Imperfectly Clear: The unlikely history of how public information became (somewhat) free

Transparency is now such a venerated public good in America you'd suspect that--like the Grand Canyon and three-card monte--it has always been with us. But no, writes Michael Schudson in his learned history The Rise of the Right to Know. Transparency, it turns out, is only about as old as rock 'n' roll (though, as is the case with rock 'n' roll, its champions can point to historical precursors that gave it its form). Given this hint, you might then guess that transparency--and its bureaucratic manifestation, the Freedom of Information Act (FOIA)--was conjured into being by the civil-rights movement or by the antiwar agitations of the '60s or by just a weatherly swing in the zeitgeist. But again, demonstrations and placards played almost no role in the campaign to advance public transparency into the operations of government, business, and other institutions (nonprofits, universities, the media). And, perhaps fittingly for a bureaucratically administered citizen's right, the transparency mandate wasn't the handiwork of some richly remembered crusader like Ralph Nader, but sprouted chiefly from the diligent labors of a no-name plodder of a congressman from Northern California.

"Somehow we have collectively backdated ideas and innovations of the past half century to the country's founding era" is how Schudson puts it. The Constitutional Convention bandied about the right of the people to know what their government is up to, but that principle found only modest purchase in the Constitution itself, in a passage of Article I, Section 5 that is more about accurate record keeping (e.g., in vote tallies and official proceedings) than transparency. The framers advocated for an informed citizenry, but they stopped short of saying or implying that being informed "meant that citizens should be able to demand information from those serving in government." The term "right to know" did not appear in Supreme Court opinions or in popular usage until 1945, Schudson writes, when an Associated Press executive first stated that the "right" was a genuine American entitlement in a speech he delivered at a synagogue.

Yet by the '50s, the right still had not been ratified by the courts, endorsed by the legislatures, or saluted by the public. Until the '60s, Congress ran its affairs with more secrecy than the inner sanctum of the Illuminati, its "essential decision-making activities closed to the American people and even fenced off from many of their elected representatives," Schudson writes. Many votes were shrouded in secrecy, too. Employing a parliamentary gimmick, Congress concealed the yeas and nays cast on defeated amendments, a key evasive tactic that rendered the institution--and, more to the point, the individual lawmakers sheltered by it--less than accountable. This all began to change in the '60s, when junior members of Congress, told by leadership to shut up and bide their time until the seniority system ferried them to positions of power, started to agitate for "procedural reform." In Schudson's telling, the goals of the reformers were both lofty--greater transparency--and Machiavellian: vanquishing the power of the southern Democrats, who had long controlled Congress. Nor was the national press initially at the vanguard of the fight to establish the right to know. The news media, which had previously paid lip service to transparency, was still wrapped up in an "overcooperative" relationship with the "entrenched political class" in the '50s and early '60s, obligingly publishing handouts from cozily positioned politicians instead of digging into their conflicts and corruption. This was the sort of press, Schudson notes, in which luminaries such as Walter Lippmann and James Reston could help a senator write a speech and then turn around and praise the speech in print. The media's backbone stiffened in the '60s, Schudson writes, as a better-educated press corps began to serve a better-educated readership with more-critical reporting, and as the major papers invested heavily in investigative journalism.

The unsung hero who erected the foundation of today's transparency age was a House member from California, Democrat John Moss. When Moss arrived for his first term in 1953, his party was in the minority. Moss's lack of clout furnished him with an invaluable crash course in just how firmly the protocols of Washington power could lock down the flow of information. When his Post Office and Civil Service Committee requested information about loyalty-security firings from the Civil Service Commission, it was rebuffed with the curt reminder that the committee had "neither the responsibility nor the authority" to release the data. In his next term, Moss was elevated to the chairmanship of the new Subcommittee on Government Information, thanks to the Democrats' restored House majority, and he began to campaign loudly for the then-novel cause of freedom of information; along the way, he drew support from the Washington Post, the wire services, and other media. A freedom-of-information movement had already taken root at the state level, since reporters in the nation's statehouses were being denied rudimentary information about the workings of government and its agencies.

