Government Transparency

When is sunlight a disinfectant, and when does it simply burn?

This is the latest post in my constitutional design series. You don’t have to have read any of the others to read this one, but it is helpful.

An important part of democracy is that people know what their politicians are doing. Still, you probably don’t want the public to know literally everything that happens in government. This piece is about finding that balance.

Key Distinctions

In his paper Output Transparency vs. Input Transparency, Cass Sunstein draws a distinction between outputs and inputs in government. He presents two main examples of outputs: law - regulations, statutory law, etc. - and facts produced by the government - studies. Then with inputs, he talks mainly about discussion among different members of the government that goes into producing outputs. He also discusses conclusions drawn from facts (which go into the writing of law) as sort of an in between category.

I don’t love the input/output binary and think you should think of it as an axis from facts to discussion to law.

But actually, I don’t like the names here. Instead of law, I want to call it actions. This is what the government is doing. If you take my definition of law as any direction given to a government employee, law should be a complete account of what the government is doing, but I think actions captures more of what I really care about.

Instead of input, I’d like to use the word formulation - it is the record of how the actions came to be.

Facts is fine - that term can stay.

Now the axis makes a bit more sense: politicians look at facts, formulate actions to respond to them, and then take those actions. Some examples of things on this axis:

Action transparency underlies democracy

It is pretty easy to see why government actions should be transparent. Democracy requires that voters know what the politicians in power are doing so that they can re-elect them or not.

Maybe you could argue this is less important for lower salience issues that people don’t vote on anyway, or where we’d expect politicians to have better views than the public, but as I discussed in this piece I think it’s hard to make a principled arguments about in what cases you should shield politicians from public opinion.

Maybe you could also argue against transparency on the basis of accountability democracy - that voters should assess the job of those in power based on their results, not their actions. I think that this is quite an extreme and hard-to-defend position for high level actions (statutory laws, executive orders, etc.), although it might make some sense for lower-level actions.

You might also question the utility of transparency for non-partisan entities like the courts, who are not subject to election and supposed to be shielded from public opinion. Still I think these entities are supposed to be subject to some sort of pressure - maybe the pressure of their professional peers - to ensure they are actually doing their job in a principled manner. This requires knowing what they are doing.

So unless you have some more specific reason about why a certain action should be private, you should default to making it transparent.

Formulation transparency is about motivation

Formulation is more complicated. The main thing that formulation reveals is motivation. As I wrote in this post, I think politicians’ motivation comes down to three things:

• their political views, ie what actions they would take to further society

• their personal interest, their desire to enrich themselves (corruption) or stay in office (potentially by destroying democracy)

• norms they feel they have to adhere to

Formulation can reveal all three in important ways.

On political views, I think it’s important to know if Trump is enacting tariffs because he likes tariffs or if he’s enacting tariffs because he wants leverage to make trade deals with different countries. These revealed political views serve as a good indicator of what types of actions the politician is likely to do in the future - in this case, whether Trump is likely to pursue trade deals. They also can help reveal when the government is half-assing something. It’s often hard to tell how thoroughly the government is following through with claimed actions, and revealed motivation helps a lot here.

On personal interest, I think it’s important to know if a regulation was slashed because the minister’s nephew works at an affected company or as a result of principled cost-benefit analysis. Or if a change to an electoral system was made after carefully considered debate or because politicians want to stay in office.

On norms, I think it’s important to know if a certain ruling was made based on serious analysis of the law or just willy nilly to adhere to the judge’s political views.

But sometimes motivation is overrated

In his piece Against Transparency, Matthew Yglesias compiled a good list of reasons to prefer the formulation of government action stay private.

I’d like to bring up three in particular:

• 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.

• If a previously embarked-upon course of action isn’t working, you may want to quietly change course rather than publicly admit failure.

• Healthy brainstorming processes often involve tossing out bad or half-baked ideas in order to stimulate thought and elevate better ones.

The main point underlying these three reasons is that sometimes the public makes too much of the motivation behind certain actions - what ultimately matters at the end of the day are the government’s actions. The politicians in power might be doing something for political gain, and that can be ok. Politicians might throw out bad ideas during brainstorming that offend people, but as long as they don’t end up pursuing these ideas, it’s fine.

