Abstract
“Transparency” has become a widely recognized, even taken for granted, value in contemporary democracies, but this has been true only since the 1970s. For all of the obvious virtues of transparency for democracy, they have not always been recognized or they have been recognized, as in the U.S. Freedom of Information Act of 1966, with significant qualifications. This essay catalogs important shortcomings of transparency for democracy, as when it clashes with national security, personal privacy, and the importance of maintaining the capacity of government officials to talk frankly with one another without fear that half-formulated ideas, thoughts, and proposals will become public. And when government information becomes public, that does not make it equally available to all—publicity is not in itself democratic, as public information (as in open legislative committee hearings) is more readily accessed by empowered groups with lobbyists able to attend and monitor the provision of the information. Transparency is an element in democratic government, but it is by no means a perfect emblem of democracy.
In everyday personal and professional relations, transparency is not an overriding value. Most people would agree that we should be honest with one another in ordinary social relations—other things being equal. But as often as not, other things are not equal. Parents are not frank with young children (or even older children, on some topics), teachers are not frank with students, strangers and slight acquaintances are normally cautious with one another, and people who reveal too much of themselves early on are distrusted. Then there are domains where confidentiality is absolutely crucial if there is to be a trusting relationship at all—doctor and patient, therapist and patient, lawyer and client, and so forth. And the white lies of everyday casual interaction are legion.
What great good is being served that keeps us from holding forth and speaking our minds frankly? Certainly, there is a personal good in that individual privacy is protected. But there is a large social good, too, that we may call simply, and perhaps inadequately, civility. By civility, in this context, I refer to formal and informal norms of social behavior designed to promote smooth, untrammeled social interaction, as if the rule of the day is “Thou shalt avoid embarrassing yourself or the other.” It might be said that sociologist Erving Goffman (1956) devised an entire intellectual framework to demonstrate the central role of these miniperformances and microperformances of everyday life. Whereas other thinkers have emphasized that human affairs are driven by a quest for economic self-interest or sexual desire or the drive for power over others, Goffman stressed the desire to avoid embarrassment—of oneself or another—as a primary engine of human affairs (Schudson, 1984).
Until relatively recently, transparency was not particularly valued in commercial, medical, or legal contexts. In 1960, only 12% of U.S. doctors informed cancer patients that they had cancer. Consumers who went to the supermarket for cereal and milk could not determine which of the boxes of cereal was the most economical unless they could easily do long division in their heads to find the price per unit of weight because “unit pricing” was not required in supermarkets. Which cereal had the least sugar? There was no way to know. No federal regulation required ingredients in packaged goods to be listed on the package. As for the milk container, it was stamped with a “sell by” date written in code so that store employees, but not customers, could know when the milk was no longer fresh enough to purchase and safely drink.
But transparency has become in the past several decades a supreme societal value, especially in the realm of politics. It has come to be seen as “a self-evident good in Western society” (Etzioni, 2010, p. 389). This is not so in everyday life. Nor, I want to argue here, should it be understood as a supreme value in democratic politics.
Picture the United States at the beginning of 1960. Land of the free, home of the brave, leader of the free world. This was a great democracy, if remarkably flawed in its failure to include minorities and women in political life. And transparency? A voter could not learn how his or her representative in the House of Representatives voted on key amendments to bills. That was a secret from the country’s beginning until the Legislative Reorganization Act of 1970. In that 1960 world, a number of terms now very familiar were unknown or practically unknown—whistle-blower, coming out of the closet, informed consent. The phrase “right to know” had only come into use in the early 1950s among journalists seeking to open government to greater scrutiny. It had no constitutional standing (nor does it today) and no legal tradition.
Turn the clock ahead 20 years to 1980. The votes of one’s elected representatives in the U.S. House of Representatives are recorded and instantly available, 98% of doctors routinely tell their cancer patients they have cancer, food packaging discloses a great deal of information about what is in the package, and unit pricing in supermarkets makes comparison shopping possible. “Open dating” of perishable products has replaced the store-coded dating. The term whistle-blower is widely known, and reporters who once would have kept the confidences of politicians now routinely raise tough questions with them in both private and public settings. 1 The story of how American culture opened up—how it came to place transparency much nearer the center of its consensual values—is a story of a specific and recent moment in time.
