Against Transparency

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BOOKS AND ARTS OCTOBER 9, 2009

Against Transparency

I.

In 2006, the Sunlight Foundation launched a campaign to get members of Congress to post their daily calendars on the Internet. "The Punch-Clock Campaign" collected pledges from ninety-two candidates for Congress, and one of them was elected. I remember when the project was described to me by one of its developers. She assumed that I would be struck by its brilliance. I was not. It seemed to me that there were too many legitimate reasons why someone might not want his or her "daily official work schedule" available to anyone with an Internet connection. Still, I didn’t challenge her. I was just coming into the "transparency movement." Surely these things would become clearer, so to speak, later on.

In any case, the momentum was on her side. The "transparency movement" was about to achieve an extraordinary victory in the election of Barack Obama. Indeed, practically nobody any longer questions the wisdom in Brandeis’s famous remark--it has become one of the reigning clichés of the transparency movement--that "sunlight is ... the best of disinfectants." Like the decision to go to war in Iraq, transparency has become an unquestionable bipartisan value.

And not just in politics. If health care reform ever emerges from Congress, it is certain to spread nationally a project to require doctors to reveal to an Internet-linked database any financial interests they may have in any drug company or device manufacturer. Type the name of any doctor into the database, and a long list of consulting contracts, stock ownership, and paid speaking arrangements will be returned to you, presumably to help you avoid doctors with too many conflicting loyalties, and to steer you to doctors who have themselves steered clear of conflicts.

How could anyone be against transparency? Its virtues and its utilities seem so crushingly obvious. But I have increasingly come to worry that there is an error at the core of this unquestioned goodness. We are not thinking critically enough about where and when transparency works, and where and when it may lead to confusion, or to worse. And I fear that the inevitable success of this movement--if pursued alone, without any sensitivity to the full complexity of the idea of perfect openness--will inspire not reform, but disgust. The "naked transparency movement," as I will call it here, is not going to inspire change. It will simply push any faith in our political system over the cliff.

 

The naked transparency movement marries the power of network technology to the radical decline in the cost of collecting, storing, and distributing data. Its aim is to liberate that data, especially government data, so as to enable the public to process it and understand it better, or at least differently.

The most obvious examples of this new responsibility for disclosure are data about the legislative process: the demand, now backed by the White House, that bills be posted to the Internet at least twenty-four hours before they are voted upon, or that video of legislative hearings and floor debate be freed from the proprietary control of one (easily disciplined) entity such as C-SPAN. The most dramatic examples so far are public data from executive agencies: the website Data.gov is just beginning to assemble an extraordinary collection of "high-value datasets" from the executive branch, all available in standard open formats, and free for the taking.

Without a doubt, the vast majority of these transparency projects make sense. In particular, management transparency, which is designed to make the performance of government agencies more measurable, will radically improve how government works. And making government data available for others to build upon has historically produced enormous value--from weather data, which produces more than $800 billion in economic value to the United States, to GPS data, liberated originally by Ronald Reagan, which now allows cell phones to instantly report (among other essential facts) whether Peets or Starbucks is closer.

But that is not the whole transparency story. There is a type of transparency project that should raise more questions than it has--in particular, projects that are intended to reveal potentially improper influence, or outright corruption. Projects such as the one that the health care bill would launch--building a massive database of doctors who got money from private interests; or projects such as the ones (these are the really sexy innovations for the movement) to make it trivially easy to track every possible source of influence on a member of Congress, mapped against every single vote that the member has made. These projects assume that they are seeking an obvious good. No doubt they will have a profound effect. But will the effect of these projects--at least on their own, unqualified or unrestrained by other considerations--really be for the good? Do we really want the world that they righteously envisage?

 

With respect to data about campaign contributions, the history of transparency is long. Disclosure requirements for federal elections are a century old next year. For more than three decades, we have known the names of everyone who gives significant amounts to a federal campaign. Or at least we have "known" them in the sense that if you hustled yourself to a government file cabinet, you could discover who contributed what--often months after the election, and often with the cabinet located far from any convenient place. To this day, practical matters work against practical access. In the Senate, for example, those names are reported to the FEC the old-fashioned way--on paper. Staffers for senators collect the data in sophisticated computer programs that make it simple to manage efficiently the most valuable data for any political campaign. When it comes time to report the data that they have collected, however, they print the data on paper, forcing FEC staffers to re-enter it into FEC databases. This process takes time, giving senators a comfortable window at the end of any campaign to secure last- minute funding to avoid defeat with minimal scrutiny.

