Should Our Government Be More Secretive Or More Transparent?

[MARK FENSTER] My name is Mark Fenster and I teach, among other things, contracts and payment systems and statutory interpretation at the Levin College of Law at the University of Florida. My new book is called The Transparency Fix: Secrets, Leaks, and Uncontrollable Government Information. A transparent state is one that is visible to the public. I have always thought that transparency is an important value because it does allow us to hold power in check. The problem is that a transparent state is also one that has a more difficult time functioning, so we inevitably have to balance transparency against efficiency and having an effective government. WikiLeaks seemed like a really interesting test case for my book. The question is what sort of effect did WikiLeaks have, first of all on national security and our safety, and second of all on public discourse and democracy. The effects were much less monumental than predicted. Our laws require a court, in many contexts here, to balance the positive and the negative effects of these kinds of disclosures. And before the fact, government will say that the disclosures will wreck our national security, and those who are in favor of leaking and want to defend leakers will say these leaks are incredibly important for our democracy and for the general public. And what I found was that neither of those claims ended up proving to be true, at least according to what I could track from public opinion polls, from contemporary politics, and from open source intelligence. I wrote most of my book before the 2016 election and before Donald Trump became President, but I think the Donald Trump presidency and the election itself only proves the book’s general thesis. Donald Trump claimed to be a transparent candidate and slammed Hillary Clinton for being too secretive. Donald Trump’s version of transparency is extremely powerful to his supporters and gave a sense that he was not being secretive in some way. As we’ve learned, he too has a problem with transparency. His administration, like all administrations before him, has attempted to keep secrets and those secrets themselves have become political. My previous book was about conspiracy theories, which studied how it is that people believe government is too secret. So, as you can see, there’s a real relationship between that book and this one. This one takes on the question of could government be so transparent as to create the kind of trust that would allow people to not believe in conspiracy theories. I’m pretty skeptical about that. My book suggests that transparency is impossible and that even as transparent as government can be people will continue to be deeply skeptical of it. I realize that my book sounds somewhat depressing. I have two larger suggestions that I think will make us a better world and allow us to have better politics. One is that although government has the legal authority to keep secrets, it should be more transparent. It should disclose more information about its policies and its practices. Secondly, we should focus our politics more on the substance of policies and what government is doing. We tend to focus and obsess on questions of government information and allow our political campaigns to crowd out real substantive discussions of policy for questions of emails, questions of tax returns and other things like that that are secondary to the real questions facing our nation.

Stephen Childs

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