Capacity and Impact Factors

Once commissions establish intellectual integrity and have favorable constitutions that are conducive to deliberation, they would further require resources and legitimacy to enjoy political influence. We think that it would

74. GUTMANN & THOMPSON, supra note 24, at 95-127.

75. Id. at 114-26.

76 . Minou Bernadette Friele, Do Committees Ru(i)n the Bio-Political Culture? On the Democratic Legitimacy of Bioethics Committees, 17 BIOETHICS 301, 311 (2003).

77. Id. at 312.

78. GUTMANN & THOMPSON, supra note 24, at 115-17.

79. For more information, see the Danish Board of Technology Website, http://www.tekno.

dk/subpage.php3?page=forside.php3&language=uk (last visited July 29, 2009).

be desirable for them to have independent funding and staffs, enabling statutes, high degree of consensus, and most importantly, sponsoring agencies’ duty to respond to their recommendations.

(a) Independent Funding and Staff

Deliberation is costly. The federal government of U.S. authorized Bush’s PCB $5 million per year for four years, and during the 39 months of its operation, the members met 28 times which each generally spend 2 days, and published 17 reports.⁸⁰

While having funding and staffs does not guarantee a well-reasoned recommendation from an unbiased commission, it would be almost impossible without independent funding and staffing. A commission with diverse membership, transplant operation and wide spread public consultation would need a capable group of administrative staffs to coordinate conference and public consultation; it would also need research staffs to help prepare the basic facts and issues. Without independent funding and staffs, their influence will be seriously limited.

(b) Statutory Foundation Providing Clear Terms of Reference

Early commissions in the U.S. had greater policy impacts and usually had statutory enabling acts.⁸¹ Later commissions, including the National Bioethics Advisory Commission and the President’s Council on Bioethics were established by executive orders.⁸² These enabling statutes or executive orders usually stipulate the commissions’ mission, and corresponds to Gutmann’s principle of accountability. Although this is not sufficient for a bioethics commission to have political influence, it is a necessary requirement in a modern constitutional democracy, and may also help to establish authority in its recommendations.

(c) Degree of Consensus and Room for Dissenting Opinion

In a liberal democratic society, moral disagreements are bound to exist in bioethical policies such as those in human embryonic research. According to John Rawls, when there is a conflict in what constitutes the “good” a society ought to achieve, the decision should not require everyone to agree.

Rather, it should be decided by a procedure that will lead to a decision that

80. Ruth Ellen Bulger et al., Conclusions and Recommendations, in SOCIETY’S CHOICES: SOCIAL AND ETHICAL DECISION MAKING IN BIOMEDICINE, supra note 40, at 168, 191.

81. For instance, the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research was created by the National Research Act (Pub. L. 93-348) and the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavior Research was created by 42 U.S.C. § 300v (2006).

82. Bill Clinton established National Bioethics Advisory Committee with Executive Order 12975 in October 1995 when he became the president of the United States. Yet, its charter expired October 2001. By then, the new President George Bush appointed a new committee name President’s Council on Bioethics by executive order 13237. For more information on the history of these two committees, see JASANOFF, supra note 55, at 179-80.

most reasonable citizens can accept.⁸³

Hence, for commissions to come to a decision, majority is necessary, but not sufficient. Well reasoned is even more important than majority. In controversial issues, mere majority without reasoning is bound to stir public outcry.

A consensus among diverse members of a commission certainly would increase the persuasiveness and influence of their recommendation.

Nevertheless, it is also important how dissenting opinions are handled in the deliberation. The President’s Council on Bioethics’ recommendation lists dissenting opinion as well as the majority opinion⁸⁴ and also publishes personal statements where members summarize their position and reasoning respectively.⁸⁵ This subjects members to public scrutiny not only as a group but also as an individual. In the end, it also gave the public and the academia more evidence to support their accusation of President Bush’s biased decision to replace two members who are more liberal as discussed above.

Hence, allowing members to publish their dissenting opinion not only allows the public to have a better grasp of how a commission reached its conclusion, and it also subjects the commission’s integrity and trustworthiness to more public scrutiny.

(d) Government’s Duty to Respond

Without direct endorsement from the majority, bioethics advisory commissions are bound to be advisory, and their recommendation’s influence depends upon acceptance of decision-makers with political authority in a constitutional democracy. However, if political authorities can choose to accept or ignore these recommendations at their convenience, these commissions will not have any effects in facilitating deliberative democracy. To begin with, the public will not pay attention to the information and recommendation it provides. Moreover, it will not inform the government’s policy-making. Nor will it increase the government’s quality of persuasion. Finally, it therefore does not help people whose interest is affected to accept the government’s policy, particularly when it adversely affects them.

