Against transparency

 at Vox: “…Digital storage is pretty cheap and easy, so maybe the next step in open government is ubiquitous surveillance of public servants paired with open access to the recordings.

As a journalist and an all-around curious person, I can’t deny there’s something appealing about this.

Historians, too, would surely love to know everything that President Obama and his top aides said to one another regarding budget negotiations with John Boehner rather than needing to rely on secondhand news accounts influenced by the inevitable demands of spin. By the same token, historians surely would wish that there were a complete and accurate record of what was said at the Constitutional Convention in 1787 that, instead, famously operated under a policy of anonymous discussions.

But we should be cautioned by James Madison’s opinion that “no Constitution would ever have been adopted by the convention if the debates had been public.”

His view, which seems sensible, is that public or recorded debates would have been simply exercises in position-taking rather than deliberation, with each delegate playing to his base back home rather than working toward a deal.

“Had the members committed themselves publicly at first, they would have afterwards supposed consistency required them to maintain their ground,” Madison wrote, “whereas by secret discussion no man felt himself obliged to retain his opinions any longer than he was satisfied of their propriety and truth, and was open to the force of argument.”

The example comes to me by way of Cass Sunstein, who formerly held a position as a top regulatory czar in Obama’s White House, and who delivered a fascinating talk on the subject of government transparency at a June 2016 Columbia symposium on the occasion of the anniversary of the Freedom of Information Act.

Sunstein asks us to distinguish between disclosure of the government’s outputs and disclosure of the government’s inputs. Output disclosure is something like the text of the Constitution or when the Obama administration had Medicare change decades of practice and begin publishing information about what Medicare pays to hospitals and other health providers.

Input disclosure would be something like the transcript of the debates at the Constitutional Convention or a detailed record of the arguments inside the Obama administration over whether to release the Medicare data. Sunstein’s argument is that it is a mistake to simply conflate the two ideas of disclosure under one broad heading of “transparency” when considerations around the two are very different.

Public officials need to have frank discussions

The fundamental problem with input disclosure is that in addition to serving as a deterrent to misconduct, it serves as a deterrent to frankness and honesty.

There are a lot of things that colleagues might have good reason to say to one another in private that would nonetheless be very damaging if they went viral on Facebook:

  • Healthy brainstorming processes often involve tossing out bad or half-baked ideas in order to stimulate thought and elevate better ones.
  • A realistic survey of options may require a blunt assessment of the strengths and weaknesses of different members of the team or of outside groups that would be insulting if publicized.
  • Policy decisions need to be made with political sustainability in mind, but part of making a politically sustainable policy decision is you don’t come out and say you made the decision with politics in mind.
  • Someone may want to describe an actual or potential problem in vivid terms to spur action, without wanting to provoke public panic or hysteria through public discussion.
  • If a previously embarked-upon course of action isn’t working, you may want to quietly change course rather than publicly admit failure.

Journalists are, of course, interested in learning about all such matters. But it’s precisely because such things are genuinely interesting that making disclosure inevitable is risky.

Ex post facto disclosure of discussions whose participants didn’t realize they would be disclosed would be fascinating and useful. But after a round or two of disclosure, the atmosphere would change. Instead of peeking in on a real decision-making process, you would have every meeting dominated by the question “what will this look like on the home page of Politico?”…(More)”