Transparency and Tyranny of the Majority

“Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind… It is plain that anonymity has sometimes been assumed for the most constructive purposes.”

-- Talley v. California, 362 U.S. 60 (1960)

In January 1776, a short pamphlet titled Common Sense hit the streets of Boston and other cities and towns throughout the New World, calling on people to take up arms against Britain in a fight for independence. Within months, it became one of the most widely read books in the colonies.

Given that its very content was treasonous, the pamphlet was published anonymously, with knowledge of its true author (the patriot Thomas Paine) remaining a secret into the spring of the year of Independence.

This week, NYC Councilmember Ben Kallos (D-East Side/Roosevelt Island) introduced a bill to create a centralized, public, online freedom of information law (FOIL) system in the City of New York. As reported in the Gotham Gazette, “Requests would be entered electronically and anyone would be able to see who is requesting what information from which agency.” Other cities—from Oakland to Chicago—already make names of FOIL requesters public. And indeed, in New York State, FOIL requests themselves are public documents subject to disclosure without redaction.

Nevertheless, Kallos’ bill is likely to raise questions about the intersection between government transparency and personal privacy. When should citizens be forced to disclose their communications with government? Are there circumstances in which anonymity is needed to avoid unwarranted harassment?

These questions continue to pose challenges, not just with regard to FOIL, but also in the context of campaign finance disclosure—as discussed by Globe columnist Scot Lehigh last week—and lobbying disclosure.

Indeed, New York’s Joint Commission on Public Ethics (JCOPE), which under a 2011 law is responsible for determining whether a particular advocacy organization should receive an exemption from disclosure if their donors faced “harm, threats, harassment, or reprisals” because of their support, has had to grapple with the implications of a subjective regime of anonymity.

Many groups across the political spectrum (from abortion rights groups to the conservative New Yorkers for Constitutional Freedoms) have sought exemptions, including the New York Civil Liberties Union, which is typically on the side of transparency (disclosure: NYCLU is a former employer).

While you could be forgiven for thinking that these groups are simply trying to protect their donor base, regardless of the actual threat posed, there are very real reasons to worry about the effects that full and complete disclosure of this kind would have on speech in America.

More than 50 years ago, the Supreme Court first discussed the importance of anonymous speech in Talley v. California, 362 U.S. 60 (1960), which struck down a Los Angeles ordinance forbidding the distribution of literature without the name and address of the individual(s) who prepared/distributed it. The Court opinion was framed by two major goals—to prevent retaliation against unpopular views and to encourage free and open dialogue. 

More recently, in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), the Court reiterated the strong interest in anonymous speech:

Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical minority views…Anonymity is a shield from the tyranny of the majority… It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation…at the hand of an intolerant society.

We may well believe that there is no good reason for corporations or deep-pocketed donors to be able to “hide in the shadows” or no good reason why an individual’s request of their government should be protected from public scrutiny, but America has a strong tradition of supporting anonymous speech on matters of public controversy.

As we continue the effort to improve the free flow of information and respond to the flood of money in politics unleashed by Citizens United and McCutcheon, we must not allow our desire to strengthen our democracy to undermine this essential bulwark of free and robust speech.

True Transparency in Gov’t: A “Common Sense” Approach

“I know it when I see it…”

-- Potter Stewart, Associate Justice of the Supreme Court

Jacobellis v. Ohio, 378 U.S. 184 (1964) (concurring)

Last year, in a dispute surrounding emails allegedly sent by then-New York Attorney General Eliot Spitzer concerning an investigation of officials at AIG, New York Supreme Court Justice Christopher Cahill ruled that that the use of personal email accounts by government officials for agency-related business cannot be used as a shield against disclosure under the State’s Freedom of Information Law (FOIL).

“Pursuant to judicial precedent and the underpinnings of FOIL, the [Office of the Attorney General] has both the responsibility and the obligation to gain access to the private email account of former Attorney General Spitzer to determine whether the documents contained therein should be disclosed to petitioner in accordance with its FOIL request.” Smith v. N.Y. State Office of the AG, 2012 N.Y. Misc. LEXIS 4166 (Sup. Ct. Albany Cty. 2012).

The case continues to wind its way through New York’s courts. Just last week, the New York Law Journal reported that the State continues to argue that “FOIL does not compel disclosure of records that are not in the possession or control of the state at the time the request is made.”

Spitzer isn’t the only elected official in New York who has sought an end-around FOIL. Governor Andrew Cuomo (in)famously uses BlackBerry PIN messages that are not retained by provider Research in Motion and do not leave a paper trail.

