The Neoliberal Republic: Corporate Lawyers, Statecraft, and the Making of Public-Private France

Introduction

June 2017: as Emmanuel Macron rises to power, the outgoing socialist prime minister Bernard Cazeneuve meets with the incoming one, Edouard Philippe, for the usual ceremony of transfer of power. Despite their different political affiliations, both share one striking feature: while the latter, a typical figure of French technocracy trained in elite state schools and member of the Conseil d’État,¹ is nominated after spending close to a decade as a business lawyer at the Debevoise & Plimpton law firm and later as a lobbyist in chief for France’s large nuclear fuel company (Areva), the former is about to join August & Debouzy, an influential corporate law firm in Paris, as its expert in compliance. Similar transfers at the very top executive positions of the state are also worth noting. Out of the eight last chiefs of staff of the Élysée (the office of the president), while all of them were members of the state’s grands corps, no less than five have been corporate lawyers.

It now seems that each day brings its load of news items relating to such crossovers from top governmental positions to the Paris bar, and the list only seems to grow ever longer. In 2018, the daily newspaper Le Monde revealed that the opening political statement (the so-called Exposé des motifs) of a new legislative bill on transportation had been outsourced to the Paris branch of Dentons law firm by the government. Such a move into the privatization of legislative work is striking. All the more so because the firm’s representative in this transaction was a former member of the Conseil d’État (and thus, of the top administrative elite) turned corporate lawyer. It is therefore fair to say that something is happening in France at the boundary between the state and markets, at the geometric locus where the public meets the private sphere. An ever-greater number of signals seems to indicate a blurring of the lines, verging on a confusion of roles that arguably imperils the public spirit of both politics and government.

To be sure, the boundary between the public and the private is not any social dividing line. It is fundamentally different from other sectoral and professional boundaries: it conveys a whole set of representations and expectations pertaining to the autonomy of state-actors (whether politicians, bureaucrats, judges, or regulators) as they engage in their government activities; it also sets out procedures of deliberation and decision-making that are different on either side of the line, thus effectively determining the social space in which citizenship and equal treatment will hold sway. It may certainly be tempting to consider that such sensitivity to the public-private divide is idiosyncratically French as France has long epitomized the strong state² par excellence, spearheaded by a ruling elite of lifetime civil servants with a strong hold over the definition of the intérêt général. And yet, while there are indeed profoundly different traditions regarding the ties between state elites and public interest, all democracies ground an essential part of their legitimacy in the maintaining of a somewhat robust distinction between public and private spheres.³ It is hard to deny that the dividing line does carry an essential symbolic and political charge. It suffices to recall the unanimous moral outrage that erupts when affairs of corruption or graft are revealed; or the political condemnation that surrounds the many scandals caused by evidence of capture of public decision-making by large firms and the lobbying industry in matters as diverse as food safety, health norms, or environment protection. In short, this boundary is a fully political object. Any modification or muddling of this dividing line signifies much more than just a change in legal regime or in decision-making procedures; at stake are both the very autonomy of the spheres within which the public interest is defined and the conditions of possibility of a democratic citizenship. In other words, we stand here at the very boundaries of democracy.

Of course, the public-private boundary line was never drawn by a single and clear stroke of the pen; rather, it has lived through many vicissitudes over time.⁴ Even in France, the public sphere never had the Gothic architecture envisioned by legal doctrine or political theory. The overlap, under the auspices of the state, of an ad hoc regime for public law, specific missions of service public, and an elite group of civil servants, has never been perfect. Even in its golden age (somewhere between the mid-1950s and the mid-1970s,⁵ when it could be observed that the French state had acquired its independence with regard to its personnel and its interests and seemed alone to embody the public interest),⁶ it already relied on a powerful system of collusive ties between segments of the state and segments of business.⁷ However, back in the 1970s, the frequent mobility of top-level bureaucrats into large private corporations (most often firms operating in sectors of strategic importance, such as defense, or otherwise dependent on public procurement) was not usually interpreted as a weakening of the state. Rather, it was read as a sign of its preeminence as it allowed the state (through its grands corps) to act as coordinator in chief of France’s mixed economy.⁸

But everything has changed, or nearly so. The hold that the state used to exercise over the French economy, notably through a substantial public sector in industry and banking, has become a thing of the past. Successive waves of privatization have dealt their blows, amputating sixty-five corporate entities from the state in August 1986, twenty-one more in July 1993, up until the very recent bill of April 2019 engaging the privatization of public entities—ones that even countries like the United States had never thought of privatizing—such as airports. This continuous movement was certainly amplified when the Single European Market was rolled out, as it triggered the liberalization of several strategic sectors including telecommunications, energy, and transport.⁹ As EU competition law required a strict equality between public and private actors in the economy, it directly caused reforms that drastically curtailed the state’s capacity to organize public holdings as an alternative to private property. As a result of this significant shrinkage of the perimeter of the state, opportunities for high-level civil servants to move into state-owned companies (an until-then classic if temporary career move in top administrative positions) were brutally cut off. This, arguably, has contributed to redirecting some of their professional trajectories toward the private sector and, indeed, often toward major private companies that were formerly in the public sector.¹⁰ Progressively, as the neoliberal turn consolidated in various policy domains,¹¹ the social and professional foundations for the interventionist state were dismantled.

