a different transparency agenda

“Transparency” means making the government’s decisions public–along with all potential influences on government–so that the results will be better: less corrupt, more fair, wiser. “Sunlight is the best disinfectant,” said Louis Brandeis, and his theory has many proponents today.

One thing that has changed since Brandeis’s day is the sheer volume of decisions and possible influences. In 2004, federal administrative agencies published 78,851 pages of proposed rules. That does not count determinations by federal administrative law judges, provisions in contracts between federal agencies and grantees, or the policy decisions that those contractors make. The legislative branch, meanwhile, produces reams of policy in the form of appropriations bills and riders, earmarks and other detailed instructions in statutes, and committee reports. And flowing into government are countless campaign contributions, uncoordinated campaign expenditures, bids, lawsuits, and lobbying contacts.

It was not always so. The government during the New Deal and the Great Society made much more momentous decisions, but far fewer of them. For example, the Federal Register (which presents proposed federal rules) was 30 times longer during the supposed anti-regulatory regime of George W. Bush than it had been during the first term of Franklin D. Roosevelt, who was rapidly changing society. From the 1930s through the early 1970s, Congress was almost always considering some kind of “landmark” legislation, whether conservative or liberal, that drew the attention of the nation and that plausibly promised to change America. Only a few such bills have even been seriously considered since 1980. Yet routine decisions are made off the the floor of Congress at an enormous rate and with great cumulative effect.

This trend is no accident. It serves the interests of professional politicians, administrators, and lobbyists to avoid big, public decisions in favor of routine administration, negotiation, and deal-making. Also, the public lacks the political will for difficult choices and real changes of course. I strongly supported the health reform of 2010, but in its tentativeness, its delegation of hard choices to agencies and panels, and its internal compromises, it exemplifies modern lawmaking. And yet it seems to have been bold enough to exhaust the whole system.

The standard “transparency” agenda is to disclose all of the routine decisions and possible influences on them. Since the volume is astounding, no individual and no mass movement can possibly pay attention. The two solutions appear to be:

1. Crowdsourcing. Get thousands of eyes on the minutiae of federal decisions and campaign finance data to reveal evidence of corruption (or simple inconsistencies and gaps in policy). These are “bugs,” and the programmer’s adage is probably right: “Given enough eyeballs, all bugs are shallow” (or fixable). But our worst problems aren’t bugs. They are not corrupt acts or even patterns of corruption, but official, public policies that are shortsighted, unfair, or wasteful. It doesn’t take great masses of data to show what’s wrong with them. It does take public pressure to promote solutions, and there is no evidence that transparency drives such pressure.

2. Specialization: Most people cannot pay attention to all the details of policy, but experts on watersheds can watch the EPA, reporters on Capitol Hill can scrutinize congressional office expenditures, and civil libertarians can keep an eye on Guantanamo. The problems are: (1) wealthy special interests can watch regulators at least as effectively as public interest groups do; and (2) knowing that something is wrong doesn’t do any good unless lots of other people care.

This has been a pessimistic post so far, but I actually believe there is a solution. We must free government from the morass of routine decision-making so that Congress and the president can make really consequential reforms in the form of landmark statutes. Such acts will be transparent virtually by definition. People will care about them. And they have a chance of addressing our problems. Routine decision-making cannot do that, even if it is fully transparent and thoroughly scrubbed for “bugs.”

Making data public is fine, but is not likely to make a big difference. Process reforms should emphasize codification, simplification, and new rules against the delegation of crucial decisions to administrative agencies. No thanks to the Supreme Court, campaign finance reform will now require a constitutional amendment, but at least that means that our proposals in that domain should be radical. Meanwhile, social and environmental policy should be made through large, relatively simple, landmark statutes. Even though Congress may choke on such bills, they belong high on the agenda so that people can judge what passes and what fails to pass.