The hope of the naked transparency movement is to change this. Through better code--in better legislative rules and in better technology--its aim is to make it trivially easy to get access to records suggesting influence, and then link those records automatically to the possible influence that they suggest. Consider, for example, an early instance of this work, presented in a recent report by Maplight.org, analyzing the House vote on the cap-and-trade bill. Titled "How Money Watered Down the Climate Bill," the report enumerates a long list of correlations between money given and results produced. In a section labeled "Amendment to gut the whole bill," for example, the report states: "Each legislator voting Yes … received an average of $37,700 from the Oil & Gas, Coal Mining and Nuclear Energy industries between 2003 and 2008, more than three times as much as the $11,304 received by each legislator voting No." In a section labeled "Oil and gas giveaway," describing an amendment to "increase eligibility for industrial polluters like oil and gas refiners to receive carbon allowances," the report states that "the Oil & Gas industry gave an average of $72,119 to Energy & Commerce Committee members from 2003 [to] 2008." And in a section labeled "Redefining renewable biomass," the report describes an amendment "to broaden the definition of renewable biomass [which the League of Conservation Voters said] would have removed critical safeguards that prevent habitat on our nation’s public and private forests from being plowed up": "Energy & Commerce Committee members who voted Yes on the Walden amendment received an average of $25,745 each from the Forestry and Paper Products industry, ten times as much as the $2,541 received, on average, by each member voting No."

This is a crude but powerful beginning. It points to an obvious future. Even this clarity took an enormous effort to produce, and there are obviously a million other ways in which the data might be inspired to speak. As Congress complies with the clear demands of transparency, and as coders devise better and more efficient ways to mash-up the data that Congress provides, we will see a future more and more inundated with claims about the links between money and results. Every step will have a plausible tie to troubling influence. Every tie will be reported. We will know everything there is to know about at least the publicly recordable events that might be influencing those who regulate us. The panopticon will have been turned upon the rulers.

What could possibly be wrong with such civic omniscience? How could any democracy live without it? Finally America can really know just who squeezed the sausage and when, and hold accountable anyone with an improper touch. Imagine how much Brandeis, the lover of sunlight, would have loved a server rack crunching terabytes of data. As a political disinfectant, silicon beats sunlight hands down.

Brandeis coined his famous phrase in 1914, in a book called Other People’s Money, an extraordinary progressive screed directed against that generation’s bankers. (He wrote the book when he was still practicing law. It is the sort of book that no Supreme Court nominee today could survive having written.) In the context of the then-frenzied demand for financial reform, Brandeis called for "publicity"--the idea that "bankers when issuing securities … make public the commissions or profits they are receiving."

This publicity was designed to serve two very different purposes. First, Brandeis thought that the numbers would shame bankers into offering terms that were more reasonable--a strategy that has been tried with executive compensation by the SEC, with the result not of shame, but jealousy, leading to even higher pay. Second, and more significantly, Brandeis believed that publicity would make the market function more efficiently. The "law," Brandeis counseled, "should not undertake … to fix bankers’ profits. And it should not seek to prevent investors from making bad bargains." But the law should require, he emphatically declared, "full disclosure," to help the buyer judge quality, and thus better judge the "real value of a security." Transparency could thus make a market work better, and should be encouraged as a more efficient way to regulate this potentially dangerous market.

In this simple insight, Brandeis described what has become a school of regulatory theory--what Archon Fung, Mary Graham, and David Weil describe in Full Disclosure: The Perils and Promise of Transparency as "targeted transparency." As they define it, targeted transparency "represents a distinctive category of public policies that, at their most basic level, mandate disclosure ... of standardized, comparable, and disaggregated information regarding specific products or practices to a broad audience in order to achieve a public policy purpose."

Its "ingeniousness," as Brandeis had promised, "lies in its mobilization of individual choice, market forces and participatory democracy through relatively light-handed government action." Moreover, this "ingeniousness" has now been copied, and ever more frequently. Fung and his colleagues have catalogued fifteen targeted transparency programs in their study, ten of them created since 1986, all with substantial bipartisan support, and all with a common mechanism: give the consumer data he or she can use, and he or she will use it to "regulate" the market better.

