When Open Government Slams Shut
Failed transparency, from Hillary Clinton's emails to hidden campaign contributions
On March 2, The New York Times revealed that Democratic Party presidential frontrunner Hillary Clinton had used a private email account to conduct official business for her entire four-year tenure as secretary of state. Clinton emailed President Barack Obama on an insecure server hosted in her own home. She destroyed many of her own messages, as she admitted after the Times article; the State Department had to conduct negotiations with her lawyers to get their hands on what remained of her official records. One can safely conclude that Hillary Clinton was more concerned about shielding her correspondence from scrutiny by American taxpayers than by foreign intelligence services.
Clinton's defenders made several half-hearted attempts to justify her behavior, but it was longtime aide Paul Begala who cut to the heart of the matter. "Voters do not give a shit about what email Hillary used," Begala told CNN. "They don't even give a fart."
It's depressing to contemplate, but as a strictly political calculation Begala may well be right. And here lies the paradox behind debates over government transparency: We don't know—and therefore have a hard time being outraged by—what we don't know. Maybe voters would have been incensed by the contents of the missives, but anything incriminating is likely long since deleted. The Democratic Party's presumptive 2016 frontrunner may well have made the shrewd calculation that it's better to violate transparency laws than be confronted with evidence of more serious wrongdoing.
Clinton's email scandal demonstrates the limits of government transparency initiatives. While 21st century advancements mean our ability to collect, store, and sort data is virtually limitless, any efforts at enacting and enforcing transparency rules are still limited by a political culture that creates incentives to fight openness every step of the way.
The Untouchable Administrative State
Not that long ago, a fresh-faced young senator was elected to the White House after running campaign ads mocking his septuagenarian GOP opponent for not using email. Barack Obama's backers expected not just a tech-savvy White House but an open one: The incoming president promised to "establish a system of transparency, public participation, and collaboration."
In hindsight, Obama's oft-repeated vow to run the "most transparent administration ever" has become a punchline even among his own supporters. On March 17, the White House quietly deleted the part of the federal register requiring the White House Office of Administration to be subject to Freedom of Information Act (FOIA) requests. On March 18, the Associated Press reported Obama set a new record for the number of FOIA requests denied—over 55 percent were refused in 2014. The administration also set a record for improperly denied FOIA requests, with one out of every three denials that was appealed last year eventually getting overturned. And the White House is dragging its feet egregiously when it comes to making information public. Six years ago, over half of all speedy processing requests for FOIA claims were granted. Last year, the government granted just one in eight requests to expedite the information being sought.
Hillary Clinton's seemingly unusual email troubles have, in fact, been replicated throughout the executive branch. Obama's head of the Environmental Protection Agency, Lisa Jackson, stepped down in February of 2013 after the Competitive Enterprise Institute's Chris Horner discovered Jackson had been using a secret email account under the name "Richard Windsor" to obscure her communications. Defense Secretary Chuck Hagel and Attorney General Eric Holder have both used multiple email aliases, we learned in the wake of the Clinton revelations.
The Justice Department claims with a straight face that hidden email accounts do not "in any way impact compliance with FOIA requests," but most journalists have no way of knowing which nom de email contains the information they're seeking. (It would also be easier to believe the Justice Department's claims of email transparency if Holder himself hadn't already been held in contempt of Congress for withholding documents related to the "Fast and Furious" scandal, in which the feds provided Mexican narcotraffickers with thousands of guns.)
Clinton, Jackson, Hagel, and Holder are all high-profile political appointees. But it's no easier to hold regular bureaucrats accountable. In 2013, after the Internal Revenue Service (IRS) admitted it had improperly targeted conservative groups for scrutiny, it turned out that the hard drives containing the emails of the IRS official primarily responsible, Lois Lerner, had been mysteriously destroyed. And Lerner wasn't alone—the number of IRS officials relevant to the subsequent congressional investigation who experienced email-nullifying computer crashes has grown to nearly 20.
