March 04, 2021 HUMAN RIGHTS

Rebuilding Trust through Government Transparency and Accountability

by Frank D. LoMonte

It is perhaps fitting that a presidential term remarkable for its norm-shattering defiance of ethics and accountability ended this way: with the White House withholding the daily appointment calendar that has been made public for decades, replacing it with a perfunctory statement that “President Trump will work from early in the morning until late in the evening. He will make many calls and have many meetings.”

The message was unmistakably clear: The president does not owe the public an explanation of how he uses the power of his office.

Donald Trump was not, by any means, America’s first secretive president. Government transparency began a precipitous decline after the September 11, 2001, terrorist attacks, prompting then Attorney General John Ashcroft to advise federal agencies to aggressively apply exceptions to the Freedom of Information Act, erring on the side of nondisclosure with the Justice Department’s full support.

Still, the Trump administration wore its contempt for transparency with special pride, signaling with candidate Trump’s refusal to provide complete financial disclosures that this would be a White House unconcerned with appearances of impropriety. Trump, it seems, could have shredded his tax returns on Fifth Avenue without losing any voters.

The Biden administration has an opportunity, and a duty, to commit to a government where lying and deceit carry real consequences.

The Biden administration has an opportunity, and a duty, to commit to a government where lying and deceit carry real consequences.

MANNY BECERRA ON UNSPLASH

It is no coincidence that, as government becomes more assertively secretive, public confidence erodes. In April 2019, the Pew Research Center sounded the alarm that distrust of government was at “historic” levels, surpassing even the Watergate era: “Only 17% of Americans today say they can trust the government in Washington to do what is right ‘just about always’ (3%) or ‘most of the time’ (14%).”

The Trump White House overtly sought to undermine any independent fact-finding entity that could challenge the validity of dubious presidential claims. (As campaign strategist Steve Bannon colorfully described his technique: “The real opposition is the media. And the way to deal with them is to flood the zone with shit.”) Besides delegitimizing fact-based news coverage, the White House fired the inspectors general of five cabinet-level agencies in a spring 2020 purge, withheld witnesses from congressional oversight committees in defiance of subpoenas, and muzzled independent-minded journalists at the federally funded Voice of America.

The Biden administration has an opportunity, and a duty, to commit to a government where lying and deceit carry real consequences. That this is a disputed proposition shows how enormous the rebuilding task will be—and how urgent.

“It’s the Honesty, Stupid”

With the year 2020 blessedly a matter for the history books, historians will recall three societal crises—the COVID-19 pandemic, violent police misconduct, and the delegitimization of the presidential election—that converge at a single point: the life-and-death importance of access to truthful information.

In the absence of trustworthy information, antigovernment conspiracy theories breed and flourish. It is possible for people to be duped into believing that a “deep state” cabal is conspiring to transform America into a hellscape of pedophilia, cannibalism, and taxpayer-subsidized health care because the processes of policymaking are so studiously opaque.

COVID-19 laid bare the fragility of America’s information ecosystem. The Trump administration delayed access to essential public-health data by ordering hospitals to bypass the Centers for Disease Control and Prevention and instead report coronavirus trends directly to political appointees at the Department of Health and Human Services (HHS). (And HHS made matters worse with onerous directives restricting photojournalists’ access to health care facilities, inhibiting truthful reporting that could have debunked viral falsehoods about purportedly empty COVID-19 units.)

Government secrecy is rooted in two civically corrosive notions. The first is that the public is too unsophisticated and overreaction-prone to be trusted with complete information, so the government must filter it. The second is that the government can legitimately use its power over information to protect the reputation of government entities and foster a favorable public-relations image (what we recognize as “propaganda” when it is done elsewhere). These are illegitimate ideas that a Biden presidency must reject.

Four Concrete Steps Forward

Trust takes a lifetime to build and a moment to shatter. It may be tempting for elected officials concerned about the “damaged brand” of the American government to crack down on the free flow of information in the name of “P.R. damage control.” That would be exactly the wrong instinct.

People do not need to be convinced that the government is infallible—that everything is, in Trumpian puffery, the biggest and best ever. They need to be convinced that the process by which government decisions are reached is fair, inclusive, and legitimate, even when it produces results they dislike. Perhaps counterintuitively, that means inviting the public to see the messy underside of governance—the give and take of opposing viewpoints, the corrected miscalculations and missteps.

A few concrete reforms well within the Biden administration’s ability to achieve would produce lasting legitimacy benefits:

Liberate Government Experts to Speak for Themselves

In its 1995 opinion in the National Treasury Employees Union case, the Supreme Court held that gagging federal employees from speaking publicly about their work violates the First Amendment. Yet, that hasn’t stopped agencies at all levels of government from enforcing workplace rules that require employees to filter their communications with the press and public through a public-relations gatekeeper. This isn’t just illegal—it’s bad public policy that denies the public the authoritative voices of people with firsthand subject-matter expertise.

Journalists repeatedly complained that the Obama administration unduly restricted access to interviews with federal employees. But the vise grip tightened further under the Trump administration, which in its first month in office directed federal scientists to refrain from answering news media inquiries. In a recent reform agenda directed to the Biden administration, Columbia University’s Knight First Amendment Institute listed addressing the problem of onerous workplace “gag rules” at the top of the priority list: “Some policies explicitly prohibit employees from speaking on matters of public concern even in their personal capacities. These policies violate the free speech rights of the employees and deprive the public of access to critical information and insights.”