Former Mayor Michael Bloomberg used “Bloomberg.net” email addresses with his top officials, siphoning public business off of “official” email and on to private servers that are either beyond the reach of FOIL or, at the very least, extremely difficult for public agencies to track down.

In 2002, Former Mayor Rudolph Giuliani sent his official papers to a nonprofit he controlled instead of transferring custody directly to the city’s Municipal Archives.

All of this has taken place despite the fact that New York’s Committee on Open Government (COOG) has issued advisory opinions declaring that private communications, when used to contract public business, are subject to FOIL. “[E]mail kept, transmitted or received by a town official in relation to the performance of his or her duties is subject to the Freedom of Information Law, even if the official ‘uses his private email address’ and his own computer.”

Furthermore, it is curious the lengths elected officials go to avoid FOIL given that FOIL specifically provides an exception for “inter-agency and intra-agency” deliberative materials (see N.Y. Pub. Off. Law Sec. 87(2)(g)) and courts routinely uphold the withholding of material about press strategy and other potentially sensitive political decision-making.

So what’s a good government advocate for transparency to do? How do we determine what is a problematic end around FOIL vs. what is a routine practice essential to the open and frank deliberation that any political office must necessarily engage in?

The Embodiment of Government Secrecy.
CC License: Flickr user "Raoul Pop"

First, we can acknowledge how technology has far outstripped FOIL (which was initially passed in the wake of Watergate, in 1976) and that new regulations and penalties may need to be devised to increase the potential cost of moving governmental communications “off book.” For instance, there may well be no reason why official communications should occur outside of official channels that are ultimately within the possession of a given government entity. If that is indeed the case, perhaps penalties should attach to the use of private communications for government work, regardless of whether the private email was used in an effort to evade FOIL.

More importantly, I think we need to apply a little dose of common sense—the type that Justice Stewart was referencing what he penned his famous line about knowing pornography when he sees it, or that the Fourth Circuit Court of Appeals discussed in South Carolina State Ports Auth. v. FMC, 243 F.3d 165, 174 (4th Cir. 2001) (determining that an adjudication “walks, talks, and squawks very much like a lawsuit”).

That common sense approach would look at the subjective motivation of the communication in question. For instance, was the use of private email deliberately employed in an effort to avoid FOIL? After all, if it looks like an end around FOIL, it’s probably an end around FOIL.

The New York Post editorial board recently stated, “If politicians can escape scrutiny simply by doing their work via private e-mails, we lose all hope for government accountability and transparency.” I agree and I hope that New York’s courts rule in favor of complete disclosure of public work, whether on government servers or private email.

However, regardless of how the issue plays out in the courts, citizens should demand that elected officials clearly and transparently share their disclosure policy—both what they will affirmatively share (and in what format/timeframe) and what they will withhold so that voters can hold their leaders accountable for valuing true transparency.

What We Really Mean When We Seek Consistency in Politics

“A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.”

-- Ralph Waldo Emerson, Self-Reliance, 1841

In Winston Churchill’s seminal essay, “Consistency in Politics,” the then-Chancellor of the Exchequer wrote at length about the need for consistency in politics—not a blind adherence to a consistent ideology, but rather a more principled consistency of purpose.

A Statesman in contact with the moving current of events and anxious to keep the ship on an even keel and steer a steady course may lean all his weight now on one side and now on the other. His arguments in each case when contrasted can be shown to be not only very different in character, but contradictory in spirit and opposite in direction: yet his object will throughout have remained the same. His resolves, his wishes, his outlook may have been unchanged; his methods may be verbally irreconcilable. We cannot call this inconsistency. In fact it may be claimed to be the truest consistency. The only way a man can remain consistent amid changing circumstances is to change with them while preserving the same dominating purpose.

Indeed, stubborn obedience to a particular belief is not what we should seek out in any politician—which is why the barbs of “flip flopper” are always so inane (see image from the defunct blog www.sacredcowburgers.com). Sure, a politician who changes her mind solely on account of public opinion and not based on a principled examination of the facts at hand leaves much to be desired. 

However, the very fact that a leader is able to admit—to herself and the public—that her initial belief was in err is a sign of maturity, confidence, and humility—the very characteristics we should seek out in leaders. That’s the difference between a “foolish consistency”, in Emerson’s words, and an understanding that a consistent search for truth and justice (one of our core “First Principles”) necessarily involves changing one’s views over time.

Nevertheless, during a political campaign, it is important for voters to evaluate how consistent candidates are in their messaging. Voters should be extremely suspicious of a candidate who says one thing to one interest group and another thing to the opposing group in a cynical effort to curry favor with all people on all issues.