However, since the Moss Committee and press organizations were joining forces amid the decorously logrolling culture of Washington, their collaborations can--should--make a contemporary reporter wince. For one thing, Moss's staff was mobbed up with former reporters. For another, it would write the press organizations' annual reports on the state of freedom of information--after which journalists would dutifully cite the reports to praise the committee. Shades of Lippmann and Reston!

"Moss used Cold War language to oppose the secrecy that the Cold War itself had promoted," Schudson writes. He deliberately dragged the totalitarianism of the Soviet Union into the debate by decrying the "paper curtain" of secrecy that Washington had erected to conceal its bureaucracies' workings. And as Moss assembled a workable freedom-of-information bill and solicited support, members of the press went out of their way to assist him. "They fed Representative Moss information he could use in promoting the cause. They praised Moss and his efforts in editorial after editorial. They covered his hearings and his other efforts to embarrass the executive," Schudson writes.

The Freedom of Information Act became law in 1966, but not because any public groundswell for transparency hoisted the issue into Congress and deposited it into the US Code. Rather, like many pieces of legislation, it was the product of a Washington power struggle. A "battle between the branches of government" pitted Congress against the information-withholding executive branch, so Congress took it upon itself to expand its power by passing a new measure that made it easier to monitor the federal bureaucracy and the administrative state. (Every executive agency that testified at the bill's hearings opposed it.) Moss, never one to soft-pedal his argument, likened increased transparency to democracy--and the information-stingy maneuvers of the executive branch to authoritarianism. Over time, foia effectively weaponized the press and the citizenry alike to uncover waste, wrongdoing, and overreach, by giving any person the legal right to request government information and appeal when requests were denied. One of foia's shortcomings--then as now--was exempting Congress, as well as the courts, from its reach. But that limitation was by design, not by chance; Congress had little interest in making itself more accountable.

The transparency movement picked up some popular momentum, thanks to the mid-'60s rise of the consumer movement. Consumers had only limited protection against fraud and deception and knew little about the content of their products. After becoming president, John F. Kennedy urged Congress to expand their rights, and the campaign was subsequently taken up by the Johnson administration. Consumer-protection measures required that all "consumer commodities" be heavily labeled, disclosing net contents, identity of contents, and name and place of manufacturer. By one count, twenty-five major consumer and environmental regulatory laws were passed between 1967 and 1973.

Schudson also finds evidence of a cultural trend toward disclosure and transparency in the arts, with the rise of the memoir, entertainment (daytime-TV confessionals), and the "open and guilt-free communication" of books like Our Bodies, Our Selves (1971), as well as innovations such as public registries of sex offenders. Perhaps the wonkiest expansion of transparency was the environmental impact statement (EIS), which posited a societal right to know, in technical detail, how the federal government's actions would affect the environment. But in Schudson's telling, the EIS's wide-ranging powers were not "clearly foreseen at the time of passage" of the authorizing legislation. The environmental laws "did not respond to public pressure so much as open up the roadways along which public pressure could travel," Schudson writes.

A more troubling irony of the transparency movement is the one Schudson lays out in his final chapter: The rhetorical enshrinement of transparency as a founder-certified public good has not made public life more open. Everywhere around us--from government databases to Google's and Facebook's servers--petabytes of secret information are being stored and collected for future use. Schudson justly views transparency not as an end in itself but as a means to an end--usually the shift of power from one group to another. The equivocal state of public transparency in our turbo-charged information age doesn't mean that the rise of transparency was just another Washington boondoggle or a cynically conceived political fraud. But it does displace Schudson's narrative, as it converges on the present day, from the familiar and reassuring saga of heroes and villains, reformers and reactionaries, doing battle over an unassailable right or higher principle of self-governance. Instead, the fate of the public's right to know now depends, once more, on the venal, self-interested machinations of dubiously accountable political actors. The fight for transparency is just war by other means.