Americans assume transparency to be a value inherited from America’s founders. That’s simply not true. The phrase, “the right to know,” for instance, has been traced to James Wilson, arguing at the 1787 Constitutional Convention that the House and the Senate should keep a record of their proceedings. He held, “The people have a right to know what their agents are doing or have done, and it should not be the option of the legislature to conceal their proceedings” (O’Brien, 1981, p. 38). Wilson was successful in supporting what became part of Article I, Section 5, of the Constitution: Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.
What did the authors of the Constitution mean by enjoining Congress to publish its journals “from time to time?” And what did “journals” mean? As for “from time to time,” there is no clear answer, but the Virginia convention on ratification of the Constitution proposed specifying a journal be published “at least once a year” (The U.S. Senate published nothing of its proceedings for its first 6 years). As for “journals,” what in practice this came to mean was the publication of laws and resolutions enacted and votes taken—but not debates (Schudson, 2015, pp. 5-6). Moreover, Article I, Section 5, provides its own escape hatch: Members of Congress may exclude from disclosure any parts of their proceedings “as may in their Judgment require Secrecy.” So, quite simply—no, the American founders did not bring transparency to government or the high valuation of transparency to society in general. Governing from Washington has been done behind closed doors for much of American history without controversy. Transparency seemed to apply to outcomes but not to the discussions that led to them and often not even to the votes that authorized them.
The eventual flowering of governmental transparency practices in the 1960s and 1970s did not arise from popular pressure or a significant social movement. So where did our current high valuation of transparency come from? That is a complicated story that has yet to be fully written, but it can at least be outlined here. Transparency arose as a value in the American case because (1) there were the continuing frustrations of divided government where the Congress felt shut out of the decisions and actions of the executive; (2) the news media were transformed from overcooperative and accommodating of politicians to more openly skeptical, critical, and investigative; and (3) there was a general transformation of political culture from a relatively deferential stance to a more critical and activist position. I will offer some detail about the origins of the 1966 Freedom of Information Act (FOIA) as a case study to illustrate these points and then return to the general question of the transformation of political culture to include a new and high valuation of transparency.
Passing the Freedom of Information Act
The passage of the FOIA in 1966, along with its substantial strengthening in 1974 in the aftermath of Watergate, was a landmark in the battle between censorship and sunshine in government information. The FOIA provided that “any person” has the right to request, and a set of procedures for requesting, information held by federal executive agencies. It also supported a body of officials and offices dedicated to releasing this information, where appropriate, to the requesters. The FOIA has been widely used by journalists, scholars, and political activists, although it has been relied on even more—much more—by corporations seeking information about rival corporations. There are about 4,000 FOIA officers at about 90 different federal agencies. Their efforts cost taxpayers more than $350 million a year, or $1.5 million a working day, with some 700,000 requests handled annually.
The FOIA’s roots lie in the 1950s. Its chief author, John Moss, came to Washington as a first-term Democratic congressman from Sacramento in 1953. He was assigned to the low prestige Post Office and Civil Service Committee. At the time, the Truman administration was under attack for employing communists or communist sympathizers in the federal civil service. Moss believed that the administration had been diligent in seeking out only loyal Americans. He wanted to know how many federal civil service employees had in fact been dismissed for security reasons. “I insisted in committee,” he said later, that we get the facts from the Civil Service Commission. Well, the Commission refused to supply the information requested by the committee. This was my first experience with an agency refusing to respond to the legitimate demands of the legislative body.
Two years later, when Democrats regained a majority in the House, Rep. Moss was empowered to pursue this topic. He did not have some grand vision of a dangerous national security state. He did not have a well-considered philosophy of democracy. Years later, he would say, It was a case of a freshman member being somewhat outraged over Executive arrogance . . . I have strong convictions that, as a representative of the people, I had a right to know what goes on in government. And I have also a conviction that the people I represent need to know what goes on in government.
This sounds obvious, but it is a view that became obvious more recently than we imagine. Moss would oversee a decade of hearings that revealed the executive branch of government withholding information from the news media because someone felt like it.
Prior to the establishment of the FOIA, the chief legislation to regulate information disclosure was the Administrative Procedure Act of 1946. It required public disclosure of government records except when “secrecy in the public interest” is required or when the information relates “solely to the internal management of an agency” or if there is “good cause found” to keep matters confidential. These openings—“the public interest,” “internal management,” and “good cause”—were big enough to justify withholding almost anything. The FOIA arose as an effort to arm the Congress against the executive and, by no means incidentally, to aid Democrats in Congress against a Republican in the White House and his cabinet officers and others running the many executive agencies. It attracted support from organized journalism but little news coverage. It was not a major public issue, barely a minor one. And yet the FOIA became a new symbol, and a new mechanism, to make transparency a feature of the political landscape and a continuing reference point and resource within journalism.