That’s why the issue of transparency surrounding candidate questionnaires issued by unions, advocacy organizations, and business groups in the ongoing Massachusetts gubernatorial race is so important. As highlighted by Boston Globe columnist Scot Lehigh, several candidates, including Juliette Kayyem (D) and Charles Baker (R), have agreed to make all of their questionnaires available to the public. Others, including Treasurer Steve Grossman (D), continue to maintain confidentiality of questionnaires when asked to do so by advocacy organizations.

The position of Kayyem and Baker is clearly the right one, as sunlight—that ever-powerful disinfectant—not only provides the public with additional information about where the candidates stand, but also creates a significant incentive for candidates to be consistent in their policy positions. (for a counterargument, see the response to Lehigh’s piece by Steven Tolman, President of the AFL-CIO of Massachusetts).

This is not to say that candidates can or should approach every single voter or group in the same way. To the contrary, just as one of the hallmarks of a great teacher is to prepare a lesson in a number of different ways in order to effectively communicate the idea to a diverse group of students (a lesson I learned first-hand from Mom and Dad), so candidates for public office must understand the peculiarities of the audiences they are addressing and adjust their messaging accordingly.

That doesn’t mean that you give a passionate speech against fossil fuels at the Sierra Club, only to turn around and hail the coal industry at the National Mining Association. Rather, it means that, as a leader of a diverse constituency, you meet people where they are and seek to persuade them in a number of different ways.

In the end, the changing of the mind is not something to run from, but rather something to be embraced as an essential part of the human experience. As voters, we must be equally skeptical of candidates who hold fast to preconceived beliefs at all costs and those who seem all too willing to tell a given constituency exactly what they want to hear. Consistency of character, of motive, of mission—these are the hallmarks of great leadership and the characteristics I will be looking for in the race to become the 72^nd Governor of the Commonwealth.

Protecting Taxpayers: Burdens of Proof in Gov't Spending

“Charity is no part of the legislative duty of the government.”

-- Annals of the Third Congress, 794, paraphrasing a speech from James Madison

In the first session of the Third Congress in 1794, the House of Representatives engaged in a robust debate about whether to allocate $15,000 for the assistance of refugees fleeing the Haitian Revolution. The Annals of that debate showcase how James Madison (pictured), the author of the Constitution and one of the most influential voices on the shape of early American government, envisioned how debates over taxpayer-funded projects should transpire.

WWJMD?

Mr. Madison wished to relieve the sufferers, but was afraid of establishing a dangerous precedent, which might hereafter be perverted to the countenance of purposes very different from those of charity. He acknowledged, for his own part, that he could not undertake to lay his finger on that article in the Federal Constitution which granted a right of Congress of expending, on objects of benevolence, the money of their constituents.

Despite Madison’s consternations, Congress allocated the funds and would later go on to make similar appropriations for the citizens of Venezuela ($50,000, 1812). Today, the U.S. government continues to invest taxpayer dollars in foreign aid—a total of roughly $55 billion in FY 2012 (divided roughly 60-40 between economic and military aid, respectively). While this provision is less than 1 percent of the American budget, it consistently draws the ire of the public and politicians on both ends of the political spectrum (though louder opponents tend to be on the Right).

This column is not about the pros and cons of the American foreign aid budget—a topic for another time—but rather, as Madison grappled with 220 years ago, the process by which we make decisions about how to allocate scarce taxpayer dollars and who bears the burden of proof in the case about whether or not to spend.

While I’ve struggled to understand the “First Principles” of spending for years, I began to get some clarity last week during a group budget exercise that I took part in as part of an interview for Community Board 8 on the Upper East Side of Manhattan. For my loyal Bay State readers, community boards are the closest NYC gets to the traditional New England “town meeting.” There are between 3-18 boards in each of the five boroughs, with 50 volunteer members appointed to each board. The boards discuss an array of local issues, from land use/zoning to transportation and education.

The budget exercise involved dividing $100 million of “new” money between 10 priorities. While there was some consensus among the group that transportation, affordable housing, and social assistance (SNAP, etc.) were more important than parks and cultural institutions, there was a significant divide on the question of whether each of the 10 priorities should receive some of the $100 million.

I asked people who wanted to give each priority some funding to explain their position, given that we had agreed that certain priorities were much more important than others. Before answering my question, a fellow interviewee turned the question around on me, asking me to state why each priority should not receive some of the funds.

Luckily for the rest of the group, we did not have time to explore the subject further. However, the exchange felt familiar to me as a lawyer—a profession where questions about the appropriate burden of proof and who bears that burden are commonplace.

