[EL] sunlight, the best disinfectant
Daniel Schuman
dschuman at sunlightfoundation.com
Tue Jun 28 21:09:49 PDT 2011
This may shed some light on the origins of the phrase.
http://sunlightfoundation.com/blog/2009/05/26/brandeis-and-the-history-of-transparency/
Brandeis And The History Of Transparency
Sunlight Intern <http://sunlightfoundation.com/people/sintern/> May 26,
2009, 10:47 a.m.
*“I’m proud to present the third and final part in the series of research
projects from the Sunlight Foundation spring semester interns. This post is
by Andrew Berger, he spent time looking into the past and following Louis
Brandeis career in transparency and how it relates to the current movement.”
– Nisha Thompson <http://www.sunlightfoundation.com/people/nthompson/>*
By Sunlight Foundation Intern, Andrew Berger
I never really feel like I understand something unless I have a sense of its
history. (I once wanted to become a historian; I guess that's just how I
think.) So it's no surprise that during my internship here at Sunlight, I
found myself wanting to know more about the history of transparency. For my
research, I decided to focus on efforts to increase transparency in the
United States during the early twentieth century, using Louis Brandeis as a
guide.
Brandeis made his famous statement that "sunlight is said to be the best of
disinfectants" in a 1913 *Harper's Weekly* article, entitled "What Publicity
Can Do."<http://www.law.louisville.edu/library/collections/brandeis/node/196>But
it was an image that had been in his mind for decades. Twenty years
earlier, in a letter<http://books.google.com/books?id=PJdTZbY44-AC&pg=PA100&dq=%22If+the+broad+light+of+day+could+be+let+in+upon+men%E2%80%99s+actions,+it+would+purify+them+as+the+sun+disinfects.&client=firefox-a>to
his fiance, Brandeis had expressed an interest in writing a "a sort of
companion piece" to his influential article on "The Right to
Privacy,"<http://www.law.louisville.edu/library/collections/brandeis/node/225>but
this time he would focus on "The Duty of Publicity." He had been
thinking, he wrote, "about the wickedness of people shielding wrongdoers &
passing them off (or at least allowing them to pass themselves off) as
honest men." He then proposed a remedy:
If the broad light of day could be let in upon men’s actions, it would
purify them as the sun disinfects.
Interestingly, at that time the word "publicity" referred both to something
like what we think of as "public relations" as well to the practice of
making information widely available to the public (Stoker and Rawlins,
2005<http://scholar.google.com/scholar?hl=en&lr=&client=firefox-a&q=%22The+light+of+publicity+in+the+progressive+era+from+searchlight+to+flashlight%22+author%3Astoker+author%3Arawlins&btnG=Search>).
That latter definition sounds a lot like what we now mean by transparency.
Curious to know more about Brandeis' early views, and disappointed to learn
that he never wrote the article on publicity he suggested in the letter, I
went looking for detailed statements he might have made on transparency from
earlier in his career. I eventually found transcripts of several speeches he
gave on municipal reform and good government in 1903 and 1904, the longest
of which I discuss below. This speech is not just a window onto the past,
but a way to see what has and what has not changed in the movement for
transparency: a way to see both how far we have come and how far we still
have to go.
*From Brandeis' Boston to today*
Brandeis graduated from Harvard Law School in 1878 and for the first decade
or so of his legal career, he does not seem to have been very heavily
involved in public affairs. But in the 1890s, he began to take on cases that
brought him into closer contact with the political system. One important
case dealt with the reform of the Massachusetts state liquor laws, which
followed the revelation that the liquor lobby was bribing state legislators.
In another case, he represented a group of merchants--some of whom were
already his clients from other contexts--who opposed an attempt by the
Boston subway company to gain a monopoly over the city's mass transportation
system, which at the time was not entirely in public hands. He was largely
successful in both cases (Strum,
17-19<http://www.kansaspress.ku.edu/strbra.html>
).