Transparency Becomes Part of Political Culture Generally
How did “transparency” become so widely taken up as a sacred value of American democracy? Let me return to the three factors that I think have been central to expanding the significance of transparency. First, there is the narrow institutional force peculiar to those political systems that often have “divided government,” where one party controls the legislature and another party controls the executive. In parliamentary democracies where the national leader is the leader of the parliamentary majority, this situation will rarely if ever arise, but in presidential systems, as in the United States, it is a perfectly familiar occurrence to have a president of one party and a majority in the Congress of a different party. The impetus for making “transparency” a more central value was stronger in the United States than in European democracies, I think, because the United States had a form of democracy in which divided government is much more likely to come about than in parliamentary systems that dominate in Europe.
Second, in the 1950s and after, the news media became an interest group, a collection of lobbyists and, at the same time, a more active and investigative set of organizations. In the case of the effort to pass a FOIA, Rep. Moss had close allies in the press and former journalists managing his staff. His staff members regularly invited reporters to testify before the Moss Subcommittee on Government Information about instances where government officials had denied them information that arguably should have been made public. Even an avowedly detached and “objective” press had no qualms about speaking for freedom of the press, even if it meant siding with a partisan effort in Congress to develop new tools for keeping an eye on a Republican administration, that of President Dwight D. Eisenhower. Matters would not be any different in 1974 when, after Watergate, a Democratic-controlled Congress voted overwhelmingly to override President Gerald Ford’s veto of legislation to strengthen the FOIA.
Third, there has been a decline in a deferential political culture throughout society that began in the 1960s and culminated in the 1970s not only in the United States but also in Europe. Transparency has acquired a sacred aura elsewhere in the world, too, not just in the United States. Dutch scholar Albert Meijer refers to it as a new “religion” worldwide (Pierre Meijer, 2014, p. 507). French political theorist Rosanvallon (2008), writing with France in mind, complains that “a veritable ideology of transparency has emerged as the new democratic ideal” (259). But in fact, he suggests, government is prevented from responding to the demands placed on it. As a result, “transparency—the new utopia—thus engenders the very disillusionment it was intended to overcome” (Rosanvallon 2008, p. 259).
I think we need to take transparency down from the pantheon of our most sacred values. We should recognize it as one of what philosopher Alasdair MacIntyre called “secondary virtues.” Secondary virtues “concern the way in which we should go about our projects; their cultivation will not assist us in discovering upon which projects we ought to be engaged” (MacIntyre, 1967, p. 24).
But shouldn’t people know, as John Moss had declared, what their government is up to? Well, yes, in what political scientists Christopher Achen and Larry Bartels (2016) have called the “folk theory of democracy.” But real people, they argue, are not like the citizens imagined in the folk theory. They are busy in their own lives. They have no firsthand experience with governing or the complexities of policymaking. They do not make careful cognitive judgments about which candidates fit best their own policy views. Most people do not know the details of even salient policy debates, they do not have a firm understanding of what the political parties stand for, and they often vote for parties whose long-standing issue positions are at odds with their own (p. 299).
Indeed, they argue, “mostly” people come to political choices based not on information but on identification—with ethnic, racial, occupational, or religious groups or with a “hereditary” connection to a particular political party (Achen & Bartels, 2016, p. 299). With all of the fairly substantial expansions of government transparency from the 1960s and 1970s onward, there is no sign that the American public has increased its comprehension of how government works or what the government is doing.
Transparency may sometimes be helpful, to be sure, but its utility must be weighed against its disutilities. No one would recommend “all transparency all the time.” The trouble is that there are so many exceptions to the rule that transparency as a general precept begins to feel highly inadequate. FOIA lists nine exceptions to a general presumption in favor of transparency. Some of them are narrow and specific and not of general interest. Some of them seem perfectly obvious—a “law enforcement” exception allows the Justice Department to refuse to share records that would provide suspected criminals with information about ongoing investigations of them. Three of them seem to me of general importance for understanding the complexity of government transparency:
Government information should not be disclosed if it invades the personal privacy of people about whom the government holds information. Transparency, in other words, can trample on another vital value, the privacy of the individual. The government holds personal information about everyone who pays income taxes; everyone who serves in the military; everyone with a federal grant or federal contract, even students with federal student loans; and every employee of the government. We like to say or think that we live under a government of laws, not a government of persons, but while this may be a noble aspiration, in the end it rests on an impossible, almost ridiculous, distinction. Government is and must be run by individual people about whom the government holds information that those individuals take to be private and personal.
