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Lawrence Lessig: Good Reasons To Limit Open Government

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Last week, The New Republic posted a provocative essay by open-information guru Lawrence Lessig, making a case to which he would seem to be antithetical: that we must temper our headlong rush into universal government transparency.

(I’ll provide here a summary of his argument, though I’d recommend either reading the full 11-page document, or, at least, this short-hand summary of it, which I found through the always-fascinating Jay Rosen.)

Lessig differentiates two types of government information that transparency advocates seek to have made available. The first is what I’ll call legislative and raw data; the other, indicators of influence.

Legislative and raw data is material such as the content of bills and actual numbers generated by government activity (such as you might find at Data.gov). There is some objectivity to this information – one can certainly form an opinion about legislation, but, unless you’re Betsy McCaughey, the substance of them is fairly objective.

“Information, poorly processed, can lead to damning accusations, and it’s easy for those accusations to stick.”

(A brief aside: in order to bring transparency and combat the pervasive assumption that elected officials have no idea what they’re voting on, President Obama has suggested a waiting period between the introduction of a bill and its floor vote. Republicans, who’ve been hammering on this issue, think a longer period is needed, though they certainly had plenty of opportunities to put such a policy into law over the past several years. As for why they didn’t: “It was a different time,” according to John Boehner.)

The other type of data which open government advocates seek is that which deals with contributions to elected officials, what I above referred to as indicators of influence. Who gave how much to who, and how those officials then voted. This data is Lessig’s primary concern – that the necessary interpretation of what those contributions mean can potentially damage the work of elected officials.

Here’s his point: the interpretation of what money elected officials have received is subjective. What timeframe of giving is indicative of undue influence? How much? How much in comparison to what they’ve received from those of an opposing viewpoint? Each of these questions (and many more) can be answered in different ways depending on the point one wants to make. A strong comparison that Lessig draws is to the first-blush assessment of surveillance camera footage. An observer can quickly draw an erroneous conclusion from what he sees on a camera feed, outside of the full context of the scene.

But perhaps a better example is the attempt to regulate the financial industry. While there is general agreement that the lack of regulation on securities led to last September’s economic crisis, it is difficult to determine what level of regulation would be both sufficient and loophole-free, if any. (Coincidentally, when Louis Brandeis suggested the mantra of open government advocates, that “sunlight is said to be the best of disinfectants,” he was seeking additional regulation on financiers.)

Lessig’s concern is that, given the limited attention citizens are willing to pay to complex issues, a misinterpretation of a contribution will be halfway around the world while the actual situation is donning its boots. As he says:

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.

Further, the lack of interest by the media in giving as much play to corrections as they do to initial reporting means that citizens often won’t have a chance to hear the truth at all.

Lessig raises a very good point. In addition to the years of my life I’ve dedicated to establishing geek cred, I’ve spent years working politics in California and New York. I can say, from experience, that information about contributions is regularly used to make a political point, both from honest and deceptive purveyors.

For example, I worked this last summer on a political campaign here in New York City. Over the course of the campaign, the candidate, recognizing the significant problem of city officials giving kickbacks to supporters, spoke out publicly against the practice. This resulted in more attention being paid to his behavior – and a completely misleading piece in a local tabloid. It was easy, given the availability of information, to portray innocuous behavior as being illegitimate – therefore allowing a piece about the candidate’s “hypocrisy” to be printed. This is the crux of the problem: that information, poorly processed, can lead to damning accusations, and that it’s easy for those accusations to stick. Whether it is intentional or not, that it can happen is a significant problem. (In the case I just cited, the paper went on to endorse the candidate.)

I’ve also found, over my career, that contributions are far less an indicator of how an elected official will vote than are the politician’s friendships. That these relationships are unquantifiable poses a significant challenge to ever fully understanding why decisions are made – and ultimately means that Lessig’s proposal to bring appropriate sunshine is doomed.

That proposal offers a somewhat tangential solution to the problem. Lessig suggests the passage of campaign finance reform, which would limit the influence of outside money. His point, as I understand it, is less that this would restrict how money comes in, but would decrease the likelihood that an overwhelming contribution from one source would influence action. He proposes the passage of the Fair Elections Now Act (FENA), though he admits the name is misleading.

There are two problems with this idea. The first, mentioned above, is that it won’t actually capture information about relationships, a prime driver of influence in decision-making. But, second, it also masks where money comes from for all but the most savvy. In San Jose, California, where I once worked in politics, such a law is in place, capping how much money can be given by any individual or group. What this means, though, is that organizations, like the Chamber of Commerce, spend enormous energy building fundraising trees – garnering maxed-out contributions from employers, employees and their spouses as deep into member organizations as they can go. To the casual observer, it looks like the Chamber of Commerce has given only once. To those in the know, it’s obvious both how much money has been given, but also, how much time.

Reform, and transparency, are needed. But Lessig is right: simple solutions don’t exist, and currently enacted solutions must be understood to be flawed. What he doesn’t say is the hardest truth of all – that the ultimate success of our democracy depends on an engaged, educated electorate.

No wonder solutions are so hard to find.

Philip Bump is a technology and communications consultant in New York City who will be writing an occasional column for Mediaite about the intersection of history and the Internet called “The Wayback Machine.” Follow him on Twitter here.

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