Too Much Information

Conservatives should use state open records laws to go after the government, not individuals.

Controversy erupted in March when conservative groups requested access to the emails of pro-labor professors under state open records laws. There is plenty of hypocrisy on all sides of this blowup. But if conservatives are interested in protecting individual liberty, they sure have a weird way of going about it. Not only do the means they are deploying not justify their ends—they actually impair those ends.

It all began when William Cronon, a University of Wisconsin history professor, posted a long reflection on his personal blog about who's behind Republican attempts to limit the collective bargaining rights of public sector unions in Wisconsin. Cronon is a very smart man—an acclaimed historian and a MacArthur Fellow—and so when he adds two plus two and gets 22 he can count on being believed. Without a shred of evidence—or self-awareness about his own biases—he outlined the shadowy groups that allegedly form the vast right-wing conspiracy driving events in Wisconsin.

He blamed a "deeper network" of state-level conservative organizations whose chief villain is—no, not the omnipresent Koch brothers although they are a part of it too!—but ALEC, or the American Legislative Exchange Council. Cronon denounced ALEC as "anti-democratic" and invited a media investigation. ALEC's crime? It offers a forum for like-minded analysts and activists to move public policy in the direction of limited government, free markets, and federalism and has created a bank of model legislations for sympathetic legislators to consult.

Nowhere in his extended disquisition does he even entertain the possibility that legitimate taxpayer anger at public unions for bringing the state to the brink of bankruptcy might have something to do with the proposed anti-union legislation. After all, Wisconsin's unions have managed to finagle compensation packages from taxpayers that the taxpayers themselves can't get from their private employers!

Cronon's blog triggered half a million hits—along with an investigation by Wisconsin's Republican Party that promptly filed an open records law request demanding to see all his e-mails mentioning key state Republicans as well terms such as "recall" and "collective bargaining."

Meanwhile, in Michigan, the Mackinac Center for Public Policy, a free-market institute for which I have written, filed its own state Freedom of Information Act (FOIA) request against labor studies professors at Michigan State University, the University of Michigan, and Wayne State University, all public universities, looking for any e-mails with the terms collective bargaining, Wisconsin, Madison, Scott Walker, and Maddow (as in Rachel, the MSNBC host). Mackinac claims that its FOIA request had nothing to do with Wisconsin's. Nevertheless, it provoked a maelstrom of protest by many liberal pundits starting with Maddow herself who went totally ballistic on her show!

No doubt there is more than a hint of posturing in such liberal hyperventilating. The Wayne State's Labor Studies Center is a fair target given that it has become a wholly-owned subsidiary of unions because of its history of labor activism. Hence it is not a stretch to assume that it is illegally directing its resources to help its Wisconsin union comrades. Its website openly stated—until it was cleansed in the wake of the controversy last week—that "strengthening the capacity of organized labor" is its central mission. It offered unions advice on how to recruit and train "an activist core of workplace mobilizers" because "political action does not have to be a dirty word." It is deeply opposed to privatization of government services because that undermines public sector unions and offered a downloadable guide on how to fight privatization efforts, complete with a list of enemy organizations, including Reason Foundation, the nonprofit that publishes this website. In 2006, it was forced to remove from its website a petition drive for a ballot initiative to raise Michigan's minimum wage, a clear violation of Michigan's campaign finance law that bars political advocacy with public dollars. But it continued to carry a 225-page downloadable activist's handbook offering a "nuts-and-bolts guide" for creating a living wage campaign. The print version, co-authored by an ACORN employee, it said was available for $15 from ACORN's DC office!

In essence, Wayne State has been using taxpayer dollars to help public sector unions extract more taxpayer dollars. (At least ALEC uses private membership dues to bankroll its causes.) It is utterly unimaginable that the left wouldn't use every tool at its disposal—let alone a state open records law—to shut down any business school that, say, used public funds to advise companies on how to bust unions.

But none of this justifies conservatives' current crusade against individual professors, not even Cronon, absent evidence that they are engaging in political advocacy in their capacity as public university officials as opposed to private citizens. The crusade might be legal, but it is also offensive. It abides by the letter of the law but violates its spirit.

State open records laws, like the federal Freedom of Information Act, empowers ordinary citizens to subpoena their government and expose corruption and malfeasance. It is not meant to go after private individuals not acting in an official capacity. Public university professors are paid by taxpayers, but they don't make laws or control public funds. Their job is to explore and teach ideas, something that they can't do effectively if they fear political reprisal. This is precisely why we have a commitment to academic freedom in this country.  

Going after professors' private correspondence—on the pretext that it is taking place on government-funded computers through government-provided e-mail accounts—without credible evidence that they are engaged in anything more than expressing their own opinions is not just petty but dangerous. It turns open records laws into a weapon of one private citizen to intimidate another private citizen with whom she disagrees.

Ensuring that the government is properly spending our public dollars is a noble end—but not if it comes at the price of personal liberties. (For example, it serves the cause of accountability less and hurts the cause of personal liberty more when conservatives push drug tests on welfare recipients as a condition for government aid.) When there is a conflict between government accountability and liberty, those who are serious about individual liberty have to err on its side—or stop claiming that liberty is their end goal.

They can't have it both ways.

Shikha Dalmia is a senior analyst at Reason Foundation and a columnist at The Daily. A version of this column originally appeared at The Daily. Her husband is a professor at Michigan State University and although he has not received a FOIA request, she wouldn't object to it in his case.