How Change Happens

by Cass R Sunstein

  Within the federal government, what is true for the regulatory process is true for many discussions—but even more so. The volume of emails is extraordinarily high. As in the case of the hypothetical assistant secretary, they might float ideas, offer tentative reactions, report on what some people appear to think. In general, disclosure would serve no purpose at all, except perhaps to those interested in genuine minutiae or those seeking to embarrass, injure, or ruin someone, to create a political uproar, or to uncover some kind of scandal.

  Two Qualifications

  There are two principal qualifications, and they help explain the appeal of input transparency for many observers. It must be acknowledged that in some administrations, these qualifications will have, or will be perceived to have, a great deal of power. In corrupt or incompetent administrations, their power increases significantly.

  Illegitimate or Illicit Arguments

  Public disclosure might provide an ex ante deterrent to arguably illegitimate arguments, and it might also provide an ex post corrective. At the very least, it lets the public know how it is being governed. In the worst cases, inputs include corruption or criminality, and We the People are certainly entitled to learn about that.

  Suppose, for example, that someone opposes a decision not because it is a bad idea but because it would offend a donor or a powerful interest group, or because a prominent senator might object (with unfortunate consequences for the administration). That sort of thing is not exactly unusual, and it is hardly the worst imaginable input. Let’s stipulate that such an argument is objectionable, or at least that the public has a right to know about it, because it might compromise the pursuit of the public interest. Disclosure could make it less likely that such opposition will be voiced, which could be a good thing, and in any case it will create accountability. In this particular respect, an appealing argument about the beneficial effects of sunlight applies to input transparency as well as output transparency. That argument is all the stronger in cases of more egregious inputs. (Readers are invited to use their imaginations, or to consult history.)

  To be sure, disclosure could have the principal effect of shifting the locus of the opposition—from email and paper to telephones. Within the federal government, that already happens a great deal. If people do not want their communications to be disclosed to the public or to Congress, they will say, “Call me.” (In my own experience, this was always innocent; it did not involve anything illicit, but it did involve issues that were somewhat sensitive, such as strong disagreements that are not best placed in email.) Actually there is a substantial risk here. If internal discussions are potentially subject to disclosure, the shift from written to oral exchanges may impose losses, in the form of diminished reliance on careful economic, legal, and other analyses. Nonetheless, it is true that disclosure of inputs can have the beneficial effect of “laundering” them, or making everything cleaner.

  There is no question that a concern about illegitimate or illicit inputs animates the argument in favor of input transparency. Suppose that you believe that some process is corrupt, ugly, or “rigged”—that regularly or as a matter of course, powerful private interests are dominating federal processes or that officials, beholden to certain interests and groups, are pushing outcomes in the directions favored by those groups. Of course you want that to stop. But if you cannot stop it directly, you might insist on input transparency as a way of opening it up to public view. Sunlight might be a disinfectant here as well.10

  True, there is a risk that you will simply drive the relevant influences underground. But in principle, that is a secondary concern. You want to open up internal processes to public scrutiny. To say the least, that is an honorable goal. For those for whom the Watergate scandal is salient, the transgressions of President Richard Nixon are a defining example, and a degree of input transparency was necessary to ferret out those transgressions.

  Learning from Mistakes

  The second qualification is that journalists and historians can benefit from seeing the give-and-take, if only because they could give a narrative account of what happened. That might appear to be an abstract, academic benefit, but people (including public officials) do learn from the past, and that learning can provide a valuable corrective. The historical record can be absolutely indispensable for finding out what went wrong, and to understand that record, inputs are necessary. Why did the government make some colossal error, in the form of an action or an omission? To answer that question, input transparency might be essential. It can create warning signs about group interactions that work poorly, about institutional blindnesses, about the need for institutional reform.

  Suppose, for example, that the United States government has done (too) little to prevent genocide.11 It may be difficult or even impossible to document failures without access to inputs. Once the failures are documented, people might take steps to reduce their likelihood in the future. In that sense, the benefits of input disclosure can be high, at least in certain domains.

  But there are countervailing points. In many cases, disclosure of inputs has no benefits; it does not reduce the risk of future errors. Disclosure also imposes a risk of distortion. Suppose that people have access to an official’s emails—say, the emails of an assistant administrator at the Environmental Protection Agency or of the assistant attorney general for civil rights. Suppose that the email has some complaint about the EPA administrator or about the attorney general or about White House officials. The email might reflect a particular day or mood. It might be based on the author’s incomplete understanding. It might be a matter of venting. It might reflect a badly distorted perspective.

  Because journalists often enjoy and benefit from accusations and scandal mongering, it might be appealing to give a great deal of publicity to this revelation of internal disagreement. Recall that it is a form of gossip. Readers might enjoy the gossip, and in that sense benefit from it, but accusations and scandal mongering are not necessarily genuine benefits for the public. A genuine scandal is another matter.

