Originally published in The New Hampshire Bar News
Secrecy and transparency are pervasive concepts in American political discourse. Consider how many stories about private e-mail servers and federal tax returns have invited pundits and citizens alike to speculate, “What are they hiding now, and why?” In “The Transparency Fix,” law professor Mark Fenster explores the legal, political and cultural issues surrounding government transparency and secrecy.
Generally organized into three parts, Fenster’s latest monograph raises uncomfortable questions about the American public’s relationship with government information. In Part I, Fenster recounts the history of legislative efforts to deal with the transparency issue, and the political debate that created freedom of information and right-to-know laws. Even today, the debate usually pits transparency advocates against government officials warning of the dangers of disclosure. Fenster offers an in-depth framing of each camp’s arguments and considerations. In Part II, he widens his lens on the debate to critique the model implied by both sides. Both sides envision information as something of value that can be controlled and imagine a perfect system can fix the disclosure problem; we just need the proper balance of interests, the proper legislative framework, the proper judicial application. Pulling from a variety of disciplines, Fenster comprehensively explains why this model is wrong. Part III includes several case studies on government transparency. Characters such as Chelsea Manning, Edward Snowden, and Julian Assange feature prominently, as do a few older examples, such as Daniel Ellsberg.
Most literature on freedom of information and right-to-know legislation advance one side of the argument – either for or against transparency and disclosure. Fenster distinguishes The Transparency Fix with a thorough impeachment of each side’s position. Transparency advocates, for example, assume that disclosure will have some tangible effect: that the American public has the ability and interest to process, analyze, and respond to information disclosed in such a way that changes the government’s conduct. “Based on what?” Fenster asks. Similarly, Fenster discusses the notable lack of evidence (at least public evidence) to substantiate the government’s common but vague criticism that disclosure of certain information threatens lives and weakens essential intelligence-gathering processes.
Though heavy on the political philosophy and theory in the first few chapters, Fenster incorporates plenty of contemporary and real-world material throughout the work to justify his conclusions. Readers are cautioned not to expect reform proposals or solutions in this book. Admittedly, Fenster focuses on describing the problems and inconsistencies apparent in the transparency debate, rather than advocating any particular solution. Thanks to the breadth and variety of sources, the reader will learn something new regardless of one’s position in the transparency debate. For those interested in the intersection of political and legal, Fenster cites statistics, policies and case studies from every federal administration since the 1970s.
Overall, the book is more thought-provoking than other literature on the topic. In part, this is because of Fenster’s willingness to shine unflattering light on both sides of the debate, but also because of Fenster’s cynical observations about the current state of our republic. Though “The Transparency Fix” invites disillusionment over what we want and care about as a democratic society, it is a laudable addition to published work on the subject.