Transparency's Ideological Drift.

• Author: Pozen, David E.

ARTICLE CONTENTS INTRODUCTION 102 I. DEFINING IDEOLOGICAL DRIFT 105 II. WHEN TRANSPARENCY WAS (MORE) PROGRESSIVE 107 A. The Progressive Era 108 B. The 1960s and 1970s 115 III. TRANSPARENCY'S RIGHTWARD DRIFT 123 A. Open Records Law 124 B. Open Meetings Law 127 C. Legislative Process 130 D. Campaign Finance Regulation 133 E. Consumer Protection and Targeted Transparency 135 F. Open Data 141 G. International Economic Policy 144 IV. DRIVERS OF DRIFT 146 A. Beyond Transparency Law 147 1. The Neoliberal Turn 147 2. Changes in the Media and Ideas Industry 149 3. Declining Trust in Government 151 4. Advances in Information Technology 152 B. Within Transparency Law 154 1. The Rise and Rise of National Security Secrecy 154 2. Corporate Capture and Anti-Public-Sector Bias 156 3. Diminishing Marginal Returns 158 CONCLUSION: REDIRECTING TRANSPARENCY? 160 INTRODUCTION

American law concerning disclosures of information to the public, or what we now call transparency, was substantially forged during two historical periods: the Progressive Era around the turn of the twentieth century and the decade between the mid-1960s and the mid-1970s. In each of these periods, legal reformers imagined that increasing transparency would decrease certain sorts of exploitation and abuse. And in so doing, they believed, transparency would help to promote bureaucratic rationality, secure confidence in government, and distribute power more equitably. Whether it was the "people's lawyer" Louis Brandeis and President Wilson extolling the virtues of publicity in the 1910s or Congressman John Moss and representatives of the news media fighting for the Freedom of Information Act a half century later, the motivating assumption was that exposing powerful institutions to the light of ongoing scrutiny would not only "disinfect" (1) those institutions but also bring about a more effective, responsive, and democratic regulatory state.

Since those formative periods, however, the meaning of transparency has changed. Transparency is still celebrated as a tool to root out undesirable conduct, and transparency laws are still used for this purpose. But across many policy domains, the pursuit of transparency has become increasingly unmoored from broader "progressive" values such as egalitarianism, expertise, or social improvement through state action and increasingly tied to agendas that seek to reduce other forms of regulation and to enhance private choice. If legal guarantees of transparency were once thought to make government more participatory and public-spirited, they are now enlisted to make government leaner and less intrusive.

Transparency has thus experienced what Professor Jack Balkin calls ideological drift. (2) In the United States, as well as in other Western democracies, transparency's political valence has become less progressive and more libertarian over the past several decades. Many factors have contributed to this development, ranging from corporate capture of open records regimes to the emergence of the digital age and new technologies of disclosure to the ascendance of neoliberal political economy and its preferred modes of public regulation. Progressives themselves have unwittingly enabled this drift by embracing a vision of transparency as a universal tenet of "good governance," (3) even a primary virtue worth attaining for its own sake. (4) Reversing the drift would require engaging with transparency in more skeptical, instrumental, and institutionally sensitive terms: not as an end in itself, but rather as a means to achieve particular social goods; and not as a transcendent normative ideal, but rather as an administrative technique like any other--with contestable moral, political, and distributional implications.

Transparency's ideological drift, this Article further suggests, is both symptom and cause of a multigenerational movement in American regulatory reform, from positive statism to skeptical statism and antistatism. Recent historical scholarship has shown how Progressive Era elites and New Deal administrators embraced civil liberties law "to strengthen rather than to circumscribe the administrative state," only to see that body of law take an "antistatist and judge-centric turn" in subsequent decades in response to totalitarianism abroad and a growing federal bureaucracy at home. (5) Transparency law took a comparable turn in this period and then a more decisive turn in the late twentieth century. In explicating transparency's transformation, accordingly, I hope to fill in one piece of a much larger story about changes in American attitudes toward constraining and empowering government.