So it’s a tricky balance. You should aim to make formulation transparent if you think it’s really important for understanding current or future actions of politicians, and not just going to be used as a gotcha if the intentions of politicians aren’t totally pure.

Facts are important for assessing results

Sunstein brings up two main reasons for making facts transparent.

The first is that facts can just be useful to the public. He brings up the example of the GPS, which is a tool created by the government that has served very useful in allowing people to navigate around.

The second, more relevant to constitutional design, is that facts allow the public to assess the state of the country. For various reasons, the government is often the entity in society that collects the most information about how things are going. It collects mortality statistics, crime statistics, economic statistics, etc. These facts are very useful to the public in being able to assess how well those in power are running the country.

Again I think it’s hard to come up with principled reasons for when shielding politicians from consequences by hiding facts from the public would be a good idea. Maybe you think certain facts are overrated by the public, but I think democracy dictates that the public ought to decide for themselves. So as with actions unless you have specific reasons to keep certain facts private, make them public.

Specific Considerations

Let me go some more of the specific considerations for making information private.

National security concerns

Countries have enemies, which means it’s important to keep certain information safe from them. This can apply to facts (eg conditions on the ground), formulation (eg debate over military action), or actions (eg military strikes).

One problem might be that you need someone to declare information classified, and if it’s the people in power they might have reason to hide information by calling it classified. So you need norms or legal rules on what to call classified.

I would allow the legislature, both the majority and the opposition, to see some classified information though so that they can more thoroughly scrutinize the executive. This is a difficult balance - you probably can’t let them see everything, if you have 500 legislators it can be easy for things to get out. Maybe you could limit certain classified information to very senior or high-ranking legislators.

Maintaining good relations

If national security concerns are about enemies, maintaining good relations is about allies. This applies both to other countries and to different actors within a country, even within a government, that those in power want to retain good relationships with. As Yglesias puts it:

• 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.

This mostly applies to formulation.

Panic

Yglesias writes:

• 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.

I’m skeptical. I can imagine an argument that panic is bad, but I’m not exactly sure what qualifies as panic and when it’s actually a problem. Did the public panic about COVID in March 2020? If so, were they wrong to be?

I really don’t think panic is a good reason to keep things private. I think it’s more an excuse than anything else.

High-Level Law

I want to take some time to talk specifically about high level law - things like statutory/constitutional law, court rulings, executive orders, and regulations; probably what you usually think of when you think of law. I want to discuss whether it’s important to make the laws themselves - rather than general descriptions of them - public.

Making law public maximizes accountability

This is pretty simple. Sure, you could just make a general description of the law public. But to maximize accountability, you can’t beat just making the law public.

Following the law requires knowing what it is

Another basic reason for transparency in law is that people should know what laws they have to follow. If the government makes smoking illegal, people should know that so that they know not to smoke.

I will say that this rationale is weaker than it might seem. Often people don’t know most of the laws they have to follow - they don’t know what the fine is for speeding, or what exactly the laws regarding alcohol are. People make reasonable inferences about what the law likely is, and how likely it is to be enforced, and live their life based on that. It wouldn’t change that much if nobody knew what the fine is for speeding until they actually had to pay it.

The people who really benefit from transparency are lawyers, and then anyone who relies on them. If people want to know whether something is legal or not before doing it, they can consult a lawyer, who knows what the law is and can advise them. I think this case is especially strong for businesses, who try really hard to optimize for not paying fines.

I suppose it could be possible to create a system where only lawyers are allowed to know what the law is, like getting a law license gives you access to the rulebook. But things might get thorny if the government tries to restrict access, and anyway I don’t know what the point of that would be.

A government of law, not of men

Often, though, law constrains what the government is allowed to do, not what you’re allowed to do. In that case, the main purpose of making law public is ensuring that the government actually follows the law.

Again there’s the question of how much transparency actually matters. How exactly does making law transparent ensure that it is actually followed?

I think there are a few key actors involved here. One is the courts - if the government breaks the law, it is the courts’ job to say so and get them back on track. There is a strong norm that the government must abide by court rulings, and if not the court has some mechanisms to force their hand.

