Columbia Law School Professor David Pozen says that his scholarship sometimes takes him to “dark places”—places where law and government don’t work at all as intended. Given his subject matter, that’s hardly surprising. The inaugural visiting scholar at the Knight First Amendment Institute and a leading constitutional scholar, Pozen has written extensively on topics such as civil disobedience and the separation of powers.
One of his best-known writings is a 124-page article, “The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information,” published in the Harvard Law Review. That much-discussed piece (it was even the subject of a New Yorker article by Malcolm Gladwell) explored the ecosystem of government leaks of classified information and offered a novel theory for why leakers are seldom prosecuted. (Hint: Tolerating some leaks can be a rational, power-enhancing strategy for the executive branch.)
His latest paper is sure to spark debate, as Pozen has turned his attention to transparency laws. In “Transparency’s Ideological Drift,” due out in October’s Yale Law Journal, Pozen describes how laws designed to promote openness and progressive goals are being used to advance special interests and hobble government. “A variety of forces have pushed both the politics and practice of transparency laws in a more libertarian direction, and away from the goals that were articulated at the time the laws were passed,” he said. In an interview, Pozen explains the ideological drift and its implications.
Q: How did you become interested in this topic?
Pozen: In 2016, Columbia Journalism School Professor Michael Schudson and I held a conference to recognize the 50th anniversary of the Freedom of Information Act. That led me to look carefully at how FOIA was operating. And what I found was that FOIA has drifted away from some of its early aspirations, such as producing greater trust in government, enabling more effective public administration, and curbing national security secrecy. For the most part, public-minded researchers and reporters aren’t the ones who use FOIA. It’s commercial requesters with a profit motive.
I soon realized that the movement of transparency law, from a progressive orientation toward a libertarian one, is a more general phenomenon. Historically, the overriding goal of transparency laws was not to shrink the state and get it out of the way of the market. It was to empower regulators and legislators. We’ve lost touch with that vision.
In your article, you cite digital technologies, specifically open data, as one of the forces moving transparency law in a libertarian direction. Can you explain?
In some transparency circles, there’s been a big push for “open data.” The idea is to put high-value data sets online in machine-readable formats. The open data movement is a big tent, but there is a techno-libertarian flavor to some of the advocacy around it—get the data online, get the state out of the way, and citizens and technologists will figure out solutions to public problems on their own.
This kind of advocacy reflects a strikingly thinned-out view of government. There is less emphasis on constraining corporate power and protecting society’s most vulnerable, in the way it was traditionally hoped that transparency laws would do. Certain open data laws can also become weapons for derailing agency action.
You found that open meetings laws can be used to undermine government functioning. How?
The basic idea behind open meetings laws sounds noble: to allow everyone to see how the sausage is made. But the groups that can attend all the meetings and hold government officials to account are often the deepest-pocketed groups, in particular, business lobbyists. In some situations, they are the ones that have been most empowered by open meetings laws.
Plus, when all voting and committee meetings have to be public, representatives can get locked into partisan postures that don’t allow for good-faith, multidimensional searches for solutions and compromises. Instead, they have to perform for the cameras and whatever special interests weigh on them the most. It makes deal-making harder, especially across party lines.
In retrospect, were progressives who backed these policies and laws being naïve?
The idea that transparency requirements would naturally and inevitably reduce the power of special interests and enhance trust in government—that way of thinking does seem quite naïve in hindsight. Transparency seems to perpetually seduce reformers because it’s often cheaper and easier to achieve than more substantive reforms.
I don’t mean to chide the reformers of the ’60s and ’70s. But I do mean to raise concerns for those who might replicate their mistakes today.
Has transparency reached the end of its life as a tool?
No, I wouldn’t say that.
It’s true that I don’t think there’s much to be gained by trying to further open up certain governmental processes. Agencies such as the Securities and Exchange Commission, the National Labor Relations Board, the Food and Drug Administration are already highly regulated, accountable institutions. They’re very open by historical and international standards. The marginal benefits of another unit of transparency from them are likely to be small.
Contrast that with what you see (or don’t see) from the police or the national security agencies. In those institutions, more transparency might be truly transformative. But laws like FOIA, for example, have much greater bite when it comes to the domestic regulatory agencies.
It’s also worth remembering that progressives who advocated for transparency in the early 1900s did not draw a sharp line between public and private bodies. They were concerned about domination and crony capitalism and plutocracy in all their forms. But we’ve trained our most powerful transparency tools on a certain subset of the administrative state—even though since the 1970s, the state has in many ways been losing power due to free-market policies and globalization.
Are transparency laws being used differently in the Trump era? Recently, for instance, the EPA proposed to not use particular research unless it can access and release the underlying data.
Right. This proposed policy is a good example of the larger phenomenon we’ve been discussing of transparency’s ideological drift toward a more anti-regulatory set of meanings, applications, and effects. But this tactic isn’t new. It has roots, for instance, in the so-called Data Access Act and Data Quality Act, which were passed around the turn of the millennium.
The bigger change I see right now is in how some progressive groups are turning to transparency laws as a tool against the Trump administration. For instance, a number of left-leaning groups that want to resist the administration have been celebrating the number of FOIA requests they file as a metric of their success.
I have a dual concern here. One is that the production of transparency alone doesn’t necessarily achieve anything. Second, a world of hyper-aggressive use of transparency measures against government may redound to the detriment of those who want to build a more effective and egalitarian state.
What is the right way to address these worrisome uses of transparency laws?
There is no one “right” way. But for starters, we need to be asking hard questions about how these laws are working. I don’t want to romanticize the old days of smoke-filled rooms, but I want us to think in a more nuanced fashion about the conditions under which institutional transparency is more and less beneficial, and for which groups. That’s hard work—and a new agenda for transparency scholars and advocates.
Published on May 1, 2018