Larry Lessig had a dream. In this dream, he was standing on K Street, preaching in the dark. Suddenly, a naked posse on Segways went whizzing by, shining their flashlights in people’s faces. Bystanders were all blinded by these random lights and lost their night vision. When Larry turned around, the naked posse was racing towards the White House for an open government rally, trailed by a screaming mob of marijuana-smoking birthers.
Larry Lessig wrote up his dream in a cover article for the New Republic entitled “Against Transparency: The perils of openness in government.” I suspect that this article will cause some angst inside the Beltway, where you’re either with us or against us. But, before the posse turns into a lynch mob, it is important to give the article a careful read.
Lessig starts by identifying what he calls the naked transparency movement, using as his centerfold Maplight’s report on “How Money Watered Down the Climate Bill.” What could be wrong with a report that allows citizens to see that members who voted against protecting forests got $25,745 on average from the Forestry and Paper Products industry, ten times as much as those voting to protect the forests?
In a truly memorable paragraph Lessig poses his straw man carefully before lighting the match:
What could possibly be wrong with such civic omniscience? How could any democracy live without it? Finally America can really know just who squeezed the sausage and when, and hold accountable anyone with an improper touch. Imagine how much Brandeis, the lover of sunlight, would have loved a server rack crunching terabytes of data. As a political disinfectant, silicon beats sunlight hands down.
Louis Brandeis is often invoked as the patron saint of sunlight, the creator of the idea that one can disinfect only what one can see. What we often forget is that Brandeis was talking about big corporations and robber barons, not the government. The Bedford edition of “Other People’s Money and How the Bankers Use It” is well worth a careful read, particularly the introductory essays which remind us that what Brandeis wanted was disclosure of salaries of corporate executives to avoid excessive compensation in an era when there was no minimum wage, no safety regulations, and workers were living and working in filth and poverty. The high salaries were offensive, and he thought no self-respecting member of society would pay himself that much if the word got out.
As we know from the financial meltdown, disclosure of corporate salaries has done nothing to reduce the shocking abuses we saw on Wall Street, where multimillion dollar bonuses were deemed essential—indeed, a right—to retain low-level employees with sufficient incentive to keep working at bankrupt firms being bailed out by the taxpayer. With executive compensation, the result of transparency “was not of shame, but jealousy, leading to even higher pay.”
The point of Lessig’s essay is not that transparency is bad. After all, Lessig is an active member of Sunlight Foundation’s Advisory Board. Lessig’s point is that transparency, naked and by itself, with no broader and deeper aims, will not automatically produce good results, and may indeed produce randomness in our government or far worse.
In particular, Lessig worries about what scholars have called “targeted transparency” in the recent book “Full Disclosure: The Perils and Promise of Transparency,” policies that use simple metrics to quickly allow a broad audience to determine influence or performance.
An example of the misuse of metrics is strikingly brought home in the recent essay by Jill Lepore in the New Yorker, “Not So Fast.” Lepore writes about the world of management consulting and how it has often failed in her review of Matthew Stewart’s new book “The Management Myth: Why the Experts Keep Getting it Wrong.”
Lepore also invokes Louis Brandeis, but in this case his unfortunate embrace of Frederick Winslow Taylor’s scientific management methods. Brandeis, a labor hero, was entranced by Taylor’s precise methods and simple metrics, choosing to believe a claim that railroads could save “a million dollars a day” by working smarter. Working smarter turned out to be based on the idea that “large powerful Hungarians” were loading 24 tons of pig iron per man per day, but by careful management, the output could purportedly be increased to 47.5 tons per day. The number had no basis in fact, but the new standard derived by carefully analyzing the workers got made into the new quota, and working conditions kept on deteriorating, and the unions cried out to Brandeis for making their life even worse.
Lessig’s point in the New Republic and Lepore’s in the New Yorker are identical. Merely revealing data is not enough. One must work with it, work with policy, and monitor effects. Transparency without a long-term commitment to policy is transparency without context, transparency that is merely naked:
This is the problem of attention-span. To understand something—an essay, an argument, a proof of innocence—requires a certain amount of attention. But on many issues, the average, or even rational, amount of attention given to understand many of these correlations, and their defamatory implications, is almost always less than the amount of time required. The result is a systemic misunderstanding–at least if the story is reported in a context, or in a manner, that does not neutralize such misunderstanding. The listing and correlating of data hardly qualifies as such a context. Understanding how and why some stories will be understood, or not understood, provides the key to grasping what is wrong with the tyranny of transparency.
Policy takes time. It takes focus. And it takes open eyes. I read Lessig’s argument not as an attack on the transparency movement, but an urgent plea to focus on the broader impact of their work, to redouble their efforts and dig in for the long haul. Engraved on the walls of the U.S. Capitol are these words by Louis Brandeis:
The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding.
Brandeis was actually writing in support of whiskey bootleggers in this famous quote from his dissent in Olmsted v. United States, 277 U.S. 438 (1928). Brandeis was dealing with the unintended effects of policy in this opinion. He was a strong supporter of prohibition, but had grown increasingly distressed by the methods federal agents were using to enforce the ban, and it led to Brandeis increased focus on civil liberties, privacy, and free speech, an evolution that took Brandeis 23 years on the bench.
Those invoking sunlight must also look into the darkness and remember the past. A good place to start is with Brandeis himself. His Supreme Court opinions, his essays, but also his life. For his life, one can do no better than the new biography from Melvin I. Urofsky, “Louis D. Brandeis.”
Lessig’s essay is a call for us all to pay attention. Transparency cannot start and end inside the beltway, it needs us all. As Brandeis himself noted when he argued before the court in Muller v. Oregon (208 U.S. 412) in his pathbreaking Brandeis Brief, the first brief to use hard social science data to try and change the law of the land, “the most important political office is that of the private citizen.”