Government information should not be disclosed to the public if it exposes secrets that would endanger the national security or would empower enemies of the nation. If information on how to manufacture, store, conceal, transport, and release or detonate nuclear, biological, or chemical weapons were widely available, we can be confident that some malicious individuals or motivated enemies, or, for that matter, thrill-seeking pranksters or publicity-seeking egomaniacs would by now have murdered thousands or tens of thousands of people. We all have an interest in keeping such information secret. On the other hand, obviously, it is easy to recognize that executive agencies might use this exception (or others) to hide their mistakes or embarrassments or violations that have little or nothing to do with information that could damage the country.
Government information should not be disclosed or disclosable if it makes democratic debate and discourse within the government impossible. If politicians and officials think that they are living in a goldfish bowl, they will watch their tongues or they will resolve to speak their minds only when the public does not have access through documents or emails to what they are saying. This is the most interesting and most controversial of exceptions. Members of Congress feel that open government legislation has made it impossible for legislators to make sensible and necessary backroom compromises. They argue that transparency at large undermines the even greater need for honest communication among officials inside government—transparency undermines deliberation.
If more of government decision making becomes readily available to the public, if more committee meetings are open, is that not obviously an improvement in democracy? Well, it depends. First, it may silence government officials from speaking honestly to one another. Law professor (and former federal official) Cass Sunstein argues that “output transparency” should be strongly encouraged; the government should make public more than it does now the decisions it makes and the conclusions it has come to. At the same time, “input transparency” should be strictly limited—the discussions and disagreements inside the government may provide interesting gossip and they may be of great value to historians down the road, but at the same time, it is important for current government officials to know that they can speak to one another in confidence. There are significant costs to input transparency, notably, “It can lead people to silence themselves or to communicate in ways that cannot be recorded. More subtly, it can divert attention from the important questions involving policy and substance to less important ones that involve palace intrigue” (Sunstein, 2018, p. 202). Second, if committee meetings are open, who will attend? We know the answer to that: Lobbyists will attend. Others may come on occasion, but lobbyists are well paid to be there all the time (D’Angelo & Ranalli, 2019).
Conclusion
As a practice, Catharina Lindstedt and Daniel Naurin (2010) have observed, transparency means “the release of information about institutions that is relevant for evaluating those institutions” (p. 301). It can be very useful for democratic practice, but not by itself. It is, they argue, a valuable practice when it is combined with “publicity” and “accountability.” As they argue, transparency, narrowly conceived, means making information accessible to people in general. But “publicity” means that that information is “actually communicated to and received by” people—notably, in democracies, members of the electorate. Releasing information and making it in fact known by citizens are different matters. For accessible information to become accessed information, there has to be a demand for it, and sometimes that is not the case, or the demand is so scattered and disorganized that it has little impact. Very important is the role of mediators—the news media and nongovernmental organizations—that, in the language of economics, reduce the cost to citizens of gaining the information. So if the news media or the agencies of civil society are weak, transparent information will not be received by the public.
Finally, there is accountability, which for Lindstedt and Naurin (2010) means that the public has the ability to impose sanctions on the governmental actor. Sometimes, public exposure is a significant price in itself—embarrassment and shame may be more than enough to force a cabinet officer to resign. Public exposure of illegal or unwise behavior in office may be punished at the next election. But it may also be punished by legal sanctions initiated by a lawsuit against the government actor, individual, or agency. And such proceedings can follow quickly on the publicity of misdeeds while the election may be months or years into the future.
In the end, I think MacIntyre’s distinction between first-order and second-order virtues proves very useful. Transparency is not at the heart of democracy. Accountability is, and transparency is one, sometimes useful, sometimes devilish, path to it. This is only a beginning effort to try to sort out what it is about transparency we should value and how to harness it best to the objective of self-government in a representative democracy.
Footnotes
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.