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Friday, April 01, 2011

transparency & politics

To set the scene: Zoom in from Wisconsin to Governor Scott Walker's and the Wisconsin legislature's ultimately successful effort to radically scale back public sector collective bargaining rights. Shift to the popular response against that effort in Madison (and elsewhere in the state), and focus on the work of academics at UW-M like History professor William Cronon. Now, consider the latest iteration of this battle -- a state FOIA request filed by the state Republican Party and a libertarian think-tank seeking emails from Cronon:

Copies of all emails into and out of Prof. William Cronon’s state email account from January 1, 2011 to present which reference any of the following terms: Republican, Scott Walker, recall, collective bargaining, AFSCME, WEAC, rally, union, Alberta Darling, Randy Hopper, Dan Kapanke, Rob Cowles, Scott Fitzgerald, Sheila Harsdorf, Luther Olsen, Glenn Grothman, Mary Lazich, Jeff Fitzgerald, Marty Beil, or Mary Bell.

Political payback against a state employee who had started a blog specifically to fight on behalf of organized public sector labor and who had published an op-ed in the New York Times? You betcha. It's part of a long though quite rich recent tradition of such uses, and it was apparently such a great idea that a parallel request has been made of professors at state universities in Michigan. I tend to view administrative procedures with a somewhat jaundiced eye, so let's start counting ironies here:

1.  Party switch. Republicans and conservatives have historically disliked the federal FOIA. President Ford vetoed major amendments intended to tighten the statute after several narrowing judicial constructions; a Democratic-controlled Congress overrode. The state story is more complicated, and open government has a "good-government" aura about it that doesn't necessarily align with any particular party. But in the post-Nixon era, general ideals about the necessity of "transparency" have generally trended, and trended strongly, towards Democrats. Times do change, though. Nowadays, even Karl Rove loves the FOIA.

2.  Ethical prison. Cronon and his supporters, including Paul Krugman, are boxed in: Their political and ethical commitments make them strong supporters of FOI laws and open government; they just don't like this request, because it's a form of harassment and political payback, a fishing expedition that may turn up nothing but that will certainly intimidate public employees' political activism.

3.  The illusion of FOIAvoidance. The assumption by many of his supporters is that surely Cronon, a quite accomplished professor and all-around smart guy, conducted any overtly political email exchanges via his private email account. In fact, he's said that he has long conducted "private" email correspondence on his own computers and via private email accounts. That would, at least in theory, preclude them from UW's response to the request, no? No! Suppose the History Department decided to cancel a faculty meeting so that its faculty could attend an anti-Walker rally, but they all decided to use their gmail and yahoo! and g-d help us aol accounts to communicate with each other. Or worse, suppose Cronon simply forgot which email account and which computer he was using, and sent a clearly official, departmental email via his gmail account. Or suppose he did so intentionally. Surely at some point the law can't abide either malfeasant or nonfeasant efforts to avoid the law -- which are of course fairly common (hey, Sarah Palin did it!). In fact, there's a Wisconsin Attorney General opinion directly on point: it doesn't matter what email account a public official uses for "official business," it's all potentially subject to the FOI law. Does this mean all of Cronon's emails must be disclosed? No, but it does mean that the search for emails that are responsive to the request would need to include those from his private account as well.

4.  The price of priceless administrative values. Which brings us to the sheer unfairness of this request, from Cronon's perspective. Unless he's willing to give over every email that is responsive to the request which he's sent from every account, then someone will have to review them to try to make the distinction between "official business" and non-OB, as well as perhaps redact portions of individual messages. (Thanks, libertarian think-tank and Republican Party, for increasing the taxpayers' tax burden with lots of attorneys' fees and busy bu-ro-cratic paperwork!) At the same time, it's nice to hear concerns about the compliance costs involved in responding to FOIA requests -- although, again, it's ironic to hear it coming from those who are complaining now. It was professor of Administrative Law (and soon to be DC Circuit Judge) Antonin Scalia who characterized the FOIA statute as “the Taj Mahal of the Doctrine of Unanticipated Consequences, the Sistine Chapel of Cost-Benefit Analysis Ignored” in a 1982 article in the Cato journal Regulation. Transparency advocates lobby heavily, and sometimes quite rightly, against high fees imposed for FOI requests. But someone's got to pay for this, and during times of economic crisis, compliance takes money and labor from something else that government employees might be doing. This is a worthwhile lesson for everyone -- recognize transparency's direct costs.

I thoroughly appreciate the difficult position that Professor Cronon finds himself in, especially as I am a public official in the state of Florida, which has arguably the most exacting sunshine laws in the country (enshrined in our state constitution no less) and where one of the key state supreme court decisions enforcing the open meeting act concerned a dean search at my law school (Wood v. Marston, 442 So. 2d 934 (Fla. 1983)). In fact, Cronon quite persuasively makes the case that many purely professional and academic tasks that he engages in cannot or at least should not be disclosed to the general public, whether to protect the privacy of communications with students (hello, FERPA, maybe!) or to protect the integrity of deliberative processes of the very distinguished academic collegial bodies of which he is a member. The problem, however, is that many government officials can and do make similar claims about their own work, as Jack Shafer of Slate has noted. Working at a flagship state university is an awe-inspiring experience, in some ways more rewarding than working at a school like Yale, which Cronon left to move to Madison. But engaging in the great land grant college project (itself made vulnerable by a waning commitment to public higher education by legislatures and governors like those who currently govern Wisconsin) makes one a public employee, for better and worse. 