This mobilization works when the system gives consumers information that they can use, and in a way that they can use it. Think about the requirement that car manufacturers publish average mile-per-gallon statistics for all new cars. We all can compare 36 mpg to 21 mpg. We all understand what that comparison means. That "targeted transparency" rule simplifies the data and presents it in a way that conveys meaningful information. Once simplified and standardized, it makes it possible for consumers to change the way the market works.

The problem, however, is that not all data satisfies the simple requirement that they be information that consumers can use, presented in a way they can use it. "More information," as Fung and his colleagues put it, "does not always produce markets that are more efficient." Instead, "responses to information are inseparable from their interests, desires, resources, cognitive capacities, and social contexts. Owing to these and other factors, people may ignore information, or misunderstand it, or misuse it. Whether and how new information is used to further public objectives depends upon its incorporation into complex chains of comprehension, action, and response."

To know whether a particular transparency rule works, then, we need to trace just how the information will enter these "complex chains of comprehension." We need to see what comparisons the data will enable, and whether those comparisons reveal something real. And it is this that the naked transparency movement has not done. For there are overwhelming reasons why the data about influence that this movement would produce will not enable comparisons that are meaningful. This is not to say the data will not have an effect. It will. But the effect, I fear, is not one that anybody in the "naked transparency movement," or any other thoughtful citizen, would want.

II.

What does the fact of a contribution to a member of Congress mean? Does a contribution cause a member to take a position? Does a member’s position cause the contribution? Does the prospect of a contribution make a member more sensitive to a position? Does it secure access? Does it assure a better hearing? Do members compete for positions based upon the contributions they might expect? Do they covet committee assignments based upon the contributions that the committee will inspire? Does Congress regulate with an eye to whether its regulation might induce more contributions?

There is little doubt that the answer to each of these questions is, in some sense and at some time--remember those qualifiers!--yes. In a series titled Speaking Freely, published by the Center for Responsive Politics, you can find testimony from many former members from both parties to support each of those assertions. Everyone inside the system knows that claims about influence are, to some degree, true. It is the nature of the system, as we all know.

But there is also little doubt that it is impossible to know whether any particular contribution or contributions brought about a particular vote, or was inspired by a particular vote. Put differently, if there are benign as well as malign contributions, it is impossible to know for any particular contribution which of the two it is. Even if we had all the data in the world and a month of Google coders, we could not begin to sort corrupting contributions from innocent contributions.

Or at least "corrupting" in a certain sense. All the data in the world will not tell us whether a particular contribution bent a result by securing a vote or an act that otherwise would not have occurred. The most we could say--though this is still a very significant thing to say--is that the contributions are corrupting the reputation of Congress, because they raise the question of whether the member acted to track good sense or campaign dollars. Where a member of Congress acts in a way inconsistent with his principles or his constituents, but consistent with a significant contribution, that act at least raises a question about the integrity of the decision. But beyond a question, the data says little else.

 

But then, so what? If the data does not tell us anything, what is the harm in producing it? Even if it does not prove, it suggests. And if it suggests something false, then let the offended legislator rebut it. The public will weigh the truth against the charge. Enter another Brandeisean cliché: "If there be time to expose through discussion the falsehood and fallacies … the remedy to be applied is more speech, not enforced silence." This sounds right.

But would such a remedy work? Would more speech really help to uncover the falsehoods? In answering this question, it helps to think concretely. How, actually, does this sort of dialogue proceed? Consider an example. In the waning days of the Clinton administration, friends of the credit-card industry were trying to get what would become the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 enacted into law. President Clinton was originally in favor of the bill. But in 2000, first lady Hillary Clinton read an op-ed piece in The New York Times detailing the harm that the bill would do to lower-middle-class Americans. She began referring to "that awful bill"--lower case "b"--and took on the mission of stopping her husband from making it law. He apparently acquiesced, letting the bill die in a pocket veto.