  The Costs of Input Transparency

  For input transparency, the most obvious problem is that disclosure could reduce open-mindedness and discourage candor. In a short space, James Madison captured some of the essential points. His views were reported in this way:

  It was … best for the convention for forming the Constitution to sit with closed doors, because opinions were so various and at first so crude that it was necessary they should be long debated before any uniform system of opinion could be formed. Meantime the minds of the members were changing, and much was to be gained by a yielding and accommodating spirit. Had the members committed themselves publicly at first, they would have afterwards supposed consistency required them to maintain their ground, whereas by secret discussion no man felt himself obliged to retain his opinions any longer than he was satisfied of their propriety and truth, and was open to the force of argument. … [No] Constitution would ever have been adopted by the convention if the debates had been public.12

  In any deliberative process, people’s opinions are various and crude, and much is “to be gained by a yielding and accommodating spirit.” Once people commit themselves publicly, they might not be willing to shift. Secrecy can promote openness to the force of the argument. And so Madison’s knockout punch: “No Constitution would ever have been adopted by the convention if the debates had been public.”

  What Madison did not emphasize is that input transparency can lead people not to say what they think. It can reduce candor and the free play of ideas. In that sense, it can ensure that groups will have less information than they need. In well-functioning deliberative processes, there is often a sharp separation between an idea-generating phase and a solution-finding phase. In the former phase, many things are on the table, even if they turn out on reflection to be absurd or intolerable. People say “yes” to getting ideas out there regardless of whether there is any chance that they will be adopted. If inputs are transparent, the idea-gener
ating phase may be far more constrained than it ought to be.

  Ensuring candor is the central idea behind the notion of executive privilege.13 At best, input transparency will lead people to communicate orally rather than in writing. And in fact, one of the consequences of FOIA is to reduce reliance on email and written documents. In both Republican and Democratic administrations, it is well-known that whatever is put in writing might find its way into the New York Times—which leads people not to put things in writing. At worst, input transparency can lead certain things not to be said at all.

  But reduced candor is not the only problem. In view of the incentives of the media and political opponents, disclosure of inputs can produce extremely unfortunate distractions, destructive to self-government. Instead of focusing on outputs—on how, for example, to reduce premature deaths—a spotlight is placed on comments that seem to make some people into villains or wrongdoers or that put any resulting decisions in the least favorable light. Skeptics might respond, with some passion, that it is paternalistic or worse to deprive members of the public of information on the ground that they will misunderstand it or give it undue salience. On one view, receipt of true information should be subject to the marketplace of ideas. But insofar as the problem lies not in public misunderstanding but in the incentives of those who seek to fuel fires, there is definitely a downside risk.

  An Accounting

  With respect to input transparency, we seem to have incommensurable values on both sides of the ledger, not easily placed along a single metric. The benefits are often low—but not always, especially when illicit motivations, corruption, and criminality are involved and when the historical record can help to avoid massive or catastrophic mistakes. The costs can be high. But are they always?

  It must be acknowledged that the costs of input transparency diminish over time, and they are certainly lower once the relevant people no longer hold public office. It is one thing to tell the director of the Office of Management and Budget that whatever she says will end up in the newspaper that night or the next day. It is quite another to say that at a future date (say, after an administration has ended), there will be a public record of internal communications, subject to safeguards for national security, personal privacy, and other values. And indeed, the Presidential Records Act14 ventures an approach of this sort (with a five-year gap). With such an approach, the costs of disclosure are significantly reduced. They are not zero, because candor will be chilled and because people’s reputation will be wrongly maligned. But in view of the value of obtaining some kind of historical record, that approach is hardly unreasonable. My aim has not been to reach a definitive conclusion about concrete practices and proposals but to outline general concerns to help identify the appropriate trade-offs.

  There is a large difference between output transparency and input transparency. For outputs, transparency can be exceedingly important. A central reason is that the government often has information that people can actually use, perhaps to make life more navigable, perhaps to avoid serious risks. It should not keep that information to itself. Another reason is that sunlight can operate as a disinfectant. And whether the information involves the government’s own performance or the performance of the private sector, disclosure can spur better performance.

  One implication is the immense importance of continuing with, and amplifying, the work of data.gov. It also follows that in numerous contexts, government should not be waiting for FOIA requests; it should be disclosing information on its own. This does not mean that every output should be made available online. But it does mean that whenever an output could or would be valuable to members of the public, it deserves to be made public. For the future, we should expect significant developments in this direction, with a significant increase in automaticity.

  Inputs belong in a different category. Outside of unusual circumstances, what most matters is what government actually does, not who said what to whom. For the most part, the public is unlikely to benefit if it learns that the assistant secretary of state disagreed with the chief of staff or the secretary of state on some trade agreement, or that there was an internal division over how aggressively to regulate greenhouse gases. Disclosure can also have significant costs. Most obviously, it can lead people to silence themselves or to communicate in ways that cannot be recorded. More subtly, it can divert attention from the important question, which involves policy and substance, to less important ones, which involve palace intrigue. At the same time, input transparency can put a spotlight on questionable, illicit, or corrupt practices and also can provide an indispensable historical record. People learn from the past, and for current administrations it can be essential to have a concrete sense of where past administrations went wrong.

