The Yale Law Journal

October 2018

Transparency’s Ideological Drift

Legal HistoryAdministrative Law

abstract. In the formative periods of American “open government” law, the idea of transparency was linked with progressive politics. Advocates of transparency understood themselves to be promoting values such as bureaucratic rationality, social justice, and trust in public institutions. Transparency was meant to make government stronger and more egalitarian. In the twenty-first century, transparency is doing different work. Although a wide range of actors appeal to transparency in a wide range of contexts, the dominant strain in the policy discourse emphasizes its capacity to check administrative abuse, enhance private choice, and reduce other forms of regulation. Transparency is meant to make government smaller and less egregious.

This Article traces transparency’s drift in the United States from a progressive to a more libertarian, or neoliberal, orientation and offers some reflections on the causes and consequences—and on the possibility of a reversal. Many factors have played a part, including corporate capture of freedom of information laws, the exponential growth in national security secrecy, the emergence of the digital age and associated technologies of disclosure, the desire to facilitate international trade and investment, and the ascendance of market-based theories of regulation. Perhaps the most fundamental driver of this ideological drift, however, is the most easily overlooked: the diminishing marginal returns to government transparency. As public institutions became subject to more and more policies of openness and accountability, demands for transparency became more and more threatening to the functioning and legitimacy of those institutions and, consequently, to progressive political agendas. Coming to terms with transparency law’s ambivalent legacy is the first step toward redeeming its promise in the present day.

author. Professor of Law, Columbia Law School. This paper was originally delivered as the keynote address at a University of Agder (Norway) conference on transparency and was subsequently presented at the ACLU’s national headquarters, Columbia Law School, FGV Direito Rio, Université de Montréal, and Yale Law School. I am grateful to the organizers of and participants in those events; to Cristina Alvarez, Sam Ferenc, Joe Margolies, Lauren Matlock-Colangelo, and Symone Yancey for helpful research assistance; and to Ashraf Ahmed, Jessica Bulman-Pozen, Aaron Dhir, Mark Fenster, Jeff Gordon, Christine Jolls, Jeremy Kessler, Seth Kreimer, Genevieve Lakier, John Langford, Sam Lebovic, Lawrence Lessig, Jane Mansbridge, Josh Mitts, Sam Moyn, Dana Neacsu, Christina Ponsa-Kraus, Jed Purdy, Sabeel Rahman, Chuck Sabel, Michael Schudson, Matt Shapiro, Ganesh Sitaraman, and David Super for especially generous feedback on earlier drafts. I dedicate this paper to the memory of Robert Ferguson.