Two years later, First Lady Clinton was Senator Clinton. And two years later, she had received over $140,000 in campaign contributions from credit-card and financial-services companies. Two years later, the bill came up for a vote. But by now Senator Clinton apparently saw things differently from how First Lady Clinton had seen them. In 2001, she voted for "that awful bill" twice. (In 2005, she switched her position again, opposing its final passage.)

Objectively speaking, there are any number of reasons why Senator Clinton would view the financial-services sector differently from how First Lady Clinton would view it. She was, after all, a senator from New York. New York has a special relationship to financial-services companies. (Put aside for a moment that it also has a special relationship to lower-middle-class credit-card holders.) There are many reasons why these differences would have an effect on her support for an "awful bill." But whatever objectivity might teach, we all know something undeniable about this fact of $140,000 being attached to any sentence about switching support in a political context. Everyone learning the fact now "knows" just why she switched, don’t they? Whether true or not, money is the reason for the switch in this case. Even supporters of Senator Clinton found it hard to see things differently.

The point is salience, and the assumptions of our political culture. At this time the judgment that Washington is all about money is so wide and so deep that among all the possible reasons to explain something puzzling, money is the first, and most likely the last, explanation that will be given. It sets the default against which anything different must fight. And this default, this unexamined assumption of causality, will only be reinforced by the naked transparency movement and its correlations. What we believe will be confirmed, again and again.

But will not this supposed salience of money--the faithful disciple of Brandeis asks--simply inspire more debate about whether in fact money buys results in Congress? Won’t more people enter to negate the default? Like a rash of flat-earth defenders, won’t the attention cause round-earth truth to spread? Again, we must keep our intuitions guided by the concrete. No doubt false claims will sometimes inspire more truth. But what about when the claims are neither true nor false? Or worse, when the claims actually require more than the 140 characters in a tweet?

This is the problem of attention-span. To understand something--an essay, an argument, a proof of innocence-- requires a certain amount of attention. But on many issues, the average, or even rational, amount of attention given to understand many of these correlations, and their defamatory implications, is almost always less than the amount of time required. The result is a systemic misunderstanding--at least if the story is reported in a context, or in a manner, that does not neutralize such misunderstanding. The listing and correlating of data hardly qualifies as such a context. Understanding how and why some stories will be understood, or not understood, provides the key to grasping what is wrong with the tyranny of transparency.

 

Once we have named it, you will begin to see the attention-span problem everywhere, in public and private life. Think of politics, increasingly the art of exploiting attention-span problems--tagging your opponent with barbs that no one has time to understand, let alone analyze. Think of any complex public policy issue, from the economy to debates about levels of foreign aid.

Even the increased demand for "privacy" in acts that one commits in public-- activities on the Internet, for example--might best be explained by the attention span problem. Consider, for example, a story by Peter Lewis in The New York Times in 1998:

Surveillance cameras followed the attractive young blond woman through the lobby of the midtown Manhattan hotel, kept a glassy eye on her as she rode the elevator up to the 23rd floor and peered discreetly down the hall as she knocked at the door to my room. I have not seen the videotapes, but I can imagine the digital readout superimposed on the scenes, noting the exact time of the encounter. That would come in handy if someone were to question later why this woman, who is not my wife, was visiting my hotel room during a recent business trip. The cameras later saw us heading off to dinner and to the theater--a middle-aged, married man from Texas with his arm around a pretty East Village woman young enough to be his daughter…. As a matter of fact, she is my daughter.

"Privacy" here would hardly be invoked for the purpose of hiding embarrassing facts. Quite the contrary: the hidden facts here are the most innocent or loving. Yet it would hide these facts because we may be certain that few would take the time to understand them enough to see them as innocent.

The point in such cases is not that the public isn’t smart enough to figure out what the truth is. The point is the opposite. The public is too smart to waste its time focusing on matters that are not important for it to understand. The ignorance here is rational, not pathological. It is what we would hope everyone would do, if everyone were rational about how best to deploy their time. Yet even if rational, this ignorance produces predictable and huge misunderstandings. A mature response to these inevitable misunderstandings are policies that strive not to exacerbate them.

III.

So are there ways to respond? Can we get the good of transparency without the bad? The Journal of the American Medical Association thought that it had found a way to do so. JAMA has long had policies designed to ferret out conflicts of interest between JAMA-published authors and the medical industry. Like most journals in medicine, JAMA required disclosure, and was among the most aggressive in the extent and the reach of the disclosures required.