  My framework throughout has been welfarist; it asks about the costs and benefits of disclosure. It should be acknowledged that the very idea of welfarism needs to be specified and that many people would start with different foundations—involving, for example, the idea of political legitimacy. It should also be acknowledged that under a welfarist framework, some output transparency does not make much sense, and some input transparency is amply justified, even indispensable. We are speaking of categories, not individual cases. But categories provide orientation. Output transparency should be the central focus of efforts for freedom of information. We need much more of it. Input transparency can be important, especially after an administration has ended; but it should be treated far more cautiously.

  Notes

  1. See Amartya Sen, Poverty and Famines (1981).

  2. See Amartya Sen, Development as Freedom (1999).

  3. Transparency and Open Government, 74 Fed. Reg. 4685 (January 29, 2009).

  4. For a 2016 account, see Corey Zarek, Agencies Continue to Deliver on Day-One Commitment to Open Government, White House Blog (July 14, 2016), https://www.whitehouse.gov/blog/2016/07/14/agencies-continue-deliver-day-one-commitment-open-government.

  5. Louis D. Brandeis, Other People’s Money 92 (1914).

  6. For evidence, see Archon Fung et al., Full Disclosure (2008).

  7. Archon Fung & Dana O’Rourke, Reinventing Environmental Regulation from the Grassroots Up: Explaining and Expanding the Success of the Toxics Release Inventory, 25 Envtl. Mgmt. 115 (2000).

  8. See Partha Deb & Carmen Vargas, Who Benefits from Calorie Labeling? An Analysis of Its Effects on Body Mass (Nat’l Bureau of Econ. Research, Working Paper No. 21992, 2016), http://www.nber.org/papers/w21992.

  9. See Fung et al., supra note 6.

  10. Senator Elizabeth Warren, Speech at Administrative Conference of the United States: Regulatory Capture Forum (March 3, 2016), https://www.warren.senate.gov/files/documents/2016-3-3_Warren_ACUS_Speech.pdf.

  11. Samantha Power, “A Problem from Hell”: America and the Age of Genocide (2002). By the way, I like this book a lot, and I have learned a great deal from its author.

  12. Max Farrand, The Records of the Constitutional Convention of 1787, vol. 3, 367 (1911)

  13. See United States v. Nixon, 418 US 683 (1974).

  14. 44 USC §§ 2201–2207 (2012).

  13

  Precautions

  All over the world, there is keen interest in a simple idea for regulation of risk: In cases of doubt, follow the precautionary principle.1 Avoid steps that will create a risk of harm. Until safety is established, be cautious; do not require unambiguous evidence. In a catchphrase: better safe than sorry.

  In ordinary life, pleas of this kind seem quite sensible—indeed, a part of ordinary human rationality. It can be hazardous to interfere with natural processes, and we often refuse to alter the status quo because of a salutary fear of adverse side effects. Shouldn’t the same approach be followed by rational regulators as well? Many people think that it should. For that reason, the precautionary principle has been an organizing principle for social change. In Europe, the United States, and elsewhere, the principle is often invoked by people who seek to strengthen pro
tection of the environment, to safeguard nature, and to diminish risks to health and safety. At many times and in many places, the principle has been a beneficiary of social cascades. It has spread rapidly. Enclave deliberators often invoke it—and attempt to convince others that it provides a good framework.

  My central claim here is conceptual. The real problem with the precautionary principle in its strongest form is that it is incoherent; it purports to give guidance, but it fails to do so, because it condemns the very steps that it requires. The regulation that the principle requires always gives rise to risks of its own—and hence the principle bans what it simultaneously mandates. I therefore aim to challenge the precautionary principle not because it leads in bad directions, but because, read for all that it is worth, it leads in no direction at all. The principle threatens to be paralyzing, forbidding regulation, inaction, and every step in between. It provides help only if we blind ourselves to many aspects of risk-related situations and focus on a narrow subset of what is at stake. Protection of nature often makes sense, but the precautionary principle is not a helpful way of identifying when, and how much, protection of nature makes sense.

  If all this is right, how can we account for its extraordinary influence—and indeed for the widespread belief that it can and should guide regulatory judgments? We should acknowledge its possible pragmatic value, countering insufficient concern with some kinds of risks. Sometimes it spurs needed efforts to save lives and improve health. Undoubtedly the principle is invoked strategically by self-interested political actors, with European farmers, for example, invoking the idea of precaution to stifle American competitors, who are far more likely to rely on genetically modified crops. But apart from these points, I suggest that an understanding of human rationality and cognition provides useful clues. An appreciation of behavioral findings simultaneously sheds light on the operation of the principle, explains its otherwise puzzling appeal, and suggests why it should be abandoned or at least substantially recast. Indeed, such an understanding provides a better understanding of the uses and pitfalls of the old adage “better safe than sorry,” which is subject to many of the same objections as the precautionary principle.