In February, almost two years after the IRS first admitted wrongdoing, the IRS Inspector General's office announced that it had recovered 424 back-up tapes containing many of Lerner's emails. In doing so, investigators discovered that the IRS had been withholding a relevant document that pointed to the location of the back-ups. "There is potential criminal activity," Treasury Deputy Inspector General Timothy Camus told the House Oversight Committee.
In one of the newly recovered emails, Lerner even tells a co-worker, "No one will ever believe that both your hard drive and mine crashed within a week of each other." She was not wrong about that. Congress continues to investigate, but Lerner has pled her Fifth Amendment right against self-incrimination, retired, and started collecting a six-figure federal pension.
For decades, Congress has been offloading its lawmaking and oversight responsibilities to the federal bureaucracy, so as not to be held accountable by voters for tough legislative decisions and unpopular rules. The result is an administrative state so large and powerful that Congress can't even hold accountable a brazenly corrupt no-name middle manager at the IRS.
Following the Money Isn't Always Easy
Like so many other time-saving devices, electronic record-keeping has come to government last. Instead of easily updated, immediately searchable collections of information, the federal government oversees reams of paperwork—to the extent that The Washington Post in 2014 ran an astonishing feature, entitled "Sinkhole of bureaucracy," about a vast underground limestone mine in rural Pennsylvania jammed with needlessly dead-tree records kept by the Office of Personnel Management.
Such atavistic technology has provided aid and comfort to those who prefer their technically disclosable information obscure. For instance, modern political campaigns use very sophisticated spreadsheets and computer technology to keep track of donations. Yet the Federal Election Commission still accepts paper filings. The effort required to process the paperwork and enter it into federal databases is as unnecessary as it is time-consuming. But the lag time makes it more likely that financial improprieties (let alone legal-if-unsettling relationships) will not be disclosed to voters until after the election is over. When it comes to campaign finance violations, possession of a congressional seat is nine-tenths of the law.
Campaign disclosure requirements date back more than a century, and we know the names of everyone who has given a significant amount to a federal election since the 1970s. Yet are we truly well informed about who is trying to influence political campaigns?
Consider the case of organized labor. For all of the Democratic Party's grandstanding about campaign finance transparency, documenting their biggest fund raising source turns out to be difficult at best. Contribution disclosures, as pored over by nonpartisan watchdog the Center for Responsive Politics, tell us that 10 of the top 20 biggest political donors to federal elections since 2002 have been unions. But even though many of these (such as the National Education Association and the American Federation of State, County and Municipal Employees) are organizations comprising public-sector workers, their spending habits remain largely beyond scrutiny.
Union spending disclosures on political and organizing activities are governed by a separate set of rules that date back to the Labor Management Reporting and Disclosure Act (LMRDA) of 1959, which was passed to address then-rampant union corruption. Now, one can debate the constitutionality of forcing campaign finance disclosures, but to the extent that these laws are trumpeted as good for democracy the comparative lack of union transparency demonstrates that existing requirements present a wildly political, incomplete, and lopsided picture.
The Department of Labor over the years has been very selective in its enforcement of LMRDA. The George W. Bush administration was arguably the first to change that. Even though union bosses were required to file an LM-30 form with the Department of Labor disclosing whether they were being paid on the side by companies doing business with the union, only 96 LM-30 forms were submitted in 2004. Over 13,000 LM-30 forms were filed in 2005 thanks to Bush administration enforcement efforts. The Bush administration also required unions to itemize expenses and staff salaries for the first time on the LM-2, another financial disclosure form that unions are required to submit to the Labor Department.
That move toward transparency paid off. In 2009, a Safeway bakery clerk was elected head of a powerful Denver grocers union, United Food and Commercial Workers Local 7, after the new required itemizations revealed that the union's longtime leader had, among other things, put two relatives on six-figure salaries and used union dues to pay for expenses such as hefty bar tabs and NFL tickets.
Upon being elected with the help of over $400 million in union cash, the Obama administration immediately rolled back Bush's union disclosure requirements. But those few years' worth of detailed LM-2 forms were illuminating, to say the least.