In addition to his legal work, Brandeis gave speeches on politics before
business, reform, and good government groups. His April 1903 address before
Boston’s Unitarian Club made several of the local papers. The *Boston Herald
* considered the event important enough for a front page headline: "USE
SEARCHLIGHT ON THE CITY HALL: Brandeis Says It Is High Time to Delve Into
Corruption in City Affairs." The article included a transcript of Brandeis'
remarks.
Here, in the course of highlighting a number of questionable expenditures
the city had made in recent years, Brandeis hit on some key topics that
remain at the forefront of transparency efforts today: the importance of
collecting and disseminating government data, the need for open meetings,
and the role of nongovernmental groups in making government more
transparent.
Taking them in order, and with an eye to modern-day parallels:
- Data collection and dissemination
Many suspected that some significant number of city employees had patronage
jobs that required little work. To expose these cases, Brandeis and other
reformers supported the publication of the city payroll. Brandeis also
praised the new mayoral administration for issuing public reports about the
city’s spending under previous administrations. But because the city’s
bookkeeping records were such a mess, the value of the reports was limited:
it was very difficult to compare Boston’s spending with that of other
cities, or even with its own spending in earlier years. To Brandeis, this
illustrated the importance of getting cities to adopt uniform accounting
rules.
Today, transparency has moved beyond a focus on accounting standards and
printed reports, which have become largely routine, but the principles
remain quite similar. Only now the push is for online access to data and
uniform data standards. Many states and other public entities have begun
putting spending information online in recent years, but they have not
always used the same reporting standards. These efforts are encouraging, but
the adoption of agreed upon standards would make it possible to run a wider
range of analyses on the data, especially across different states.
- Open and closed meetings
While the board of aldermen did meet in public session, it was only to
receive business. Then the aldermen would carry out their discussions and
vote as the "committee on public improvements"--which was essentially the
same group of men, only meeting in closed session. This "desire for
secrecy," said Brandeis, was "not surprising" when you considered the
"quality of the some of the acts" approved by the board.
Things have improved considerably in this area since Brandeis’ day. Many
states have open meeting laws that require justifications to be given for
closed meetings. Transparency efforts now focus more on getting the content
of those meetings – agendas, minutes, even live or archived audio or video –
online.
- The role of nongovernmental groups
Finally, Brandeis declared that government action, no matter how dedicated,
would never be enough to keep the public sufficiently informed: "the
individual citizen must in some way collect and spread the information."
This meant not so much individuals acting alone, but nongovernmental
organizations such as civic groups who provided information to voters or,
even more importantly, the press. Speaking at a time when the only way to
reach large audiences on a regular basis was through print, Brandeis saw the
press as potentially "the greatest agency of good government"--but only "if
the people are sufficiently interested to desire it."
This raises an important question: how do the people become "sufficiently
interested"? Brandeis seems to have believed in a symbiotic relationship
between an informed and an engaged citizenry. The people had not yet joined
the fight against corruption because they did not yet know enough about the
situation. They were "ignorant of the facts--ignorant of the specific acts
of misgovernment--ignorant of the low character or quality of many of the
men by whom in public life they are misrepresented."
No one, he said, could "look into the details of our city's administration
and be indifferent." Such information would naturally lead to indignation,
and out of that indignation would come a movement for "remedial action."
Publicity would overcome apathy.
The printed press, even in its current troubled state, continues to play an
important role in generating interest in government and misgovernment, but
now it has been joined by outside groups producing their own research and
analyses. While such groups have existed for decades, the Internet has made
it possible for them to reach large audiences directly – and if this
audience includes reporters, and those reporters then reach even more
people, so much the better.
The Web has also made possible types of information sharing and citizen
engagement that did not exist even a few years ago, much less in Brandeis'
time. It has become easier for a person to turn from passive reader to
active participant in politics. But it remains just as true today that a
person has to become “sufficiently interested” in order to do so. To an
extent, techniques like data visualizations, which really seem to have taken
off in recent years, are important not just for the specific content they
present, but for their potential to drive interest in government
information. They are additional strategies--to go along with more
traditional forms of research and reporting and advocacy--for using
transparency to overcome apathy.