While the territory of the public and the private has continually evolved before our eyes, the map that we collectively possess to get our bearings has remained more or less the same. The keywords of the public sector are still in use—general interest, public utility, state prerogatives, administrative law. Institutions that have a special role in preserving this state lexicon, starting with the Conseil d’État, continue to manipulate these categories with the care and caution once accorded to antique relics. But the reassuring continuity of vocabulary masks an unprecedented muddling of the cardinal points of the compass.¹² As the landscape has been transformed by the numerous upheavals of terrain that came with the neoliberal transformation of the state in the course of the past three decades, the binary diagram drawn up at the end of the 1970s (public/private) has lost a great deal of its descriptive power. The classic lexicon of the summa divisio separating the public and private sectors, although it is still routinely used to describe the workings of the state, does not account for the new blurring of missions, modes of action, and types of agents at work on either side of the dividing line. In fact, it conceals this blurring. As if it were burdened by the excessive load of political, economic, intellectual, and even moral significance that has been vested in this vocabulary, this lexicon muddles our view. As the overlap between state institutions, interventionist policies, and public service falls apart, the public/private binary now seems more of an obstacle when it comes to deciphering what is happening at the border between the state and markets.

Scholars are not without resources, however. Much work has been done to chronicle the neoliberal remaking of the state, in particular through inquiries into the progressive penetration of new public management within the bounds of the state. In sectors such as hospitals,¹³ schools, taxation,¹⁴ public utilities,¹⁵ the superiority of business methods was extolled.¹⁶ A whole literature has documented the managerial pathway taken by successive governments ever since the end of the 1990s—its elite as well as its preferred policy instruments: the ramping-up of power accorded to independent regulatory agencies in lieu of government offices, across-the-board promotion of public-private partnerships, increasing recourse to private consultants, subjection of public entities to the rules of the competitive market economy, and so forth; these are the fundamental components of the multiform (yet partial) process of neoliberalization of the state that has been underway for two decades.¹⁷ But in focusing the analysis on the managerial reform of the public sector, scholars have too often turned away from the transformation, in many ways symmetrical, that has affected private sector entities—in particular consulting firms that were called upon to take part in this neoliberal reconstruction of the state. As one looks at the internal sectoral changes in government administration, the novel system of public-private transactions that progressively took shape at the confines of the state remains a blind spot.

It is true that this borderline space is not easily scrutinized with the naked eye. Here again, our intellectual baggage reveals its limitations, as it is marked by a series of dichotomies—public/private, state/civil society—that continue to purvey the notion that the state is sole master in its domain, at most aided by some outside advisers.¹⁸ In fact, a presumption of immunization has long prevailed, emphasizing the tenacious opposition of the state grands corps to the intrusion of consulting firms and to the agencyfication of markets’ regulation. In this view, the French state and its power elite appear to have stood shoulder to shoulder in resisting the neoliberal reconfiguration process that has affected all European states for over two decades. And yet, as one looks at the actual economic and financial poles of the state today, all the evidence points conversely to a new pattern of public-private collusion that has grown up precisely along the porous fringes of the state and the fuzzy frontier of markets.¹⁹

The Public Fabric of Private Markets

To be able to grasp this transformation, there is a need for a different lens, one that looks for the state in places where scholars have not been used to finding it—in the field of law itself. There are of course several other points of entry into this border zone—be they the worlds of finance,²⁰ audit,²¹ lobbying,²² or political communication. But the law is uniquely suited for this much-needed investigation. By virtue of its historic ties to the state, at once the means of its action and one key principle of its legitimacy, the law offers an unrivaled observatory of the mutations of the forms and functions of the boundary between public and private. Because the law conforms to public policies like a second skin, it provides a view of state’s regulation across sectors (banking and insurance, telecommunications, energy, health care, environment, defense, etc.) and policy instruments (licensing regimes, public procurement, competition rules, regulation of financial and capital markets, etc.). From the point of view of the law, the state has not withdrawn from the economy. Quite the contrary. If there is an area in which the public sector is in full expansion, it is the regulation of markets, to the extent that the liberalized part of the state has redefined itself as a market-maker under the aegis of regulatory agencies.²³ In the neoliberalized state, there is a new form of public interventionism, placed under the sign of economic freedoms and undistorted competition. In part crafted in the European Union laboratory, this pro-competitive re-regulation²⁴ is aimed at facilitating the effective operation of markets and has triggered profound changes in policy instruments as well as in the very organization of the administrative apparatus.