A 2012 Wall Street Journal analysis of LM-2 data found that between 2005 and 2011, unions spent $3.3 billion on a broad range of political activities, such as persuading union members to vote for preferred candidates and using union resources and labor for campaigns, that went undisclosed. That's in addition to the $1.1 billion in campaign contributions they reported to the Federal Election Commission. Further, it's worth noting that public-sector unions are exempt from any LMRDA reporting requirements, so The Wall Street Journal's analysis of LM-2 forms still doesn't begin to capture how much money unions spend on politics.
And yet there is virtually no effort by either major party to make union spending more transparent. Indeed, when the then-Democratic Congress considered the DISCLOSE Act in 2010—an unsuccessful attempt to counteract the effects of Citizens United—the legislation contained language to exempt from scrutiny "funds attributable to dues, fees, or assessments which are paid by individuals on a regular, periodic basis." More precisely, unions would have been exempt from the law's attempt to track cash transfers to pay for election ads.
Whether it's right-wing "dark money" or the billions in undisclosed union politicking on the left, our onerous and labyrinthine campaign finance system has been a failure when it comes to transparency. Simpler might be better. The New Mexico legislature is currently pushing a bill, with bipartisan support, to eliminate limits on campaign contributions in statewide legislative races. The bill's sponsor, Democratic Senate Majority Leader Michael Sanchez, told the Santa Fe New Mexican he hoped the bill would encourage "contributors to give directly to candidates' campaigns rather than to independent expenditure groups, such as super PACS and nonprofits, which are neither subject to contribution limits nor required to disclose the names of donors."
Moving in the Wrong Direction
The Internet has gone a long way toward informing citizens about what their government is up to. A number of nonprofit watchdog groups, such as the Center for Responsive Politics and the Sunlight Foundation, are doing tremendous work to hold government accountable. This includes a wide array of activities like creating online tools to track government spending and political donations, suing government agencies that don't comply with transparency laws, and even archiving politicians' tweets when they try to delete ill-advised public statements.
But on the whole, it's hard not to be worried that transparency is moving in the wrong direction despite a technological revolution that should be enabling it. Transparency measures only work if voters demand change based on what's been revealed. Time and time again, the response has been apathy.
Consider the Securities and Exchange Commission's disclosure rules for executive pay. Shareholders were expected to shame CEOs into taking more modest salaries. Instead, when CEOs saw what their peers were making, the rules sparked an arms race in the financial services industry, with everyone demanding to be paid more than the other guy. Similarly, the chief effect of the White House's ballyhooed decision to make its visitor logs public seems to be letting other lobbyists know who the competition is.
The federal government feels so little heat from the public about transparency that it openly intimidates the very people trying to demand accountability. The Obama White House has been caught spying on journalists multiple times—including secretly obtaining two months' worth of phone records for more than 20 Associated Press reporters and editors, as well as digging through the emails and tracking the whereabouts of Fox News national security reporter James Rosen. The Obama White House has prosecuted more whistleblowers under the Espionage Act than all previous administrations combined. The media has only recently stirred to outrage, like in February when veteran New York Times reporter James Risen declared the Obama administration "the greatest enemy of press freedom in a generation." Despite the fact that journalists have every reason to be critical of the Obama administration's lack of transparency, they still aren't particularly aggressive. It took the Associated Press five years of stymied Freedom of Information Act requests to finally locate spine enough to file suit against the State Department for Hillary Clinton's emails, and even that only came after The New York Times published its revelation.
Washington's culture of secrecy and corruption thrives on a shrugging citizenry. If Clinton were forced to explain herself beyond an awkward press conference or two, and if her emails were located and combed through with the same enthusiasm that the national political press gave to Sarah Palin's gubernatorial missives back in 2011, then transparency might gain some long-overdue momentum. But until proven otherwise, Paul Begala might be right: The public just doesn't give a fart.
This article originally appeared in print under the headline "When Open Government Slams Shut."
