Transparency and its Discontents

Cato Institute - Thursday September 8, 2016

by Jim Harper

A preliminary draft paper on transparencythat Cass Sunstein posted last month inspired Vox’s Matthew Yglesias to editorialize “Against Transparency” this week. Both are ruminations that shouldn’t be dealt with too formally, and in that spirit I’ll say that my personal hierarchy of needs doesn’t entirely overlap with Yglesias’.

In defense of selective government opacity, he says: “We need to let public officials talk to each other — and to their professional contacts outside the government — in ways that are both honest and technologically modern.”

Speak for yourself, buddy! The status quo in government management may need that, but that status quo is no need of mine.

A pithy, persuasive response to Yglesias came from the AP’s Ted Bridis, who pointed out via Twitter the value of recorded telephone calls for unearthing official malfeasance. Recordings reveal, for example, that in 2014 U.S. government officials agreed to restrict more than 37 square miles of airspace surrounding Ferguson, Missouri, in response to local officials’ desire to keep news helicopters from viewing the protests there. Technological change might counsel putting more of public officials’ communications “on the record,” not less.

It’s wise of Sunstein to share his piece in draft—in its “pre-decisional” phase, if you will—because his attempt to categorize information about government decision-making as “inputs” and “outputs” loses its intuitiveness as you go along. Data collected by the government is an output, but when it’s used for deciding how to regulate, it’s an input, etc. These distinctions would be hard to internalize and administer, certainly at the scale of a U.S. federal government, and would collapse when administered by government officials on their own behalf.

I think it’s right that there are some categories of work done in government executive offices and agencies that should be left as the business of the parties themselves. But I’m more attracted to reversing the presumption of automatic publication only in the narrow instances when national security, the privacy of private individuals as such, and the need for candid communication with high executive officials requires it. (That’s hardly a perfect standard. This blog post is a rumination.)

Few would make the connection, but Dave Weigel supplies what’s really missing from the discussion. In “Why You Should Stop Blaming the Candidates if you Don’t Know ‘What They Stand For’,” he says: “I’m sorry, but this one falls on the voters. It is generally as easy to learn where the candidates stand on all but the most obscure issues as it is to find, say, a recipe for low-calorie overnight oats.”

The “outputs” are there, but the public is failing to use them. The problem is the public. If voters aren’t using even published and publicized campaign information, why would they do any good with governance inputs? Especially in light of the interests of regulators, with whom Sunstein and Yglesias quite strongly sympathize, transparency isn’t all that special. Let’s just tap the brakes in this one area, giving regulators more room for private deliberations.

Massive public dissatifaction with the status quo tells us there must be something wrong with that argument.

The glib, libertarian answer is that you could shrink the size and scope of government, particularly the U.S. federal government, and grow the public’s relative capacity to oversee it. And while I think that’s true, there’s a more subtle approach that may appeal to an Yglesias or a Sunstein. That’s to recognize that the public today has diminished capacity for government oversight, having lived for many decades without transparency as to the inputs or outputs of government.

In my paper, Publication Practices for Transparent Government, I wrote of the social capital that must grow up once governments begin publishing information well.

[T]ransparency is not an automatic or instant result of following these good practices, and it is not just the form and formats of data. It turns on the capacity of the society to interact with the data and make use of it. American society will take some time to make use of more transparent data once better practices are in place. There are already thriving communities of researchers, journalists, and software developers using unofficial repositories of government data. If they can do good work with incomplete and imperfect data, they will do even better work with rich, complete data issued promptly by authoritative sources. When fully transparent data comes online, though, researchers will have to learn about these data sources and begin using  them. Government transparency and advocacy websites will have to do the same. Government entities themselves will discover new ways to coordinate and organize based on good data-publication practices. Reporters will learn new sources and new habits.

Put aside mere “inputs.” The government today doesn’t publish good data that reflects its deliberations, management, and results. Take one of the most important areas: the law itself. The bills in Congress are published in unnecessarily opaque fashion (our efforts with the Deepbills project notwithstanding). Federal statutory law in the form of the U.S. Code only recently began to see publication in a basic computer-usable fashion. Regulations are available in XML, but regulatory processes have only been superficially updated, essentially by combining existing processes on a single web site. And sub-regulatory law—guidance documents, advisories, and such—those are a transparency travesty if not a systematic, widely accepted Due Process violation.

Authoritative data that indicates what the organizational units of the federal government are—a machine readable government organization chart—does not exist, even after the Obama Administration’s promise last fall to produce one in “months.” And implementation of the DATA Act, while proceeding, may yet run into enough roadblocks to fail at giving the public a consistent, reliable account of federal spending.

The transparency movement is a reform movement based on a vision of modern government. Sunstein’s and Yglesias’ modest arguments against transparency don’t appear to recognize the government’s long, systematic exclusion of the public from its processes or the resulting atrophy of Americans’ civic muscles. Thus, they too easily conclude that giving transparency to internal matters, or “inputs,” is not necessary because it’s not useful.

Transparency is a legacy issue for President Obama, who campaigned in 2008 on promises of true reform. Time has not run out for the president’s pro-transparency reform.

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