POLITICS OCTOBER 16, 2009
Lawrence Lessig's denunciation of runaway transparency is insightful but unduly dour about the potential consequences of the release of accurate information about public officials. It’s also insufficiently appreciative of the potential benefits of its public dissemination.
It is true, as Lessig maintains, that the required release by members of Congress of their daily work schedules may lead to facile and wrongheaded denunciations of entirely proper conduct; that the publicity accorded political contributions may be misleading, since those gifts need not and often do not lead to votes contrary to the actual convictions of leaders; and that these risks are increased by the explosion of new forms of technology that make vast amounts of information available to millions of people that previously would have been enormously difficult to disclose. He is quite right that "people may ignore information, or misunderstand or misuse it."
But this argument surely goes too far. Any criticism voiced about alleged congressional misbehavior may be unjust. Any time a document released under the Freedom of Information Act is said to show widespread congressional transgressions, the criticism may be overstated. Every editorial, duly protected by the First Amendment, that condemns supposed congressional sloth or corruption, may lessen the reputation of Congress, sometimes unfairly. Objecting to the release of information about the functioning of government on the ground that it may be misunderstood or misused recalls the assertion, made eons ago, that public libraries would inflame the masses who were incapable of understanding the materials contained in them.
Lessig's worries about the impact of the release of such information on society are overstated. Consider one example he cites. First Lady Hillary Clinton, he recounts, initially opposed legislation supported by the credit card industry yet later voted as a senator in favor of such legislation. In the interim, she had received $140,000 in contributions from credit card companies. Did the receipt of the contributions lead her to change her position? Or did she do so on the merits, because she had changed her mind? Or, perhaps, because she was a Senator from New York, home of the financial services industry? Lessig rightly concludes that her decision could have been rooted in any of a number of causes, but the public, he says, focused on only one. Given the large political contribution, the consensus was that the real reason was the money. Because of the receipt and size of the contributions, he writes sardonically, "Everyone now 'knows' just why she switched, don't they?"
But they don't and didn't. There was no great public outcry over Senator Clinton's vote or any rush to judgment that she had sold out to those who had contributed to her campaign. It was not a serious issue when it occurred and was not an issue at all when she ran for the presidency. But it could have been, and any suggestion implicit in Lessig's piece that society would have been better served if the amount and identity of Senator Clinton's contributors had remained undisclosed is one that I find it difficult to believe that he would be prepared to defend in so many words.
What he does advocate unequivocally is a radical change in campaign finance laws, which would combine an element of public financing with strict limits ($100 per person per election cycle) on contributions. I happen to find the public financing option an attractive one, but only as an option. More significantly, contributions to federal candidates have long been held to "implicate fundamental First Amendment interests" of both political expression and association. While they are already strictly limited by law, the notion of limiting contributions to anything like $100 per election cycle is a constitutional non-starter. Just three years ago, the Supreme Court held unconstitutional contribution limits of $200 per election per gubernatorial candidate in Vermont, concluding that such small amounts "fall outside tolerable First Amendment limits." It is hardly realistic to conclude that even more restrictive limitations for congressional elections could come close to passing constitutional muster. Or, given the significant constitutional underpinnings of the right to contribute to campaigns, that it should.
Notwithstanding my disagreements with some of Lessig's conclusions, I agree that reformers too often err by overlooking the harm that their efforts may cause. I include among them supporters of campaign finance limitations who minimize or totally ignore the harm caused when speech is stifled in the name of reform.
Floyd Abrams practices law in New York and is the author of Speaking Freely: Trials of the First Amendment.
Part I: Why more transparency actually makes politicians less likely to act in the public interest, by Tim Wu
Part II: More scrutiny of government is the solution, not the problem, by Ellen Miller and Michael Klein
Part III: How the courts could strike a balance between the needs for transparency and privacy, by Jeffrey Rosen
Part IV: Greater transparency will build-not diminish-the public's trust, by David Weinberger
Part V: Why Lessig’s fears about transparency are overblown.