But as attention to disclosure grew in the medical field, the failure to disclose adequately has become a serious charge. Omission is now a serious commission. Indeed, the mere charge of failing to disclose is enough to stain a reputation. As with a charge of sexual harassment, the establishment of innocence does not really erase its harm.

In response to this sensitivity, JAMA instituted a policy that was designed to avoid the costs of wrongful charges of conflicts of interest. As described in The Wall Street Journal, JAMA required that anyone filing a complaint with JAMA that a conflict had not been disclosed must remain silent about the charge until it was investigated. The motivations behind this "gag order" (as it was referred to by those who opposed it) are not hard to see. While JAMA has a strong institutional interest in avoiding publications that hide conflicts, it also has an interest in avoiding charges that will do harm whether or not they are proven to be true. Recognizing both the salience problem and the attention-span problem, JAMA sought a way to avoid the bad in a regime of disclosure (misunderstanding) while preserving the good (verifiable conflicts).

The rule was inspired earlier this year by Professor Jonathan Leo of Lincoln Memorial University. At the beginning of the year, he filed a complaint with JAMA about the failure of one researcher to disclose a conflict. JAMA sat on the complaint for five months. In frustration, Leo published his charge in the British Medical Journal. As reported by the The Wall Street Journal, JAMA responded angrily, demanding that he stop his campaign until JAMA’s investigation was complete, and formally requiring anyone making a similar charge to remain silent until JAMA has responded.

But, once the story of JAMA’s effort to silence a critic had been made public, that "gag rule" was of course doomed. After an internal review, the journal reversed its policy. Any effort to protect the accused against unjustified criticism was abandoned. Unfair complaints would have to be tolerated--as they would have to be in any similar context. The age of transparency is upon us. The need to protect the whistleblower is unquestionable--driving off even modest efforts to cushion the blows from a mistaken accusation.

 

These troubles with transparency point to a pattern that should be familiar to anyone watching the range of horribles--or blessings, depending upon your perspective--that the Internet is visiting upon us. So, too, does the response. The pattern is familiar. The network disables a certain kind of control. The response of those who benefitted from that control is a frantic effort to restore it. Depending upon your perspective, restoration seems justified or not. But regardless of your perspective, restoration fails. Despite the best efforts of the most powerful, the control--so long as there is "an Internet"--is lost.

 

Consider, for example, the dynamic that is now killing newspapers, or more precisely, the business model for newspapers, caused either by the explosion of more efficient technologies for doing what newspapers used to profit from, or by the inevitable explosion of competition driving papers to make free what they used to charge for. Until quite recently, newspapers were among the most profitable local businesses. As one commentator calculated, average operating revenues even as late as 2000–2007 were 27.3 percent. But a raft of technologies that were seeded about a decade ago are now pushing newspapers over the brink. In 1995, a San Francisco geek named Craig opened a community website where people could list items to sell, for free. With much better coverage, space, and (obviously) price, Craigslist quickly began to dominate newsprint in markets where both went head to head. There was little that the physical paper could do to respond. A formerly lucrative cross-subsidy was gone.

A complementary story could be told without blaming Craig. People buy newspapers for the stories, not for the ink. As innovators on the Internet began offering free access to those stories, the demand for ink-staining versions declined. Why should I buy The New York Times when its content is available for free on its site? And if the content of The New York Times is not free on the site, no problem: I can get (essentially) the same stories elsewhere. Or worse, for local papers: if I can get access to a range of papers at a click (see Google News), why would I buy any one in particular? A business that had relatively little competition because of the costs of local markets now has almost endless competition, driving the price for this freely distributed good (as economists would predict) to zero.

Both dynamics--together they are the consequence of what we might call the "free content movement"--have had a predictable effect. First on the chopping block is investigative journalism, with its risky return, and even when successful, a return not measured in cash. Less than 10 percent of large daily newspapers in America have four investigative journalists or more. More than 40 percent have no investigative journalists at all. One need not hate the Internet to be deeply worried about the repercussions of this development for democracy.

 

Or think about recorded music. Until the late 1990s, the record industry had a happy fate. Every couple of years a new format would best an earlier leader--eight-track beating the LP; cassettes beating the eight-track; CDs beating cassettes. Consumers would then eagerly migrate to the new thing. With that migration, new content would have to be bought. Old content had to be replicated. Music was like old library books that you would have to check out again and again and again--except that this lending was not for free.