What's interesting about the dynamic of this dispute is that while we easily recognize the political uses of facially neutral procedural rules in rulemakings at the federal and state level, extending that insight to open government laws seems heretical. There is something about the ideal of transparency that leads people to think that its inevitable extension to almost everything public and governmental should be above the political fray. Hence Cronon's plaintive, understandable, but undoubtedly futile response to the requesters: For the good of the university and of higher education, please withdraw this request. If you follow any of the comment strings of newspaper and blog posts on this story, you will see one or more Republicans responding quite bluntly: It's the law, Cronon, and we're using it.

Posted by Mark Fenster on April 1, 2011 at 09:00 AM in Current Affairs | Permalink


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Mark -- I accept you are right that the law makes no distinction, and certainly you are right that the difficulty of doing so is why Congress acted on the side of over-disclosure. But my intuition -- unleavened, of course, by something as trivial as knowledge of the actual text of FOIA or its legislative history -- is that ex ante line drawing is possible to exclude cases like Cronon's. He has no nexus whatsoever to actual policy-making or its implementation; he's not even a bureaucrat stamping forms.

Posted by: Brendan Maher | Apr 2, 2011 12:11:19 AM

Rick: Thanks for the compliment (you too, Brendan). I agree entirely, and while I hate the really banal move of laughing at the hypocrisy of your opponents (another tendency shared by both sides), this is clearly an instance when both sides use these laws and norms strategically. That said, I really appreciate the fact that Cronon is thoroughly tied up in knots about it. His blog post (I link to it) is a really painful, though fighting, admission of the conflicted position he's in. I don't see Karl Rove or the Wisconsin Republican Party feeling so torn about their use of such tactics. Someone like Dick Cheney or Justice Scalia, who have and have articulated principled reasons for their transparency skepticism, might be in a similar position, though it's possible that a brilliant if flawed political operative like Cheney might just outsource his use of such tactics so he has plausible deniability. I dunno.

Brendan: Many of Cronon's UW emails might in fact not be subject to FOIA, even if they would be responsive to the request. That issue would require going much further into the weeds of state case law for me to answer, but he might still be able to protect personal emails or personal excerpts of emails sent from his work computer and work account. On the question of the relative value of disclosure in Cronon's case rather than, say, the head of an executive branch agency or an important legislator (assuming Wisconsin's law, unlike federal law, applies to the legislature): The problem Cronon faces is that the law makes no such distinction. And you can understand why, if the law's policy is to maximize disclosure. To open the door to independent, individualized judgments as to who makes policy or who makes more policy is to build in a level of indeterminacy that would be unmanageable, either judicially or in terms simply of compliance. Everyone would claim they're powerless and no one would comply. I sense that Cronon himself understands this.

Posted by: Mark Fenster | Apr 1, 2011 11:32:38 AM


Great post. I'm no FOIA expert, and thus blissfully not up to speed on its particulars. So what follows is really a policy argument, and thus perhaps of no interest. (And Mark, I don't mean to imply that you and I have any disagreement, this is just free-form pontificating.)

I'll assume FOIA covers Cronon's work emails (and even some/all of his private emails, as you suggest). Something about that strikes me as not right, and for reasons that have nothing to do with Cronon's politics. Statutes like FOIA make sense so that citizens can understand and police, via pulpit or political influence, the government's actions as sovereign. They make less sense when used to burden individuals whose entire relationship with the government is essentially an employment relationship.

Cronon does not, even indirectly, make policy for anything or anyone, adjudicate disputes, make appropriations, award contracts or grants, commit troops or state resources, or hold any regulatory power whatsoever. He's an employee who teaches students and produces scholarship (the latter of which, incidentally, absolutely does not represent the view of his employer). Certainly the acts of an employee necessarily reflect on the employer, particularly when the employer is the government, but so, in a similar sense, do the acts of anyone benefiting from government money, whether coming in the form of a wage or a tax break.

The benefit of transparency in Cronon's and similar cases seems small compared to the cost. Imagine if, tomorrow, thousands of FOIA requests were issued to obtain the emails of all public academics that referenced hot-button political words, "Obamacare," "Glenn Beck," "Libya," etc. Would we be better off? Enormous time would be wasted, and no doubt future "offstage" academic dialogue would be less frank. Which would be a significant loss, because clash, candor, devil's advocacy, and sloppy or impish exchanges -- which can look unserious, unprofessional, partisan, or incompetent when taken out of context in retrospect -- do much to drive clear thinking.

As for the argument that Cronon might have "misused" state resources by sending a few errant emails, it seems to me there are different ways to police such conduct than by making a vast swath of his correspondence public.

Posted by: Brendan Maher | Apr 1, 2011 10:14:31 AM

Nice post, Mark. And, yes, there is an irony to the "party switch." (To absolve myself of defensive hypocrisy, I had earlier characterized the Walker FOIA request as inconsistent with conservatives’ frequently declared aversion to FOIA myself).

But, just to push back a wee bit in defense of my fellow conservatives... there is always a collective action problem pressing everyone towards hypocrisy on matters of individual rights like privacy. Few politically active folks are willing to engage in unilateral disarmament by forswearing weapons that their opponents use. I recall that Justice Brandeis had remarked that judicial activism was a bad thing but that, if conservatives were going to promote such activism to protect business, then he would do so for the sake of freedom of expression of individuals).

Posted by: Rick Hills | Apr 1, 2011 10:00:04 AM

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