Commit to an “Open Data” Mentality

A 2018 statute, the Foundations for Evidence-Based Policymaking Act (P.L. 115-435), was intended to modernize and streamline the way federal agencies manage the vast quantities of data they gather that might be of public interest. Among other provisions, it requires agencies to publish the data on which they base decisions in a machine-readable format. But an October 2020 report from the Government Accountability Office found that, two years after its enactment, the statute was producing minimal results, in part because of foot dragging at the Office of Management and Budget, which failed to issue statutorily required guidance for agencies to implement the act.

In fact, access to data has been moving in the opposite direction. An October 2020 Huffington Post investigation found a coordinated effort across executive agencies to conceal or destroy data that could be used to question Trump administration decisions. A series published by HuffPost’s digital newsmagazine Highline (“Data Disappeared”) documented the toll of a government-wide “war on data” affecting environmental regulation, workplace safety, the coronavirus response, and more. “Over nearly four years, his administration has defunded, buried and constrained dozens of federal research and data collection projects across multiple agencies and spheres of policy: environment, agriculture, labor, health, immigration, energy, the census,” reporter Samanth Subramanian wrote. “We are witnessing a widespread act of erasure.”

 The Biden administration has a duty to gather and share information enabling outside experts and the general public to independently evaluate the merits of federal decisions—even if the facts do not always align with the administration’s policy judgments. This is not just the law; it’s a matter of responsible stewardship of data as an irreplaceable resource for future generations of researchers and historians.

Support and Enforce Meaningful Penalties for Official Misconduct

Nothing corrodes public trust more surely than the belief that powerful people get to play by their own set of more-forgiving rules. The nonprofit Citizens for Responsibility and Ethics in Washington counted 60 separate violations of the federal Hatch Act, which bars the use of federal resources and paid time to advance partisan political ends, committed by 16 Trump administration officials in the run-up to the November 2020 election—all of which have gone unpunished. Federal resources were unabashedly used for campaign purposes, including the unprecedented decision to stage the closing night of the Republican National Convention on the White House lawn. Fortifying enforcement of the Hatch Act—which carries a (seldom imposed) $1,000 civil fine in its feeble arsenal of pop-gun enforcement weapons—should be a legislative priority.

Adherence to basic democratic norms starts at the top. We should never again have to wonder whether a future president is ethically compromised by overseas business entanglements or debts to influential lenders. The tax code should be amended to empower the Internal Revenue Service to release the tax returns of candidates who qualify for the presidential ballot, ending the failed “self-disclosure honor system.”

Reinvigorate the Federal Freedom of Information Act

The public’s right of access to information from government agencies depends on a spottily enforced 1974 statute, the Freedom of Information Act (FOIA), that is showing its age and overdue for a makeover.

FOIA sets an expectation that, when a federal agency memorializes information in any medium, that record should be made available to the public to inspect, copy, and use. But any regular user of FOIA knows that it seldom works as advertised: Months-long waits are routine, and if documents are produced at all, they are often riddled with dubious redactions on the basis of unduly broad statutory exemptions.

The worst of them all, Exemption 5 (5 U.S.C. § 552(b)(5)), exempts internal memos and letters generated within a single agency or exchanged between agencies. The Supreme Court interprets Exemption 5 to allow agencies to conceal “deliberations comprising part of a process by which governmental decisions and policies are formulated.”

The notion that the public has no right to see what went into formulating federal policy is antithetical to the very existence of a freedom of information law. The set of documents that the public most desperately needs to see—the documents shedding light on what (or who) influenced government agencies to take action—is the set of documents Exemption 5 makes inaccessible.

One of many lessons from the last four years is that the public does have an overriding interest in seeing proposals that are under consideration but not yet finalized, even proposals that ultimately are rejected. The disclosure that, during the ebbing hours of the Trump presidency, some high-ranking Justice Department officials seriously discussed bringing known false claims of election fraud before the Georgia courts is manifestly the public’s concern, even if the strategy was abandoned.

With the stroke of a pen, Biden could instruct executive agencies to cease relying on Exemption 5, while working through Congress to wipe it off the books.

The Challenge Ahead

Candidate Biden ran on a pledge to insulate the Justice Department and other executive agencies against political meddling, to fortify whistleblower protections, and to appoint a Commission on Federal Ethics with subpoena power to toughen enforcement of toothless anticorruption laws. On his first day in office, Biden signed an executive order requiring appointees to pledge to adhere to rigorous ethical standards, including honoring a “cooling-off” period before they can accept lobbying jobs. These are encouraging signs.

It is not enough for President Biden to deliver successful results. He must begin rebuilding the legitimacy of institutions torn down by decades of sustained antigovernment extremist rumor-mongering. The first step in rebuilding trust is, of course, to behave in a way that is worthy of trust. But the first step accomplishes little without the second: To be trusted, the new administration must not merely behave beyond reproach but must invite skeptics to look inside the process of governance to assuage their skepticism. 

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Frank D. LoMonte

Director, Brechner Center for Freedom of Information, University of Florida; Executive Producer, Why Don't We Know

Frank D. LoMonte is director of the Brechner Center for Freedom of Information at the University of Florida and executive producer of the podcast Why Don’t We Know, which explores issues of government secrecy.