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06 December 2006
Shedding Light on Corruption
By Donald F. Kettl
Although it may be impossible to eliminate corruption in the United States, regulations against corrupt practices and legislation to increase government transparency have reduced corruption by examining government closely to weed out waste, fraud, and abuse. Freedom of information and "sunshine" laws are two of these important anticorruption tools. Author Donald F. Kettl is director of the Fels Institute of Government at the University of Pennsylvania and author of System under Stress: Homeland Security and American Politics, second edition (2007).
Americans have long employed two very different approaches to fighting corruption. The first—and the one with the deepest roots—is regulation. If there is a practice that citizens or elected officials find unwise or distasteful, the instinct has long been to write a rule against it. This has led to a proliferation of rules, sometimes with a whole regulatory apparatus growing to prevent the repetition of a single problem.
The Watergate investigations into the Nixon administration's use of presidential power in the 1970s stimulated a second broad approach to fighting corruption. Rules alone did not prove enough to prevent widespread abuses of executive authority. Moreover, many reformers were deeply concerned about both the concentration of executive power and the veil of secrecy that often enshrouded its use. Congress sought to reduce corruption through several new programs aimed at increasing transparency.
It is impossible, of course, to eliminate corruption. There are many opportunities for steering public processes in ways that distort public purposes for private gain, and it is impossible to eliminate it by rule. But, as the American approach of the 1970s suggested, it might be possible to reduce it by opening up government's doors, by shining a bright light inside, and by empowering investigators to examine government closely to weed out waste, fraud, and abuse. This approach has deep roots in American political tradition, and it echoes what James Madison, fourth president of the United States, wrote in 1822: "A popular Government without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors, must arm themselves with the power knowledge gives."
Freedom of Information
One of the most important elements of this strategy is the Freedom of Information Act (FOIA). First passed in 1966, FOIA establishes that government documents are, at their core, the possession of the people and that the people have a right to view them. The act switches the traditional burden of proof from a presumption that documents were private unless citizens could establish a basis for seeing them, to a presumption that documents were public unless government could establish a basis (such as national security and personal privacy) for keeping them private. Perhaps even more important, FOIA established the foundation on which subsequent reforms were built: that citizens had a right to know about their government and what it was doing.
A companion law, the Privacy Act of 1974, established that citizens had a right to view the information that the government had collected about them. The Federal Bureau of Investigation, for example, had kept substantial files on some individuals. Critics charged that the bureau had violated the individuals' rights in collecting the information, that the information might have been false, and that the government might use the information against them without their knowing about it. Under the Privacy Act, citizens could obtain copies of such government files and, if necessary, challenge the accuracy of information within them. The act also restricted the government's ability to disclose personal information about citizens. Together, FOIA and the Privacy Act not only established the legal basis for the government's transparency policy but also required government agencies to write clear guidelines on how they would implement them, so that the transparency policy itself was transparent.
Government Transparency
Congress followed in 1976 with the Government in the Sunshine Act. With a handful of exceptions, mainly for national security and personal privacy, the law requires government meetings to be open to the public. Public agencies must give advance notice about upcoming meetings and their agendas, and they must keep public records about the meetings' results. In addition, the act carefully defines a "meeting," to prevent groups of government officials gathering to make decisions while claiming that it was not an official meeting.
Two years later, Congress added the Inspector General Act, which created high-level officials in each federal agency to conduct independent audits and investigations. These inspectors general had broad power to explore agency operations, and they had authority over their own budget and staff. The administration of President Jimmy Carter had promoted the act. When Ronald Reagan succeeded him, he dismissed all 16 inspectors general, which led to widespread concern that he would not be tough on government waste. He countered by reappointing five of the inspectors general, naming 11 new officials, and saying that each one would be "meaner than a junkyard dog." The inspectors general have often produced tough reports on big issues, from mismanagement of the federal government to difficulties in contract administration. Their sharp words have often stirred deep political conflict, but they remain an important part of the federal government's transparency policy, despite many opportunities to undermine their role.
These are all federal government initiatives, and their requirements apply only to federal agencies. However, most individual state governments in the United States have adopted similar legislation (and state rules generally govern the operation of local town and city governments). Since the 1970s, transparency has become as important as regulatory approaches in the American effort to reduce corruption.
Other Issues
Of course, firm policies do not always produce the desired reality. Government officials have been convicted for using their professional positions for personal gain, including efforts to secure future employment at businesses with which they had negotiated contracts and to receive kickbacks on other deals. The inspector general staffs remain relatively small in comparison with the size of the activities they are overseeing. That means they must, inevitably, target some issues over others, and that has led to charges that they miss some problems and sometimes choose others to focus on for political reasons.
Moreover, these transparency measures are costly because they make the administrative process more cumbersome. Agencies have had to create new staffs charged with reviewing citizen requests for files and information. They have had to establish new procedures for publicizing their work and their results, and the advance notice requirements of the Sunshine Act make it harder for agencies to act quickly, since every meeting must first receive advance public notice. Furthermore, transparency has not reached everywhere in government. The judicial branch, especially at the federal level, has resisted some of the transparency movement, especially in television broadcasts of oral arguments and decisions.
Nevertheless, the rise of the transparency movement in American government has largely had positive results. It helped restore trust in government and its processes following the turmoil that accompanied the Watergate investigation of the early 1970s. It has increased civic engagement in government. Even critics would grudgingly admit, despite the procedural difficulties that it creates, that more transparency has improved the overall level of deliberation in the process. Transparency has not replaced regulation as the first bulwark against corruption and it has not eliminated corruption, but it certainly has made the process democratically more robust.
The opinions expressed in this article do not necessarily reflect the views or policies of the U.S. government.