I would like to have a tidy conclusion here, but to be honest, I don’t think
there is one. It would be nice if this were one of those histories where
people in the past faced a problem--in this case, making government more
transparent--and now, in the present, we have largely solved that problem.
But as I hope I’ve made clear, while the details have changed, the
principles, and many of the challenges, remain. In fact, as I carried out my
research, I was often struck by how familiar many of the issues were, just
on a different scale from today’s.
Brandeis makes a convenient guide into this past era, but he was not alone.
Woodrow Wilson, for example, who would later appoint Brandeis to the Supreme
Court in 1916, wrote about the need to shed light on the
government<http://books.google.com/books?id=vkkAAAAAYAAJ&pg=PA26&dq=%22light+is+the+only+thing+that+can+sweeten+our+political+atmosphere%22&ei=nKIVSq3nOZrEzASuzrH7Ag>all
the way back in 1884. And by the 1890s several states were already
experimenting with disclosure rules in order to combat
corruption<http://cdl.library.cornell.edu/cgi-bin/moa/moa-cgi?notisid=ABP2287-0043-35>in
campaign
finance<http://books.google.com/books?id=bvcLAAAAMAAJ&pg=PA26&vq=campaign+committees&source=gbs_search_s&cad=0>.
We may not have much to learn in the way of specifics from these past
transparency advocates, but we can at least gain perspective, and sometimes
even inspiration, from their efforts.
Daniel
Daniel Schuman
Director | Advisory Committee on Transparency<http://transparencycaucus.org/>
Policy Counsel | The Sunlight Foundation <http://sunlightfoundation.com/>
o: 202-742-1520 x 273 | c: 202-713-5795 | @danielschuman
<http://www.facebook.com/sunlightfoundation><http://twitter.com/sunfoundation><http://www.youtube.com/sunlightfoundation><http://sunlightfoundation.com/join/><http://blog.sunlightfoundation.com/feed/rss/>
On Tue, Jun 28, 2011 at 7:13 PM, Smith, Brad <BSmith at law.capital.edu> wrote:
> “Should MN disclose individual donors to ballot amendment campaigns –
> like the Marriage Amendment?” <http://electionlawblog.org/?p=19871>
> Posted on June 28, 2011 <http://electionlawblog.org/?p=19871> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> A point-counterpoint.<http://insight.mprnews.org/discussion/258/should-mn-disclose-individual-donors-to-ballot-amendment-campaigns-like-the-marriage-amendment/>
> Leaving aside everything else, this statement in the exchange, "As U.S.
> Supreme Court Louis Justice Brandeis said, referring to the benefits of
> transparency in government, *“Sunlight is the best disinfectant.”"* is
> incorrect. Brandeis wasn't refering to the benefits of transparency in
> government, but rather to securities and stock exchanges.
>
>
> *Bradley A. Smith*
> *Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law*
> *Capital University Law School*
> *303 E. Broad St.*
> *Columbus, OH 43215*
> *(614) 236-6317*
> http://www.law.capital.edu/Faculty/Bios/bsmith.asp
>
> ------------------------------
> *From:* law-election-bounces at department-lists.uci.edu on behalf of Rick
> Hasen
> *Sent:* Tue 6/28/2011 6:07 PM
> *To:* law-election at uci.edu
> *Subject:* [EL] more news 6/28/11
>
> “Q&A: Susan Saladoff, Producer and Director of ‘Hot Coffee’”<http://electionlawblog.org/?p=19874>
> Posted on June 28, 2011 <http://electionlawblog.org/?p=19874> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> See here<http://amlawdaily.typepad.com/amlawdaily/2011/06/hotcoffeeqa.html>.
> I haven’t seen this yet, but I hear the parts on judicial elections are well
> worth seeing. I also talk a lot about the myth of the McDonald’s coffee
> case in my Torts class, so I really want to see that part as well.