Along comes digital technology, and this model of profit was significantly threatened. The nature of digital is perfect copies, freely made. The nature of certain popular technologies--Napster, and then peer-to-peer (p2p) more generally--was to encourage literally millions of people to make literally billions of perfect copies and then share them for free. Such behavior could not help but dampen the demand for some recorded music (even if it spurred the demand for other recorded music--namely, music that wouldn’t have been discovered if the price of admission had been a $20 CD). And it couldn’t help but inspire a richly different "free culture movement." An industry that had become addicted to the blockbuster album was obviously allergic to a technology that threatened this promise of reliable profits.

Both of these developments have inspired Luddite-like responses. There is a regular call to close free access to news on the Web. There are principled objections to Craigslist, even if they are faint and confused. And there are politically well-supported objections to peer-to-peer file-sharing, seeking both laws and technology to kill the p2p "market." In all these cases, the response to the problem is to attack the source of the problem: the freedom secured by the network. In all these cases, the response presumes that we can return to a world where the network did not disable control.

But the network is not going away. We are not going to kill the "darknet" (as Microsoft called it in a fantastic paper about the inevitable survival of peer-to-peer technologies). We are not going to regulate access to news, or ads for free futons. We are not going back to the twentieth century. In a decade, a majority of Americans will not even remember what that century was like.

But then what? If we can’t go back, how do we go forward? For each of these problems, there have been solutions proposed that do not depend foolishly upon breaking the network. These solutions may not produce a world as good as the world was before (at least for some). They may not benefit everyone in the same way. But they are solutions that remove an important part of the problem in each case, and restore at least part of the good that is recognized in the past.

With p2p file-sharing, scholars such as William Fisher and Neil Netanel have proposed models of compensation that would achieve the objectives of copyright without trying to control the distribution of content. Filesharing would be legal, at least in some contexts. But then artists would be compensated for the harm caused by this file-sharing through systems that track the popularity of downloads. Britney Spears would get more money than Lyle Lovett (the mysteries of taste!), with revenue coming either from a tax or from fees paid by key nodes in the network. The Electronic Frontier Foundation has a related proposal for a "voluntary collective license": pay a certain flat amount, and you secure an immunity from prosecution for non-commercial file-sharing. The Green Party in Germany has taken this idea one step further, and proposed a "cultural flat rate" that would apply to culture on the network generally, securing compensation for the artists and immunity from prosecution for the kids. All these changes would render legal the behavior your kids are engaging in right now (trust me), and assure some sort of livelihood for artists.

With journalism, the answers are less clear. There is growing legislative support for allowing newspapers to become (intentional) nonprofits, thus enabling tax-deductible donations to support their mission, and allowing the mission to be more securely set, free of the demands of stockholders or commercial return. Likewise, there has been growing support for nonprofits such as ProPublica, which fund investigative journalism that is then released freely to partner newspapers. As with music, the aim in both cases is to find a different way to fund the creation of what economists call "public goods." And as economists will tell you, no way is perfect. Each has its benefits and its flaws. But both alternatives have the singular virtue of accepting the architecture of the Internet as it is, and working out how best to provide the goods we need given this architecture.

 

So is there an analogous solution to the problems created by transparency? Is there an answer that accepts that transparency is here to stay--indeed, that it will become ever more lasting and ever more clear--but that avoids the harms that transparency creates?

In the context of public health, where doctors are forced to reveal any connection with industry, I cannot begin to imagine what that solution would look like. The citizenry is not remotely willing to fund publicly the research necessary to support drug development today. Close to 70 percent of the money for clinical drug trials in the United States comes from private industry. Private funding here seems inevitable--and with it, the potential for perceived conflicts. That potential will inevitably require more and more transparency about who got what from whom.

