“I’m proud to present the third and final part in the series of research projects from the Sunlight Foundation spring semester interns. This post is by Andrew Berger, he spent time looking into the past and following Louis Brandeis career in transparency and how it relates to the current movement.” – Nisha Thompson

By Sunlight Foundation Intern, Andrew Berger

I never really feel like I understand something unless I have a sense of its history. (I once wanted to become a historian; I guess that's just how I think.) So it's no surprise that during my internship here at Sunlight, I found myself wanting to know more about the history of transparency. For my research, I decided to focus on efforts to increase transparency in the United States during the early twentieth century, using Louis Brandeis as a guide.

Brandeis made his famous statement that "sunlight is said to be the best of disinfectants" in a 1913 Harper's Weekly article, entitled "What Publicity Can Do." But it was an image that had been in his mind for decades. Twenty years earlier, in a letter to his fiance, Brandeis had expressed an interest in writing a "a sort of companion piece" to his influential article on "The Right to Privacy," but this time he would focus on "The Duty of Publicity." He had been thinking, he wrote, "about the wickedness of people shielding wrongdoers & passing them off (or at least allowing them to pass themselves off) as honest men." He then proposed a remedy:

If the broad light of day could be let in upon men’s actions, it would purify them as the sun disinfects.

Interestingly, at that time the word "publicity" referred both to something like what we think of as "public relations" as well to the practice of making information widely available to the public (Stoker and Rawlins, 2005). That latter definition sounds a lot like what we now mean by transparency.

Curious to know more about Brandeis' early views, and disappointed to learn that he never wrote the article on publicity he suggested in the letter, I went looking for detailed statements he might have made on transparency from earlier in his career. I eventually found transcripts of several speeches he gave on municipal reform and good government in 1903 and 1904, the longest of which I discuss below. This speech is not just a window onto the past, but a way to see what has and what has not changed in the movement for transparency: a way to see both how far we have come and how far we still have to go.

From Brandeis' Boston to today

Brandeis graduated from Harvard Law School in 1878 and for the first decade or so of his legal career, he does not seem to have been very heavily involved in public affairs. But in the 1890s, he began to take on cases that brought him into closer contact with the political system. One important case dealt with the reform of the Massachusetts state liquor laws, which followed the revelation that the liquor lobby was bribing state legislators. In another case, he represented a group of merchants--some of whom were already his clients from other contexts--who opposed an attempt by the Boston subway company to gain a monopoly over the city's mass transportation system, which at the time was not entirely in public hands. He was largely successful in both cases (Strum, 17-19).

In addition to his legal work, Brandeis gave speeches on politics before business, reform, and good government groups. His April 1903 address before Boston’s Unitarian Club made several of the local papers. The Boston Herald considered the event important enough for a front page headline: "USE SEARCHLIGHT ON THE CITY HALL: Brandeis Says It Is High Time to Delve Into Corruption in City Affairs." The article included a transcript of Brandeis' remarks.

Here, in the course of highlighting a number of questionable expenditures the city had made in recent years, Brandeis hit on some key topics that remain at the forefront of transparency efforts today: the importance of collecting and disseminating government data, the need for open meetings, and the role of nongovernmental groups in making government more transparent.

Taking them in order, and with an eye to modern-day parallels:

• Data collection and dissemination

Many suspected that some significant number of city employees had patronage jobs that required little work. To expose these cases, Brandeis and other reformers supported the publication of the city payroll. Brandeis also praised the new mayoral administration for issuing public reports about the city’s spending under previous administrations. But because the city’s bookkeeping records were such a mess, the value of the reports was limited: it was very difficult to compare Boston’s spending with that of other cities, or even with its own spending in earlier years. To Brandeis, this illustrated the importance of getting cities to adopt uniform accounting rules.

Today, transparency has moved beyond a focus on accounting standards and printed reports, which have become largely routine, but the principles remain quite similar. Only now the push is for online access to data and uniform data standards. Many states and other public entities have begun putting spending information online in recent years, but they have not always used the same reporting standards. These efforts are encouraging, but the adoption of agreed upon standards would make it possible to run a wider range of analyses on the data, especially across different states.

• Open and closed meetings

While the board of aldermen did meet in public session, it was only to receive business. Then the aldermen would carry out their discussions and vote as the "committee on public improvements"--which was essentially the same group of men, only meeting in closed session. This "desire for secrecy," said Brandeis, was "not surprising" when you considered the "quality of the some of the acts" approved by the board.

Things have improved considerably in this area since Brandeis’ day. Many states have open meeting laws that require justifications to be given for closed meetings. Transparency efforts now focus more on getting the content of those meetings – agendas, minutes, even live or archived audio or video – online.

• The role of nongovernmental groups

Finally, Brandeis declared that government action, no matter how dedicated, would never be enough to keep the public sufficiently informed: "the individual citizen must in some way collect and spread the information." This meant not so much individuals acting alone, but nongovernmental organizations such as civic groups who provided information to voters or, even more importantly, the press. Speaking at a time when the only way to reach large audiences on a regular basis was through print, Brandeis saw the press as potentially "the greatest agency of good government"--but only "if the people are sufficiently interested to desire it."