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19874&title=%E2%80%9CQ%26A%3A%20Susan%20Saladoff%2C%20Producer%20and%20Director%20of%20%E2%80%98Hot%20Coffee%E2%80%99%E2%80%9D&description=>
> Posted in judicial elections <http://electionlawblog.org/?cat=19> | Comments
> Off
> “Should MN disclose individual donors to ballot amendment campaigns –
> like the Marriage Amendment?” <http://electionlawblog.org/?p=19871>
> Posted on June 28, 2011 <http://electionlawblog.org/?p=19871> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> A point-counterpoint.<http://insight.mprnews.org/discussion/258/should-mn-disclose-individual-donors-to-ballot-amendment-campaigns-like-the-marriage-amendment/>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19871&title=%E2%80%9CShould%20MN%20disclose%20individual%20donors%20to%20ballot%20amendment%20campaigns%20%E2%80%93%20like%20the%20Marriage%20Amendment%3F%E2%80%9D&description=>
> Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments
> Off
> Don’t Miss Jeff Rosen’s Attack on the Idea of a Monolithic Conservative
> Supreme Court <http://electionlawblog.org/?p=19868>
> Posted on June 28, 2011 <http://electionlawblog.org/?p=19868> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> A must-read<http://www.tnr.com/article/politics/magazine/90549/legal-conservatism-supreme-court-epstein-scalia-originalism-judicial-restraint>(though subscription required). It is so interesting reading Jeff’s piece
> *after *the result in the campaign finance cases, which *does* show a
> monolithic conservative Supreme Court. I think the answer is that campaign
> finance regulation comports with all three strands of conservatism that Jeff
> identifies: Thomas’s Tea Party conservativism, Kennedy’s libertarianism, and
> the Scalia, Alito, Roberts pro-executive power/pro-business conservatism.
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19868&title=Don%E2%80%99t%20Miss%20Jeff%20Rosen%E2%80%99s%20Attack%20on%20the%20Idea%20of%20a%20Monolithic%20Conservative%20Supreme%20Court&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
> “Bush v. Gore” <http://electionlawblog.org/?p=19865>
> Posted on June 28, 2011 <http://electionlawblog.org/?p=19865> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> It not <http://www.slate.com/id/2297924/> what you think.
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19865&title=%E2%80%9CBush%20v.%20Gore%E2%80%9D&description=>
> Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments
> Off
> “Nevada high court hears special election case”<http://electionlawblog.org/?p=19862>
> Posted on June 28, 2011 <http://electionlawblog.org/?p=19862> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> AP reports<http://www.lahontanvalleynews.com/article/20110628/NEWS/110629904/1055&ParentProfile=1045>
> .
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19862&title=%E2%80%9CNevada%20high%20court%20hears%20special%20election%20case%E2%80%9D&description=>
> Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments
> Off
> “Discriminatory Florida Voting Law Changes Criticized by Non-Partisan
> Groups” <http://electionlawblog.org/?p=19859>
> Posted on June 28, 2011 <http://electionlawblog.org/?p=19859> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> See this press release<http://www.fairelectionsnetwork.com/document/docWindow.cfm?fuseaction=document.viewDocument&documentid=97&documentFormatId=117>
> .
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19859&title=%E2%80%9CDiscriminatory%20Florida%20Voting%20Law%20Changes%20Criticized%20by%20Non-Partisan%20Groups%E2%80%9D&description=>
> Posted in election administration <http://electionlawblog.org/?cat=18>, voter
> registration <http://electionlawblog.org/?cat=37>, voting<http://electionlawblog.org/?cat=31>,
> Voting Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
> “CALL FOR PAPERS: Conference on Major Developments in Redistricting, Oct.
> 14-15, 2011″ <http://electionlawblog.org/?p=19856>
> Posted on June 28, 2011 <http://electionlawblog.org/?p=19856> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Looks like a great event<http://electionlawblog.org/wp-content/uploads/Call-For-Papers-Major-Developments-in-Redistricting.pdf>at Buffalo.
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19856&title=%E2%80%9CCALL%20FOR%20PAPERS%3A%20Conference%20on%20Major%20Developments%20in%20Redistricting%2C%20Oct.%2014-15%2C%202011%E2%80%B3&description=>
> Posted in redistricting <http://electionlawblog.org/?cat=6> | Comments
> Off
> Read the Unanimous (Bipartisan) 32-Page Decision of the Indiana Recount
> Commission in the Charlie White Incident<http://electionlawblog.org/?p=19851>
> Posted on June 28, 2011 <http://electionlawblog.org/?p=19851> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Here.