In the context of public officials, however, the solutions are obvious, and old, and eminently tractable. If the problem with transparency is what might be called its structural insinuations--its constant suggestions of a sin that is present sometimes but not always--then the obvious solution is to eliminate those insinuations and those suggestions. A system of publicly funded elections would make it impossible to suggest that the reason some member of Congress voted the way he voted was because of money. Perhaps it was because he was stupid. Perhaps it was because he was liberal, or conservative. Perhaps it was because he failed to pay attention to the issues at stake. Whatever the reason, each of these reasons is democracy-enhancing. They give the democrat a reason to get involved, if only to throw the bum out. And by removing what is understood to be an irrelevant factor--money--the desire to get involved is not stanched by the cynicism that stifles so much in the current system.

The current version of this very old idea--Theodore Roosevelt gave us its first prominent play in 1907--is called the Fair Elections Now Act. Sponsored in the Senate by Dick Durbin and Arlen Specter, and in the House by John Larson and Walter Jones, the bill would grant to qualifying candidates a certain grubstake to fund their campaigns. In addition to that initial stake, candidates could raise as much money as they want, with contributions capped at $100 per citizen per cycle. Thus Roosevelt meets Obama, with a proposal that marries the ideal of neutralizing any appearance of improper influence with the energy that small contributions add to any campaign.

The only significant flaw in this bill, at least in my view, is its title. Waving the "fairness flag" in front of the Supreme Court is the proverbial red flag in front of the bull. What possible reason is there, the Court will ask, for allowing Congress to regulate "fairness"--at least where "fairness" seems so clearly to benefit one side in most political debates? And the concern is a good one. There is too much incumbency protection built into our politics already. It would be much worse if the state were putting a thumb on one side of a political scale.

But the objective of these proposals is not, or should not be, fairness. The objective should be trustworthiness. The problem that these bills address is that we have a Congress that nobody trusts--a Congress that, in the opinion of the vast majority of the American people, sells its results to the highest bidder. The aim of these proposals should be to change that perception by establishing a system in which no one could believe that money was buying results. In this way we can eliminate the possibility of influence that nourishes the cynicism that is anyway inevitable when technology makes it so simple to imply an endless list of influence.

As with ProPublica or nonprofit newspapers, or a "cultural flat-rate," or a compulsory license to compensate for file-sharing, proposals for public funding can thus be understood as a response to an unavoidable pathology of the technology--its pathological transparency--that increasingly rules our lives and our institutions. Without this response--with the ideal of naked transparency alone--our democracy, like the music industry and print journalism generally, is doomed. The Web will show us every possible influence. The most cynical will be the most salient. Limited attention span will assure that the most salient is the most stable. Unwarranted conclusions will be drawn, careers will be destroyed, alienation will grow. No doubt we will rally to the periodic romantic promising change (such as Barack Obama), but nothing will change. D.C. will become as D.C. is becoming: a place filled with souls animated by--as Robert Kaiser put it recently in his fine book So Damn Much Money--a "familiar American yearning: to get rich."

But if the transparency movement could be tied to this movement for reform--if every step for more transparency were attended by a reform that would disabuse us of the illusion that this technology is just a big simple blessing, and set out to make transparency both good and harmless--then its consequence could be salutary and constructive. When transparency and democracy are considered in this way, we may even permit ourselves to imagine a way out of this cycle of cynicism.

 

Reformers rarely feel responsible for the bad that their fantastic new reform effects. Their focus is always on the good. The bad is someone else’s problem. It may well be asking too much to imagine more than this. But as we see the consequences of changes that many of us view as good, we might wonder whether more good might have been done had more responsibility been in the mix. The music industry was never going to like the Internet, but its war against the technology might well have been less hysterical and self-defeating if better and more balanced alternatives had been pressed from the beginning. No one can dislike Craigslist (or Craig), but we all would have benefited from a clearer recognition of what was about to be lost. Internet triumphalism is not a public good.

Likewise with transparency. There is no questioning the good that transparency creates in a wide range of contexts, government especially. But we should also recognize that the collateral consequence of that good need not itself be good. And if that collateral bad is busy certifying to the American public what it thinks it already knows, we should think carefully about how to avoid it. Sunlight may well be a great disinfectant. But as anyone who has ever waded through a swamp knows, it has other effects as well.

Lawrence Lessig is professor of law and director of the Edmond J. Safra Center for Ethics at Harvard Law School, and the author most recently of Remix: Making Art and Commerce Thrive in the Hybrid Economy (Penguin). He is on the advisory board of the Sunlight Foundation and on the board of Maplight.org

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