This raises an important question: how do the people become "sufficiently interested"? Brandeis seems to have believed in a symbiotic relationship between an informed and an engaged citizenry. The people had not yet joined the fight against corruption because they did not yet know enough about the situation. They were "ignorant of the facts--ignorant of the specific acts of misgovernment--ignorant of the low character or quality of many of the men by whom in public life they are misrepresented."

No one, he said, could "look into the details of our city's administration and be indifferent." Such information would naturally lead to indignation, and out of that indignation would come a movement for "remedial action." Publicity would overcome apathy.

The printed press, even in its current troubled state, continues to play an important role in generating interest in government and misgovernment, but now it has been joined by outside groups producing their own research and analyses. While such groups have existed for decades, the Internet has made it possible for them to reach large audiences directly – and if this audience includes reporters, and those reporters then reach even more people, so much the better.

The Web has also made possible types of information sharing and citizen engagement that did not exist even a few years ago, much less in Brandeis' time. It has become easier for a person to turn from passive reader to active participant in politics. But it remains just as true today that a person has to become “sufficiently interested” in order to do so. To an extent, techniques like data visualizations, which really seem to have taken off in recent years, are important not just for the specific content they present, but for their potential to drive interest in government information. They are additional strategies--to go along with more traditional forms of research and reporting and advocacy--for using transparency to overcome apathy.

I would like to have a tidy conclusion here, but to be honest, I don’t think there is one. It would be nice if this were one of those histories where people in the past faced a problem--in this case, making government more transparent--and now, in the present, we have largely solved that problem. But as I hope I’ve made clear, while the details have changed, the principles, and many of the challenges, remain. In fact, as I carried out my research, I was often struck by how familiar many of the issues were, just on a different scale from today’s.

Brandeis makes a convenient guide into this past era, but he was not alone. Woodrow Wilson, for example, who would later appoint Brandeis to the Supreme Court in 1916, wrote about the need to shed light on the government all the way back in 1884. And by the 1890s several states were already experimenting with disclosure rules in order to combat corruption in campaign finance. We may not have much to learn in the way of specifics from these past transparency advocates, but we can at least gain perspective, and sometimes even inspiration, from their efforts.

Letter to the Editor at the New York Times this morning. It's worth posting in full.

Published: January 28, 2009 To the Editor: President Obama's executive order of Jan. 21, "Ethics Commitments by Executive Branch Personnel," is well intentioned but naïve and essentially unenforceable. The lobbying ban on "particular matters" perpetuates the same loophole that has made the federal "revolving door" criminal statute a dead letter since Congress first passed it decades ago. For these ethics restrictions to work, there must be an open, publicly accessible reporting system where every executive branch appointee records meetings with registered lobbyists during and after working hours, both inside and outside the office. I served as court-appointed independent counsel in the investigation and prosecution of Michael K. Deaver after he left the Reagan White House to open his own lobbying firm. Mr. Deaver made millions from lobbying his former colleagues. Our legal staff found we could prosecute him only for lying to the grand jury about his lobbying activities. He easily evaded the revolving door criminal statute by using assistants to make direct contacts with executive branch officials, or simply by discussing a client's objectives in generalities instead of "particular" matters. Through traditional law enforcement techniques and a lot of hard work interviewing witnesses, he was convicted of perjury and was fined and sentenced to community service. If the president is really serious about ending closed-door lobbying of his administration, his staff should study our report, "Executive Branch Lobbying," published by the Government Printing Office in 1989, to find out how to stop these abuses. It can still be done by executive order, but transparency is the key. As Justice Louis D. Brandeis said, an electric light is the best policeman. Whitney North Seymour Jr. New York, Jan. 25, 2009

Since the Memorandum on FOIA and Government Transparency are not yet posted at WhiteHouse.gov, I thought I would post them both on the Sunlight's blog. As you can imagine, we love the use of the Justice Brandeis' quote in the FOIA Memoradum.

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES SUBJECT: Freedom of Information Act A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, "sunlight is said to be the best of disinfectants." In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike. The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public. All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA. The presumption of disclosure also means that agencies should take affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government. Disclosure should be timely. I direct the Attorney General to issue new guidelines governing the FOIA to the heads of executive departments and agencies, reaffirming the commitment to accountability and transparency, and to publish such guidelines in the Federal Register. In doing so, the Attorney General should review FOIA reports produced by the agencies under Executive Order 13392 of December 14, 2005. I also direct the Director of the Office of Management and Budget to update guidance to the agencies to increase and improve information dissemination to the public, including through the use of new technologies, and to publish such guidance in the Federal Register. This memorandum does not create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. The Director of the Office of Management and Budget is hereby authorized and directed to publish this memorandum in the Federal Register. BARACK OBAMA