But how do you ensure the courts are following the law? Again you rely heavily on norms. When they are broken, I think this is where some other actors come in. As before, lawyers are the ones who know what the law is and inform others. Then it is the role of the media to highlight when the courts or the government are breaking the law and disseminate that information. Then, hopefully public pressure is enough to get the courts or the government to back down. The idealized mechanized here is that the public will vote out politicians that break the law, although I think the actual mechanisms in place are more like “some people in government, who aren’t that dissimilar from the public at large, are outraged and use their leverage to force legal compliance”.

Legislative votes

Lastly, I want to discuss one of the most interesting parts of transparency, legislative votes.

When the legislature votes on a bill, the public gets a quick snapshot of every legislator’s political position on an issue. Legislators can always downplay the importance of their vote by claiming that the bill’s wording is biased, or that they were just voting against the bill because they wanted certain specific changes, but the vote itself is still undeniable. I’m not sure how much people actually learn about these votes, but it be might more than you think (the votes could come up in ads, journalists could use them to characterize candidates, etc.)

Symbolism

Sometimes these votes are symbolic, when they are on a measure that’s destined to fail because the majority bloc is voting against it and is just using it as a tool to expose the minority as holding an unpopular position.

These votes provide less information for the public than substantive votes because legislators can just lie, but still they can be useful. A legislator might have moral qualms with voting against a symbolic resolution even when it’s popular, or they might be torn between different political interests that cause different parts of the electorate to get mad at them no matter what they vote.

This introduces an asymmetry: because the majority bloc in legislature (usually) decides what comes to a vote, they can expose their opposition in this way, while the minority bloc cannot expose the majority’s unpopular positions. Even if you like the incumbent party having a leg up in public opinion, I don’t really think this is the type of advantage it makes sense to give them. So to address it, you can allow the minority bloc to force votes by requiring that any resolution that gets the signature of more than 1/3 of the legislature gets voted on. I would limit these votes to symbolic resolutions, to match the symbolic nature of the votes that the majority party forces. I also do think there are legitimate accountability reasons to allow the leader of the majority bloc to control what legislation gets voted on. The only thing with this mechanism is that you just have to limit the number of such symbolic votes to prevent this process from being used to jam up the legislature’s time.

Status Quo Bias

Another asymmetry in votes is that the legislature only has to vote on what to change and not on what to maintain. This allows politicians to never have to bring up an unpopular position for a vote as long as it is the status quo. This is especially impactful when there is bipartisan consensus, so an issue never comes to a vote no matter who is in power.

This is harmful if you don’t think politicians should be able to freeze out the public view like this. The solution is to force a piece of legislation to be voted on if a public petition with it gets a certain numbers of signatures. See my post on direct democracy for more discussion of this issue and this proposal.

Secret Ballot

What about the other direction: what if you want to insulate politicians from the public view by making each legislator’s vote secret. Are there any instances where this would make sense?

Most laws are going to be supported by the majority bloc in the legislature, and the party will attribute them to the majority bloc, so it doesn’t really matter if these votes are secret.

Secret ballot becomes important when some members of the majority bloc break off and vote with the minority. This can happen either with bills that pass or with bills that fail. I don’t think secret ballot is a good idea with normal majority-vote bills - it is democracy after all, people should know the views of their legislators.

The one version of secret ballot I think is plausible is as follows. Legislators can sign on to secret petitions that the public cannot see. If any such secret petition gets the signature of a supermajority of the legislature, it goes to either to a vote by the entire legislature or to a public referendum. If it is then approved, it goes into law, over any veto of the leader. (And perhaps you could have this process for constitutional amendments if a supermajority of the public approves of it).

The main thing this mechanism targets is a case where a lot of members of the majority-bloc in the legislature are afraid of voting for a bill because they don’t want punishment by their own party - for example, if they are afraid to be primaries because they are led by a leader with a cult-like following like Trump. So they can instead sign on to these secret petitions to pass legislation. This is a bit logistically difficult to implement, because you have to hide who signs on to the referendum from party leadership themselves so they cannot punish members who sign on, but it might be possible.

This mechanism hurts accountability - part of democracy is being able to control what laws get passed when you’re in power so you can be judged for them - but that might be worth it.

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I think if you’re looking for a simple rule, public actions, public facts, and private formulation is a good one to aim for. But if you’re willing to think more carefully, I think you can do better than that.