In varying degrees,²⁵ many if not all Western states can be said to have embraced the model of the so-called regulatory State²⁶ whereby their main task no longer is to operate an alternative economic space in the name of service public, but rather to legally guarantee the free and undistorted operation of private markets. This operates in many ways: via licensing (to market products), prudential rules (designed to prevent market failure), and sophisticated systems of sanction of anticompetitive practices. Interestingly enough, this new type of state interventionism does have a counterpart in the private sector. Large companies very quickly understood that their market power lay not only in their economic and commercial innovations, but also in their capacity to wield influence in this public fabric of private markets. They soon engaged in continual interaction with regulators, top administrators, political leaders, and judges entrusted with the oversight of economic and fiscal affairs, at the national and the European level alike.²⁷

And yet, while it is by now firmly established that the neoliberal turn and its promarket regulatory reforms is by no means a retreat of the state, we are still short of understanding its political consequences. These however, are immense. Of particular importance are those that affect the public-private dividing line as well as the conditions in which the public interest is defined in our democracies. Far from clarifying the respective roles of states and markets, as the proponents of the neoliberal turn of public policies had touted as an incentive, the regulatory remaking of the state has created a zone of proximity and exchange between public and private actors that is without precedent. This gray zone that has emerged as the state plunged into the icy water of the liberal and competitive economy is the subject of this book. In the interstices of business, politics, and government, where the national echelon meets the European and the international, a field of public-private brokerage has indeed grown steadily over the past two decades, gaining in autonomy, scope, and political leverage. It is the purpose of this research to track the nascent and rapidly growing constellation of actors, organizations, and forms of knowledge that circulate across the public-private fault line, and to sharpen our understanding of its potential corrosive effects on the very definition of the public interest. France offers a topical empirical test case for such an endeavor. As sociologists of Western states have it: in no other cases has the process of differentiation and institutionalization of the State been carried as far as in France.²⁸ And it is precisely this deep-seated sensitivity to the autonomy of the public sphere that makes France a particularly heuristic terrain when it comes to tracing the encounter between Western states and neoliberalism and revealing the transformative effects of the expanding public-private fault line.

Corporate Lawyers as Tracers of the Neoliberal Turn of the State

For such an exploration, one needs a guide able to lead through the byways and backwaters of this border space. Nothing will serve us better than the choice to follow those who are the hands-down champions in this new cross-border game: its experts—namely, corporate lawyers.²⁹ Classic works of American sociology, from those of Parsons to Wright Mills, have scrutinized lawyers as intermediaries penetrating the boundary between public and private capacities and responsibilities³⁰ or professionals mediating between the economy, politics and military affairs.³¹ While its role as cornerstone of the American power elite may have been somewhat overstated,³² the Washington lawyer circulating between regulatory bodies and public affairs consulting firms, and from government cabinet positions to the halls of Congress offers an interesting reference point.³³ It forces us to look at lawyers not only for their technical expertise as defense litigants or legal counsels (roles that European legal professionals essentially did stick to until the early 1990s),³⁴ but also for their brokering role in-between a variety of fields (business, politics, government), as well as for the expertise of the state or statecraft that they help produce and disseminate.

Strangely enough, however, while there is an rich literature pointing at the rise of global law firms as providers of a vast array of services to their business clients (from litigation to legal counsel, arbitration, public affairs, and lobbying, etc.)³⁵, only a small number of inquiries have connected these transformations to the neoliberal turn of Western states³⁶. And yet, ever since the 1990s, corporate lawyers in Europe have become key players not only in the business-consulting market, but also in public affairs, compliance, and regulatory expertise.³⁷ All the signs show that ever since the 1990s, the position of the legal profession in the playing field of power has been profoundly transformed³⁸. Lawyers are no longer simply specialists in legal defense and judicial chicanery. In the full service law firms where they henceforth pursue their trade, they define themselves as all-terrain experts offering a wide range of services, from legal and judicial counsel to political and governmental lobbying, drafting legislative amendments, or negotiating international arbitration agreements along the way. Today, researchers find business lawyers in the aisles of parliamentary assemblies as well as in the headquarters of major companies, in the hearing rooms of the economic and financial sections of the courts as well as in the corridors of the Directorate General for Competition in Brussels or in the lobby of regulatory agencies. The times where they essentially were to be found in the crowded halls of the courthouse are long gone. By tracking the dossiers that they handle, it quickly becomes clear that big corporate law firms established in Paris maintain a continual commerce along the fringes of the state. They may act for as well as against public entities (states, local governments, state-owned companies, etc.). Even as they intervene in defense of the latter, they act in a large variety of contexts: major financial and equity operations, investor-state arbitrations, public-private partnerships, state aid discussions at the European level. They may also present arguments before public institutions whether ministries, regulatory agencies, or courts, in Paris or in Brussels, in order to obtain favorable fiscal arrangements, market authorizations, or other government approvals. Yet, in all cases, they appear to be working in the shadow of the state, in close contact with its elites and departments.