Before proceeding, two significant caveats are in order. First, my focus is on transparency as a legal and administrative norm, or the idea that institutions should be required by law to make information about their activities available to the general public or other outside monitors. (6) I am not concerned here with disclosures made by individuals, whether in their intimate relationships or in their dealings with state and society. Put differently, this is not an article about personal exposure or privacy. (7)

Second, even when defined as a regulatory technique, transparency is a protean concept that may be invoked in a wide range of settings for a wide range of ends. (8) In seeking to analyze its development over time, I am necessarily glossing many historical complexities in order to limn a general, but discernible, arc within mainstream law and policy circles. I do not mean to suggest that transparency used to be a wholly or uncomplicatedly progressive idea that has been betrayed--or that it has any "true" or essential meaning. (9) Rather, transparency was depicted throughout the twentieth century as a fix for perceived failures of governance. (10) As theories and practices of governance evolved in certain directions, and as new groups seized on disclosure laws for new purposes, applications and understandings of transparency evolved along with them. That is how ideological drift often works.

1. DEFINING IDEOLOGICAL DRIFT

   The policies, principles, and ideas that we use to evaluate and explain the legal and social order, Balkin has observed, "do not have a fixed normative or political valence." (11) On the contrary, their "valence varies over time as they are applied and understood repeatedly in new contexts and situations." (12) This is the phenomenon of ideological drift. An argument or a trope that "appears on its face to have determinate political consequences" in a certain period may come to have very different meanings and effects when repeated in a future period. (13) An argument or a trope that is initially seen as "populist" or "left-wing" may in later years be identified with causes seen as "elitist" or "right-wing," and vice versa--although Balkin suggests that "the most common examples" of ideological drift "are comparatively liberal principles that later serve to buttress comparatively conservative interests." (14)

   The examples of "colorblindness" and "free speech" are instructive. When the first Justice Harlan stated in his 1896 Plessy v. Ferguson dissent that the "Constitution is color-blind," (15) it seemed "a radical assertion of racial equality." (16) Against the backdrop of Jim Crow, the Black Codes, and widespread practices of racial apartheid, for the courts to insist on constitutional colorblindness would have been an enormous advance for the legal position of African Americans and other racial minorities. By the 1990s, however, Justice Harlan's language had "become the rallying cry of conservatives who opposed affirmative action programs that were designed to disestablish racial stratification." (17) The colorblindness conceit drifted from left to right. Arguments for unfettered free speech have moved in a similar direction. In the early part of the twentieth century, in Balkin's telling, left-liberals in the United States "tended to take relatively libertarian views on free speech," while conservatives were "more likely to balance the interest in free speech against the interest in social order" and "the preservation of important social values." (18) Yet by the end of the century, many left-liberals had come to endorse a balancing approach to the First Amendment in areas such as sexual harassment and campaign finance, (19) while many conservatives were "using the very same absolutist forms of argument offered by the left in previous generations" to oppose economic and social welfare regulation. (20)

   A slightly more formal definition of ideological drift may be helpful. We can say that ideological drift occurs in law and public policy when:

   1. At Time One, an idea tends to be associated with policy outcomes or reform agendas that have political orientation X; and

   2. At Time Two, the idea becomes substantially (though not necessarily exclusively) associated with policy outcomes or reform agendas that have political orientation not-X

   This is intended to be a broad definition. It does not require the operation of ideology in any comprehensive sense. And it allows for different types and degrees of drift, depending on what exactly is changing over time--for instance, the normative leanings of an idea's proponents or the practical effects of its implementation--and by how much. Complete reversal of an idea's political valence is not required; meaningful movement toward the other end of the political spectrum is all that is necessary and sufficient. Balkin portrays ideological drift as a recurring phenomenon, indeed a "ubiquitous" one, (21) and this formulation seems to capture what he and other users of the term have in mind.

   Ideological drift occurs for two basic reasons. First, even if the content of a policy or principle appears to remain stable over time, developments in the wider world--shifts in culture, technology, demography, political organization, and so on--will invariably alter its social and...