I posit the following first principle, in the spirit of Madison’s judgment above: that those who seek to spend taxpayer money (as opposed to not spend taxpayer money) have the burden of proof, and that they must prove that such an expenditure will address a specific, quantifiable problem that government is either uniquely or appropriately suited to combat.

I say this as a Liberal, who believes that government should invest heavily in infrastructure, both physical (roads, rails, dams, electric grids) and human (education, R&D, Social Security, Medicare). But Americans, for better and worse (and I think, generally, for better), have a historic suspicion of government overreach.

Furthermore, we’ve seen time and time again that Americans will actually embrace taxes if they believe that the funds are being spent efficiently on a priority of utmost importance. This is true in red states and blue. Just this year, Jackson, Mississippi voters overwhelmingly approved a 1 percent increase in the sales tax to fund critical infrastructure improvements. Even traditionally-car-crazed Los Angeles recently approved a sales tax increase to fund public transportation.

The bottom line is that officials should have to justify every penny of spending to the public. In so doing, we will not only root out programs that are inefficient and ineffective, we’ll also bring transparency to a budget process that has eroded public confidence in our government, creating a vicious cycle of disinvestment in our public assets.

All Aboard the Pension Transparency Express

“A lack of transparency results in distrust and a deep sense of insecurity.”

-- The Dalai Lama, 2012

Last month, a Blue Ribbon panel commissioned by the Society of Actuaries issued a report on public pension funding in the United States. The results were sobering. The study found that “the financial condition of public pension trusts has weakened during the last 15 years, while its exposure to future financial and other risks has increased.” More troubling, it concluded that public pension funds are opaque, consistently failing to provide adequate data concerning future liabilities.

As a result, one of the major recommendations is to have pension actuaries provide plan boards of trustees and the public with the fair value of pension obligations and estimates of the annual taxpayer contributions needed to cover them.

Pension funds have long resisted such calculations, instead preferring traditional actuarial estimates, which, as the New York Times described, are “smoothed, stretched, averaged, backloaded and otherwise spread across time.” Indeed, the unions whose members benefit from such plans (disclosure: I am a member of one such plan—the New York City Employees Retirement System) fear that such transparency will “be used to cast public pensions in the worst possible light to whip up fervor against them and justify the termination of the plans.”

While that is a reasonable fear given the ubiquity of pension naysayers intent on gutting defined benefit pensions regardless of the consequences, the true risks to the future of such pensions are (a) failing to grapple with gap between assets and liabilities—which some estimates suggest have risen to over $4 trillion from $3.1 trillion in 2009 (Massachusetts has a $63 billion shortfall according to Moody’s (see map), and $89 billion according to State Budget Solutions)—and (b) losing the confidence of the public by failing to be transparent about pension management.

That fate appears to have already befallen the board of the Massachusetts Bay Transportation Authority (MBTA) pension fund, which, because it was organized as a private entity rather than as a public pension fund, is not legally required to hold open board meetings or respond to public requests for information. Thus, despite the fact that taxpayers fund the MBTA trust to the tune of $55 million a year, they are largely left in the dark not only about the trust’s funded ratio (its assets compared to liabilities), but also the investments made by the fund.

Indeed, as the Boston Globe reported, the MBTA fund recently lost $25 million in an investment in a bogus hedge fund—an investment pitched by a former MBTA Executive Director. This relationship was not disclosed publicly by the pension fund.

In politics, when individuals or institutions try to hide the proverbial ball, it only attracts greater scrutiny and more distrust (as the Dalai Lama wisely pointed out). Thus, the way to defend public pension funds or other policies must never be to shy away from their pitfalls, but to confront them head on—and in so doing, treat citizens as adults capable of making rational judgments about the costs and benefits of various government programs.

For far too long, our leaders have blithely asserted that we can have something for nothing. And We the People, to our shame, have not only accepted these offerings, but also demanded them.

In the context of public pensions, instead of sharing in the burden of their cost, states and cities across the country have systematically shifted the burden onto the next generation of government workers, chipping away at our children’s benefits in an effort to save our own. This phenomenon is not limited to pensions. Rather, it infects every part of our public life—from the idea that we can somehow maintain our roads and bridges without raising the gas tax for 20 years to the belief that we can allow a brave minority of our contemporaries to fight and die in foreign wars while giving ourselves huge tax cuts here at home.

Transparency may not solve all these problems. But by shining a light on the true effect of our choices, maybe, just maybe, we’ll look in the mirror and decide we don’t quite like what we see.