To ensure government agencies meeting this duty to respond, relevant statutes may place time limits such as 180 days the government must respond.⁸⁶ When the National Research Act of 1974 created the National Commission, it requires that within 60 days of receipt of any recommendation made by the Commission, the Secretary must publish it in

83. JOHN RAWLS, JUSTICE AS FAIRNESS: A RESTATEMENT 54 (2001).

84. Supra note 44, at xxxviii-xxxix.

85. Id. at 246-97.

86. Ruth Ellen Bulger et al., Executive Summary, in SOCIETY’S CHOICES: SOCIAL AND ETHICAL DECISION MAKING IN BIOMEDICINE, supra note 40, at 1, 22.

the Federal Register; and then, within 180 days of its publication in the Federal Register, the Secretary must determine whether it is appropriate to adopt it. If it is appropriate, he or she must implement it as soon as feasible, and if not, he or she must publish reasons for the decision not to accept it.⁸⁷

The foregoing suggestions aim to use bioethics commissions as facilitators for deliberative democracy. However, as politicians tend to manipulate the design of these commissions and there is no guarantee to what extent the foregoing factors can be met in the institutional design and operations of these commission, their actual functions to facilitate deliberative democracy really depends on the extent to which they meet these factors.

In the following Table 1, the vertical heading on the left lists the minimum requirements an ideal commission must fulfill, and the horizontal heading on the top lists the functions a commission can serve to facilitate deliberative democracy. Putting the two dimensions together, this table seeks to demonstrate that the more requirements a commission fulfill, the more functions it can serve to facilitate deliberative democracy. Hence, should politicians set up a commission that does not meet any of these requirements, they run the risk of setting up rubber stamps that are useless from a deliberative democracy point of view.

In the following Table 1, we use “+” to express the fulfillment of the factor, “–” to express absent of the factor, and +/– to describe the factor at issue may or may not be necessary.

As demonstrated in this table, we argue that if the government wishes a commissions’ recommendation to be able to simulate formal decision-making in existing political institutions, the commission not only has to meet higher criteria both in the substance of its recommendation and the constitution of its operation, it must also be endowed with high capacity and high political impact in its institutional design. Thus, in addition to independent funding and staffing, it must have statutory authorization to shore up the legal bases for its recommendation, and be properly considered by its sponsoring agency to shore up its political legitimacy.

In contrast, for commissions that fail to meet the capacity and impact factor, if it at least meets the substantive and constitutive factor, in addition to clarifying the fact and probing the issues, it can still provide the public with relevant perspectives and values involved in the issue. This would still facilitate the reciprocity and respect that is necessary for deliberation in a

87. National Research Act, Pub. L. No. 93-348, § 205, 88 Stat. 342, 351 (1974); U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, BIOMEDICAL ETHICS IN U.S. PUBLIC POLICY— BACKGROUND PAPER, OTA-BP-BBS-105 64 (1993).

Table 1 Institutional designs that influence bioethics commission’s ability to facilitate different functions crucial to the realization of deliberative democracy

democratic society. Even if it does not fully implement the requirements of public participation, this is still possible if there is well-balanced membership.

A commission’s function would be much more limited to fact-finding if it does not have the benefit of diverse membership, transparency in operation and public participation. This is usually the case if the sponsoring agency intends to gather scientific information more than opinions. They tend to hire experts without taking into consideration the importance of diverse membership.

But actually, scientific information often is value-laden. For instance, whether embryonic stem cell research should be permitted by the government requires not only understanding the state of the art of the research, but also potential applications of it and their benefits. This must also be weighed against the value of embryos’ lives that would be sacrificed should these researches be permitted to pursue. Hence, in order to expose all the issues and concerns that require further investigation and debate, it is important for a commission to meet the constitutive factors.

Finally, as the U.S. President’s Council on Bioethics’ lesson indicates, without meeting most of the substantive and constitutive requirements, a commission loses its function to facilitate deliberation democracy. Indeed, the commission had the capacity of abundant funding and staffing of its own, and could have a lot of political impact since the president acted upon its recommendation. Moreover, it fulfilled the constitutive requirement of

transparency by publishing the minutes of its meetings, and members’

personal statements and dissenting opinions along with its conclusion. But because it failed to meet the substantive requirement of relying upon accurate scientific facts and consistent analysis, and because it did not meet the constitutive requirement of allowing public participation and having a diverse membership—particularly after the replacement of two members, it turned into a rubber stamp that ultimately lost any possible functions in a democratic society.

In the end, a sound process of moral persuasion is the surest cornerstone for these ethics commissions’ legitimacy. After all, commissions with only formalistic or ceremonial significance abound. There is no reason to assume that national bioethics commission would be respected, simply because other bioethics commissions won respect in other countries. Without intellectual integrity and a balanced membership, commissions will not earn any moral authority merely because the government appoint their members. Although the commission might be able to win attention and expectation because of its unusual members involved in the beginning, if its decisions fail to meet the criteria of logic and accuracy, it will soon lose its credibility, and become another formalistic commission. Hence, for a commission to be able to facilitate deliberation, substantive factors are as important as the constitutive factors and the capacity and impact factors.

B. Experts’ Legitimacy in Deliberative Democracy?: A Dual Track of