Since the age of the Robber Barons in the late 19th century, Americans have worried about how politicians operate behind citizens’ backs. The cartoon below illustrates suspicions that the wealthy secretly controlled the government, and reformers thought that exposing such machinations would stop them. As soon-to-be Supreme Court Justice Louis D. Brandeis wrote in 1913 , “sunlight is the best of disinfectants.”

“Everyman and his Dollar,” 1906. Library of Congress Prints and Photographs Division, Item #2011645934

The Vietnam War and Watergate brought a renewed interest in keeping an eye on government, and from the mid-1960’s through the mid-1970’s, Congress enacted laws designed to let the public know what public officials were doing.

The best known of these laws is the 1966 Freedom of Information Act (FOIA), which allows anyone to request information (excluding, among other things, information affecting national security) from government entities.  Others included the Legislative Reorganization Act of 1970 (LRA), which allowed broadcasting of and public attendance at many Congressional proceedings, the Federal Election Campaign Act of 1971 (FECA), which required disclosure of many campaign contributions, and the 1976 Government in the Sunshine Act (GITSA), which required many federal agency meetings to be open to the public.

But things didn’t work out as lawmakers had hoped.  In the October 2018 issue of the Yale Law Journal, Columbia Law School Professor David E. Pozen explains what went wrong.

The FOIA, for example, became a tool for corporate interests as much as for their opponents.  Proponents of the law believed that its core users would be investigative journalists and public-interest groups; instead, the most common requestors are commercial interests, often regulated entities seeking to overwhelm their regulators with document requests and thereby hinder regulation.

The experience under open-meetings laws has been equally discouraging, Pozen writes. Agencies deal with legal requirements by having fewer meetings and discussing little in the meetings they have. Open Congressional sessions have made it more difficult for members to negotiate candidly and creatively, particularly in today’s hyper-partisan atmosphere.  And while committee meetings are theoretically open to all, only well-financed entities have the resources to attend regularly, and they use their access to monitor and influence legislators’ actions.

Campaign finance disclosure has not been effective, either.  Moneyed interests argue that disclosure allows citizens to evaluate a candidate’s reliance on rich backers, and that no other restrictions or regulations are necessary, despite the near-total lack of evidence that such disclosures reduce the impact of big money on campaigns.

This development illustrates that disclosure requirements are no longer seen as means to the end of good government.  Before the 1980’s, proponents of “publicity” or the “right to know” linked these concepts to government action that curbed the influence of corporations and the wealthy.  Since then, however, neoliberalism—opposition to government intervention in the market—has trumpeted “transparency,” a more passive concept that suggests that citizens, not government, can and should act on whatever information they acquire.

If it’s true that corporations and the wealthy largely control the levers of government, however, it’s not clear that transparency can lead to change. Sunlight, then, may not be the best disinfectant after all.

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Article: David Pozen, “Transparency’s Ideological Drift.” Yale Law Journal 128:1 (October 2018), pp. 100-165.

Further Reading: Thomas K. McCraw, Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, Alfred E. Kahn. (Belknap Press 1984). Michael Schudson, The Rise of the Right to Know: Politics and the Culture of Transparency, 1945-1975. (Belknap Press 2015).