclusions is that we presently do not know enough about the dynamics of competition among programs to be confident that they indeed result in regulatory standards that reflect and anticipate broader public values. Therefore we need to learn much more about what factors determine the outcomes of supragovernmental regulatory competitions. It may then be possible to revise the rules governing that competition to more fully realize its democratic potential. II. COMPETITIVE SUPRAGOVERNMENTAL REGULATION Regulatory programs that are developed and implemented primarily by nonstate organizations have grown rapidly over the past decade. Considerable scholarship has examined the Forest Stewardship Council,5 Fairtrade Labelling Organizations International,6 International Federation of Organic Agriculture Movements,7 Marine Stewardship Council,8 and others.9 While they vary in many particulars, these programs share the following general characteristics: Supragovernmentality. These regulatory programs are established primarily by nonstate actors organized in transnational networks. While they often have origins in both activist groups and businesses or trade associations,10 the activist groups typically provide the primary motivating force by both challenging the acceptability of existing institutional arrangements and offering alternatives. Governments are present in the regulatory fields, but tend to play minor roles in the primary negotiation and institutionalization processes, as is discussed in more detail in the section on "interactions with states" below. Supply Chain Leveraging. …