While corporate lawyers now appear in many quarters of the state, state grands corps have symmetrically come to populate law firms. A great many people with former public experience in their title have joined corporate law firms over the years: key figures of the Conseil d’État, secretaries-general of either the presidential office at the Élysée or the prime minister’s office at Matignon, junior as well as senior ministers of the economy or justice, heads of ministries’ departments and poles in the fiscal law division, former chief cabinet advisers and market regulators. This flow toward the Paris business bar is intriguing. Not only because historians and sociologists have long established the demise of the République des avocats that was once in place during the Third Republic when the legal profession was the main breeding ground for the emerging Republican ruling elite. But also because today it is not so much lawyers who accede to politics and the government, as was the case in the late nineteenth century, but rather the contrary as former top civil servants and politicians seek to push through the revolving door into Paris law firms and take over their public affairs and public law departments.

Mapping the Field of Public-Private Intermediation

Lawyers and law firms may indeed be a privileged entry point in the transformation of the relationship between business, politics, and government (and the related blurring of the public-private divide) in the context of France’s neoliberal turn of public policies.³⁹ Yet we need an analytical toolbox to make possible both an accurate description of the dynamics of this new public-private intermingling and a thorough assessment of its transformative effects. To this aim, the book draws from Pierre Bourdieu’s field-theoretical approach as it allows us to build a spatial understanding of the new set of relations, transactions, and interdependences that cut across public and private sectors. In mobilizing this theoretical apparatus for the study of a weakly structured social space such as the emerging field of public-private intermediation, the book pursues a collective effort to remodel Pierre Bourdieu’s analytical toolbox for the purpose of studying these interstitial fields that develop in-between more historically consolidated ones whether at the national or transnational level.⁴⁰ While they may be weak in their social and professional structure, their position at the crossroads of stronger fields such as politics, government, or business, makes them particularly critical as sites of coordination and homogenization of policy frames. Thereby, we hope to provide the analytical equipment to track not only the expanding creep in the public-private fault line but also its specific gravity (or field effect), hereafter defined as its capacity to transform the properties and coordinates of any object (professions, policies, modes of governance) that traverses this space⁴¹ and capture professional strategies, government agendas, political imaginations.

There remains an empirical difficulty however, as the corporate bar is hard to penetrate. Journalists, political scientists, not to mention sociologists, are traditionally kept at arm’s length. Not that lawyers shy away from giving interviews, quite the contrary. But discretion and secrecy are the cardinal virtues of their profession. A good deal of their professional excellence as mediators is indeed measured by their capacity to lead outsiders to forget that they are acting as such, and to protect their clients from outside scrutiny. The cult of anonymity and the shroud of professional secrecy are such that very few social scientists have been able to gain access to lawyers’ dossiers and to follow their clients. It remains difficult to obtain direct knowledge of how they work. Scholars are often left standing at the doorstep of these law firms.⁴² But sociologists occasionally strike it rich: the entrepreneurial turn of the legal profession in the 1990s has lifted a corner of the curtain of ignorance. As competition between law firms grows more intense, the prestigious deals, catches, and victorious coups of the players are increasingly aired on the firms’ websites and in the columns of the specialized press. These media releases are biased of course, but they make public data and information that had traditionally been kept in the shadows because of the tradition of reserve and selfless neutrality espoused by the legal elite.⁴³

In addition to twenty-five interviews with key actors (corporate lawyers and a variety of top civil servants and politicians who moved to the bar) and an in-depth exploration of the profession’s rich professional gray literature, we have built a biographical database of the career paths of the more than two hundred politicians and high civil servants that have moved through many revolving doors over the past two decades (for details on the methodology, see appendix 1). The reason for such a strong focus on biographies and trajectories is not just that it brings living, acting people into what has up to now been a mostly disembodied narrative of reified collectives (state, agencies, banks and firms) pursuing abstract goals and institutional interests. As we collect data on individual career moves and bring them into relation to each other, we are able to write a relational collective biography of the development of the field of public-private brokerage. And as we identify the breeding grounds, points of passage, and hubs for the conversion of different forms of social capital as well as the career paths and professional hierarchies among those who circulate across borders, it becomes possible to map out the various segments of politics, government, business that are swept away into this blurring dynamics.

This said, and at the risk of disappointing readers, this book does not intend in any way to supplant investigative journalists, and even less to take the place of judges. It does not seek to reveal the existence of hidden deals or secret agreements of a financial or political nature between the various protagonists along this border space. Nor is it aimed at stealing the thunder