If you see something, say something.
That apothegm would make a valuable addition to Sunshine Week (March 13-19), the annual celebration of open government laws that publicize government’s inner workings for the inspection of everyday citizens. Less remarked upon is the equally important role freedom of speech plays in holding government accountable.
In short: information is only useful if it is used.
{mosads}Few people make a habit of reading government websites. They are far more likely to hear about political scandals or instances of corruption through news coverage, from political or membership organizations they belong to, from social media postings, or in conversations with friends and family. If government can restrict any of that speech, the information revealed through open records laws is robbed of its power to spur change.
Unfortunately, that is exactly what many state legislators and their regulatory allies are trying to do. Ironically, they are co-opting the rhetoric of transparency to do it, proposing that nonprofit groups that criticize candidates be forced to meet the same rigorous reporting requirements imposed on candidates, political parties, and professional political committees.
In addition to filing detailed reports of their spending to the government, federal law requires those groups to report the names, addresses, occupations, and employers of each of their donors who give over $200. Reports must be filed several times per year, more frequently near an election, and each comes with the threat of significant fines or a lawsuit if the group makes a mistake. All of that information is then posted online in a public, government-run database.
Most Americans have no idea how difficult it is to comply with these disclosure laws. One experiment asked 255 ordinary people to fill out actual disclosure forms from a trio of states and discovered that not one could do so correctly. Well-funded groups can hire as many attorneys and accountants as they need to get by, but most nonprofits choose to stay silent rather than deal with such complicated rules and penalties for failing to comply.
Publicizing a group’s contributors can also discourage it from taking a position on controversial issues out of fear of inviting harassment or inciting a boycott of its supporters. In fact, donor disclosure was one of the weapons used by the governments of southern states to thwart civil rights groups until the 1958 Supreme Court ruling NAACP v. Alabama recognized nonprofits’ right to keep their member lists private. Politics may be more civil today, but information posted online lives forever, and harassment over politics is no mere historical relic. In the past decade alone, instances of political harassment have been referenced in news media, in the opinions of Supreme Court justices, in state legislatures, and on the floor of Congress.
We tolerate the heavy burdens of disclosure for candidates and political groups because identifying their donors provides the public with information about who is supporting the candidates who ask for our vote and exercise government’s power on our behalf. But nonprofit organizations do not give money to candidates – indeed, they are prevented by law from doing so – so what does publicizing their donors tell us about the government?
Nothing. Instead of allowing citizens to monitor the government, this distorted brand of “transparency” enables the government to monitor its citizens. Orwell would be impressed.
Unlike other true transparency measures, the purpose of these laws is not to improve democracy or combat corruption but to quell criticism of public officials, something supporters of such measures will occasionally cop to. In 2010, while promoting a bill to expand government reporting requirements federally, Sen. Chuck Schumer (D-N.Y.) gleefully warned, “the deterrent effect [of the legislation] should not be underestimated.” He understood that the mountain of red tape created by the proposal would discourage groups from criticizing him, and discourage individuals from associating with groups that criticize him. And he supported the legislation explicitly for this purpose
Suppression of criticism wasn’t a bug of the bill, it was the central feature.
As in any discussion of government monitoring of citizens, there is the inevitable question: why insist on privacy if you have nothing to hide? The answer here is twofold: 1) because no one wants a vindictive public official coming after them, and sometimes all it takes to provoke powerful politicians is donating to a group they dislike, and 2) because no one should have to bend over backwards complying with arcane government rules in order to exercise their First Amendment right to criticize politicians.
Open government requires more than posting some records on a .gov website. Citizens must also be unrestricted in their ability to access and spread the information they find. A labyrinth of regulations discouraging that process undermines open government, no matter how cleverly politicians shield their intentions with the language of transparency.
Transparency is important – for the government. Privacy is important for the people. Cast sunlight on government, and you’ll get a clearer view of how the political process works. Cast sunlight on the people, and we’ll all just get burned.
Wachob is the McWethy fellow and policy analyst at the Center for Competitive Politics in Alexandria, Virginia.