It’s been 50 years since Congress adopted the Freedom of Information Act, which provides access to documents held by federal agencies. Since 1966, Congress has adopted many other laws designed to promote openness. But have we gone too far, and undermined the capacity of public officials to solve our major problems? The Reynolds Journalism Institute at the University of Missouri invited two experts to weigh in. Watch them in a live debate on March 15 7:00PM CST at https://www.rjionline.org/events/opengovernment.
Yes, American government is too open
Is American government too open? The short answer is yes in many instances. Determining the right amount of democratic transparency is surprisingly complicated, because public officials must govern effectively, not simply in the most democratically pure way. When we make naïve assumptions about citizen capacity, democratic opportunities to observe and participate can be captured by highly motivated and well-resourced interest groups and individuals.
Currently, many states and the Federal government have open meeting laws that require government bodies to conduct their deliberations in public. When strictly enforced, open meeting laws encourage rigid posturing rather than negotiation and compromise. If a public official announces a position in public, and then later changes his or her position in the interests of compromise, that official can be accused of inconsistency, hypocrisy or opportunism. But the American political system with its many divisions of power across branches and levels of government cannot act without negotiation and bargaining. The consequence of purity and rigidity is often stalemate.
Open meeting laws constrain the ability to find compromise by broadly defining the meaning of a “public meeting.” Under some sunshine laws, members of a government body are prohibited from having separate individual conversations or informal discussions at a social gathering about matters they are considering.
Interested parties, not the general public, monitor the public sessions of agencies in order to influence outcomes. Here in Palo Alto, Calif., for instance, we have failed for two decades to obtain the necessary permits to build floodwalls along the San Francisquito Creek to protect the economically disadvantaged, minority community of East Palo Alto. Various well-resourced NIMBY (Not In My Backyard) and environmental groups have used the opportunity to observe and comment on the permit process to hold up the floodwall construction in order to gain leverage for their particular causes. The problem is the capture of transparency policies by those with the greatest resource advantages and self-interested motives.
All of this was troubling enough when the modern wave of transparency laws were enacted in the 1970s, but these problems have worsened over time. Today’s more contentious political environment has fundamentally altered the way American government now operates.
Partisan polarization has risen to levels reminiscent of the late 19th century. When obstruction is the goal, every step in the legislative process is a potential opportunity for delay and obstruction. Hearings become showcases for partisan viewpoints, not opportunities for fair-minded investigation. Amendments are opportunities to weaken bills or embarrass the opposition, not to improve the legislation. And votes on complicated bills become fodder for thirty-second campaign ads.
Increasing political professionalization has also shaped contemporary politics. Political consultants, lobbyists, and interest groups are much more sophisticated and experienced today than in earlier periods of history. They have learned how to use the system to their advantage. Opposition researchers routinely use Freedom of Information Act (FOIA) requests to gather information about opposing candidates. Over the two years before the 2016 Presidential Election, the Republican National Committee’s opposition researchers made more than 330 FOIA requests for over 11,000 pages of public records concerning the Clintons at taxpayer expense.
The efforts of such extensive searches have been trivial to date from a policy point of view. Similarly, when Hillary Clinton handed over her 55,000 emails, we learned very little about the pressing issues of the day, and great deal about her desire to get in touch with Lady Gaga and Ben Affleck or her many communications with Sidney Blumenthal.
More transparency and openness is not always the answer to our governance problems. We need more deliberation, compromise, and consensus. We need less partisan posturing, ideological rigidity, and obstruction. A democracy that works for the people needs to be able to make effective decisions without undue special interest pressures and incentives to grandstand. That sometimes means providing shade from the glare of excessive transparency.
(Bruce Cain is the Spence and Cleone Eccles family director of the Bill Lane Center for the American West and Charles Louis Ducommun professor in humanities and sciences at Stanford University. His most recent book is “Democracy More or Less: America’s Political Reform Quandary,” Cambridge University Press, 2014).
No, American government is not too open
The United States has a noisy and utterly imperfect representational democracy, disorderly and dysfunctional in many ways. But as Founding Father James Madison famously observed, “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”
Unfortunately, in terms of a national “right to know” law, it took 144 years for the American people to begin to arm themselves with palpable knowledge about their government. After many, many years of earnest organizing efforts by various public-interest organizations — in 1966 Congress passed and President Lyndon Johnson signed into law the Freedom of Information Act (FOIA), which has been subsequently amended many times.
No one can credibly suggest that transparency and in particular, the FOIA law, are excessive. For one thing, it does not even apply to the White House or to the Congress, nor to the two major political parties, private corporations that wield immense power, dominate our national politics but were not specifically mentioned in the Articles of Confederation or the U.S. Constitution. Nor does the FOIA law apply to the large, nonprofit “think tanks” sometimes known as the “idea merchants” who help to frame our national discourse about specific public policy issues.
There are, in addition, nine other, formal FOIA exemptions that prevent or can severely delay disclosure. One of those pertains to national defense and foreign policy. Ever since the atomic age began 70 years ago and national security became paramount, public disclosure necessarily has become seriously circumscribed. Overall, billions of government records have been classified and withheld, or severely redacted during that period — all delaying and distorting “the truth” as Americans know it. For example, it took half a century and a presidential commission of nearly 50 researchers for the American people to learn the extent of the U.S. government’s human radiation experiments.
Separately, it took roughly seven years and seven thousand U.S. soldier deaths in Vietnam before the American people learned that the President of the United States had lied about the August 1964 Gulf of Tonkin attack against U.S. naval forces, the ostensible rationale for the U.S. war in Vietnam. The New York Times’ and Washington Post’s June 1971 publication of the leaked, secret Department of Defense history of the U.S. involvement in Vietnam, known as the “Pentagon Papers,” laid bare that and other misrepresentations by President Lyndon Johnson and his administration.
We are still waiting for all of the documents from the U.S. destabilization of Chile more than 40 years ago, to the Iran-Contra scandal in which 14 federal officials were initially charged with federal crimes 30 years ago, and for documents about so many other important uses and abuses of government power. Meanwhile, today more than 4 million Americans have national security clearances, and in 2010 alone, according to The New York Times, the Obama administration classified 77 million documents, up 44 percent from the year before.
Another significant impediment to transparency involves corporate outsourcing — there are nearly four times more federal contractors, about 7.5 million, doing the business of government than actual traditional government employees. Contractors are often managing other contractors. Not only do the FOIA laws not apply to them, neither do federal government ethics laws.
Facts are and must be the coin of the realm in a democracy, for government “of the people, by the people and for the people,” to paraphrase Abraham Lincoln, requires and assumes to some extent an informed citizenry. Or as the principal author of the Declaration of Independence, Thomas Jefferson, famously wrote, “If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.”
And in a nation with 100 million more people today than during the Watergate scandal 40 years ago but only half as many professional journalists and four times more public relations “flacks” now than professional journalists (in 1960, the ratio was 1:1), one of the very few, truth-telling moorings the public must have is access to and freedom of information.
(Charles Lewis is a professor of journalism at the American University School of Communication in Washington, D.C. and the founding executive editor of its Investigative Reporting Workshop. He is the author of “935 Lies: The Future of Truth and the Decline of America’s Moral Integrity,” PublicAffairs, 2014).