This week is Sunshine Week, the annual celebration timed to James Madison’s birthday “that shines a light on the importance of public records and open government.” Sunshine Week began in Florida in the early 2000s in response to efforts by members of the state legislature to create a plethora of new exemptions to the state’s public records law. It has spread nationally, with some federal agencies hosting Sunshine Week events and the House’s Oversight Committee and the Senate Judiciary Committee (and sometimes Homeland Security and Governmental Affairs Committee) holding oversight hearings, marking-up legislation, and sending letters. Here’s a list of this week’s events.
Why should we care about government transparency?
James Madison is often quoted declaring “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.” His statement was in the context of support for government-funded education, but it has come to be reviewed in the context of government openness generally.
A greater inference can be drawn from the inclusion of a Postal Clause in the Constitution and the long-running subsidy for transmission of newspapers and the determination that they must be transmitted by the United States postal service. Indeed, the press was provided favorable postage rates that “were not only too low to pay the cost of carrying newspapers through the mails, but much lower than the rates on letter mail.” In addition, newspaper publishers had a version of the Franking Privilege: “every publisher could send his paper to each and every other publisher within the United States free of charge” as of 1792. Newspapers were also free of taxation, and postmasters would collect subscriptions for newspapers.
Culver Smith, in his book “The Press, Politics and Patronage,” quotes James Wilson at the Constitutional Convention declaring: “The people have a right to know what their agents are doing or have done…it should not be the option of the Legislature to conceal proceedings.” He successfully argued for a Constitutional requirement in favor of each House of Congress keeping a journal of its proceedings. Smith writes: “there was a general concurrence that other official matter should be published, especially the laws and the debates of Congress.” The taking of notes at Congressional debates and the publication of the laws — and their transmission in newspapers — is a fascinating century-long story of political power and spoils that ultimately led to the creation of the Government Publishing Office. Then, as now, Americans regarded newspapers as a part of their political system.
Historian Don Ritchie in his notable book Press Gallery recounts how “the day after the House of Representatives approved the First Amendment to the Constitution, protecting the freedom of the press, it debated barring reporters from the House floor” — in this instance, reporters were a kind of stenographer who recorded the debates of the Congress and were at the time paid by newspapers. Ritchie explains “Members of Congress felt torn between their desire for newspaper coverage and their inability to control the substance of the reporting.” It’s still true today.
It was a partisan issue. Federalists thought that the government “could work more effectively away from public scrutiny…and that some legislative foibles ‘had better be concealed from observation.’” They were elitists, and that’s who they thought should run the government. Republicans disagreed, seeking public attention because “the preservation of liberty against the central government required that citizens know what their representatives were saying and doing in their name.”
In 1794, the Senate ordered the construction of a gallery, where the public could attend for legislative debates. The Senate doors stayed closed for debates on treaties and nominations, which continued to be secret — in theory but not in practice as senators leaked like a sieve — until the 20th century. In 1800, the Federalist-led Senate was appalled when a newspaper published the text of a bill “to alter the means of deciding disputed presidential electors” and hauled the editor into the Senate chamber for questioning. The editor escaped and the Senate voted to hold him in contempt. Yes, friends, they covered themselves in glory.
What happens when Congress is not transparent? Joanne Freeman in her book The Field of Blood paints a picture of the mid-19th century. “Guns, threats, insults, and bullying: a lot was happening behind closed doors. There was a reason why congressmen called committee rooms the ‘black holes of the Capitol.’” She writes about the downsides. “Off-limits to both the public and the press, documented only by formal reports that were often biased and selectively censored, committee meetings were dark voids where anything could happen.” This included violence and threats of violence.
As the Congressional Research Service explains in its report Access to Government Information, since the 1960s, Congress has enacted key statutes to provide a framework for how the public may access information. They include the Freedom of Information Act, the Privacy Act, the Government in the Sunshine Act, and the FACA Act. Over the last century, I would highlight the Administrative Procedure Act, DATA Act, and the Congressionally Mandated Reporting Act as major additions to that oeuvre, as well as specific requirements like the requirement that CRS reports be publicly available, the requirement that the data behind Congress.gov be made publicly available, and the online publication of legislation prior to consideration.
The CRS report properly describes the two major mechanisms behind these laws: requiring publication of certain information and allowing the public to request the information with an enforcement mechanism to give that request teeth.
I’ve only cursorily covered some of the history of Congressional public access reforms, and the former Sunlight Foundation has a more extensive timeline from the start of the country and ending around 2010. I’ve got a good list of enacted transparency bills from 2010 forward.
There are those who argue against government transparency, whether in the Executive branch, the courts, or in Congress. Transparency can be used as a weapon. For example, it was transparency that helped defeat the southern committee chairs who bottled up anti-Jim Crow legislation in the 1960s and 1970s. That’s why we can now see who signs discharge petitions. It also led to the defeat of House Republican efforts to kill off the Office of Congressional Ethics. Transparency can create winners and losers. It can disincentivize people from making policy arguments that lack popular support, or can be easily made unpopular, or that entail political risk-taking.
I’m not going to recount all the arguments made by critics, but instead point you to this paper by Gary Bass, Danielle Brian, and Norm Eisen entitled “Why Critics of Transparency Are Wrong.” Here’s their thesis:
To be clear, we are not transparency absolutists. [Note: I don’t think anyone is, which is why I think Larry Lessig is angry at straw men.] We believe that transparency should be balanced with the appropriate secrecy that government needs to function — but as we demonstrate below, that balance is already being struck. When one looks beyond the rhetoric at the actual facts of government operations, there is already more than enough of the secrecy the critics call for. If anything, the balance tips too far in that direction, and more transparency is needed, not less.
For what it’s worth, I think there are several major arguments in favor of government transparency.
First, government transparency is how you can understand how the system is working. If you cannot observe the inputs and outputs, you cannot tell whether the government is producing the policies that people want or whether it is being distorted in some way. You cannot change the inputs to get a better output if you cannot see how the inputs become outputs. A democratic government cannot be a black box.
Second, government transparency is essential for the rule of law. If you are to follow the law you must know what they are in advance. This has been true ever since Hammurabi published his code as a stele. Similarly you need to see that justice is administered fairly to know that society embraces the rule of law and not the rule of men.
Third, government transparency is essential in a democracy. For the people to rule, they must understand the state of the world, the actions of their representatives, and be able to choose the representatives that they believe will govern best.
Finally, government transparency is essential in a government. Government is so massive that it is difficult for the left hand to know what the right hand is doing. Transparency makes it possible for the various arms of government to interact and coordinate in a way that leads to a better administration of policy.
I cannot help but refer to the book “The Right to Know,” published in 1956 by Kent Cooper, the former Executive Editor of the Associated Press. He writes that the “right to know” means “that the government may not, and the newspapers and broadcasters should not, by any method whatever curb delivery of any information essential to the public welfare and enlightenment.” He tells the story of Anna and John Zenger, publishers who lived in colonial America, who published “justifiable criticisms of a British colonial governor.” The governor ordered the paper burned and arrested Zenger for seditious libel.” He spent eight months in prison…and was acquitted by a jury.
Freedom of the press and the public’s right to know are the people’s sword and shield when facing down autocratic and authoritarian governments. Sunshine Week is the celebration of the tools that empower us to govern ourselves and a call to arms to fortify ourselves against the storm that is to come. Public information, then as now, depends upon popular support.
At the end of the Constitutional convention, Ben Franklin remarked “we have a republic if [we] can keep it.” Sunshine lights the way.