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19851&title=Read%20the%20Unanimous%20%28Bipartisan%29%2032-Page%20Decision%20of%20the%20Indiana%20Recount%20Commission%20in%20the%20Charlie%20White%20Incident&description=>
> Posted in SOS White <http://electionlawblog.org/?cat=13> | Comments Off
> The Latest on the Wisconsin Supreme Court (Alleged) Smackdown<http://electionlawblog.org/?p=19848>
> Posted on June 28, 2011 <http://electionlawblog.org/?p=19848> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Here. <http://www.jsonline.com/news/statepolitics/124605454.html>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19848&title=The%20Latest%20on%20the%20Wisconsin%20Supreme%20Court%20%28Alleged%29%20Smackdown&description=>
> Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments
> Off
> “Johnson Has Yet To Produce Written $10M Compensation Agreement”<http://electionlawblog.org/?p=19846>
> Posted on June 28, 2011 <http://electionlawblog.org/?p=19846> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> TPM reports<http://tpmdc.talkingpointsmemo.com/2011/06/johnsons-cut-rate-loans-violate-election-law-watchdogs-argue.php?ref=fpblg>
> .
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19846&title=%E2%80%9CJohnson%20Has%20Yet%20To%20Produce%20Written%20%2410M%20Compensation%20Agreement%E2%80%9D&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>,
> chicanery <http://electionlawblog.org/?cat=12> | Comments Off
> Things that Make You Go Hmmm <http://electionlawblog.org/?p=19843>
> Posted on June 28, 2011 <http://electionlawblog.org/?p=19843> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> U.S. Supreme Court Goes on Summer Recess But Leaves Dallas Voting Rights
> Case Hanging.<http://www.ballot-access.org/2011/06/28/u-s-supreme-court-goes-on-summer-recess-but-leaves-dallas-voting-rights-case-hanging/>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19843&title=Things%20that%20Make%20You%20Go%20Hmmm&description=>
> Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
> Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
> “EAC Releases Voter Registration Report”<http://electionlawblog.org/?p=19841>
> Posted on June 28, 2011 <http://electionlawblog.org/?p=19841> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> See here.<http://www.eac.gov/News/default.aspx?ArticleId=848&idevd=4CB7A2A040BA11DFAA6B8BAF55D89593&idevm=77f4c4b3004b4092b0b10f17e0f88087&idevmid=334681>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19841&title=%E2%80%9CEAC%20Releases%20Voter%20Registration%20Report%E2%80%9D&description=>
> Posted in election administration <http://electionlawblog.org/?cat=18>, voter
> registration <http://electionlawblog.org/?cat=37> | Comments Off
> FairVote’s Redistricting Resources <http://electionlawblog.org/?p=19836>
> Posted on June 28, 2011 <http://electionlawblog.org/?p=19836> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> A handy compendium<http://www.fairvote.org/fairvote-s-redistricting-resources>
> .
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19836&title=FairVote%E2%80%99s%20Redistricting%20Resources&description=>
> Posted in redistricting <http://electionlawblog.org/?cat=6> | Comments
> Off
> Democracy 21 Release on Cert. Denial in Green Party Case<http://electionlawblog.org/?p=19834>
> Posted on June 28, 2011 <http://electionlawblog.org/?p=19834> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Here <http://bit.ly/ipJjHd>. See also this release<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=1390:june-28-2011-supreme-court-declines-to-hear-challenge-to-connecticut-public-financing-program&catid=63:legal-center-press-releases&Itemid=61>from CLC.
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19834&title=Democracy%2021%20Release%20on%20Cert.%20Denial%20in%20Green%20Party%20Case&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
> --
> Rick Hasen
> Visiting Professor
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://law.uci.edu/faculty/page1_r_hasen.html
>
> William H. Hannon Distinguished Professor of Law
> Loyola Law School
> http://electionlawblog.org
>
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