Received: 2 January 2017
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Accepted: 2 January 2017
DOI 10.1111/gove.12272
COMMENTARY
Transparency in Trump’s America
Mark Fenster
University of Florida
Transparency’s ascendance as an administrative norm over the past several decades has seemed
unstoppable. No reasonable elected official can publicly disavow openness, while nations throughout
the world have enacted new laws promising a more thoroughly accountable state. Academic and policy
journals teem with articles identifying information disclosure as the solution to political and social
problems.
But does the rise of right-wing populism, redolent of older forms of authoritarianism, mark the end
of what has seemed like a golden age of transparency? The United States, whose 50-year-old Freedom
of Information Act (FOIA) has served as a model for much of the activism that the age of transparency
called forth, might be departing from the long arc of transparency’s ascent under a Trump administration. The new president lacks government experience and appears disinterested in prevailing ethical
and governing norms. And Trump is not alone. Marie Le Pen, Nigel Farage, and before them Sergio
Berlusconi and Vladimir Putin represent a countermovement away from democratic institutions—the
very institutions that are capable of visibility and popular accountability.
And yet Trump and his compatriots among right-wing populists have found political purchase and
electoral success by decrying a lack of transparency. They claim that political and cultural elites have
ignored the democratic will by secretly abandoning national traditions. It is not clear that all of their
supporters in fact share their substantive positions. Many of those who voted for Trump, for example,
did not agree with or even know about some of his stances on key political issues. But they supported
Trump to a great extent because of their belief that the U.S. federal government was no longer accountable and made decisions without their knowledge or consent.
The contrast between the current wave of populism and the open government movement demonstrates that transparency includes at least two meanings. The first is a technocratic, administrative
understanding that laws and regulations attempt to enforce. It focuses on the information a government
must disclose—certain kinds of documents and certain types of meetings most prominently. It offers a
means to measure government performance in terms of the information that is made public and the
ease and speed with which the public can access it. President Obama invoked this meaning in claiming
that his open data initiative and commitment to stem the growth of classified information demonstrated
his administration’s commitment to transparency.
The second meaning is moralistic rather than technocratic. It holds that the state must refrain from
hiding itself and the truth from the public. It eludes quantification and analysis, relying instead on
notions of authenticity and honesty. Trump’s self-presentation—his direct communication via Twitter,
his seeming plain-spokenness and willingness to say often offensive, “politically incorrect” things—
invoked this meaning by suggesting that he hides nothing. (Whether he speaks truth is another matter.)
Hillary Clinton’s use of a personal e-mail server while she served as Secretary of State, by contrast,
suggested that she had something to hide and found an unethical if not technically illegal means to
do so.
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Trump’s candidacy deployed populist rhetoric to criticize existing political institutions for their distance from and invisibility to the public, including the “swamp” of incumbent politicians and lobbyists
and the administrative bureaucracy. He claimed he would replace those institutions with morally
righteous ones and leave a smaller government that would “make American great again.” Trumpland
would be a visible, legible government with which his voters—older, whiter, and more Christian
than Clinton’s and Obama’s—could identify. Trump promised to be morally transparent, if not technocratically so.
Notwithstanding his success in persuading sufficient numbers of voters in key states of his moral
superiority (or, perhaps more likely, of Clinton’s moral inferiority), President Trump is unlikely to perform very well under transparency’s first, technocratic meaning. In his private career, Trump frequently
threatened reprisal and litigation against anyone who exposed his business practices. His hostility to
criticism and apparent distaste for the First Amendment, his penchant for controlling information about
himself, and his never having been subject to public transparency laws in his business career suggest
that his administration will not be more compliant with the spirit or letter of open government laws
than those that came before and may well be less so.
This apparent shift from technocratic to populist transparency reveals something important about
the relationship between transparency’s two meanings. Trump’s populism is not new to politics or to
transparency. Fears of a secretive state have long been a mainstay of populist insurgencies on the left
and right. And transparency’s technocratic success has always had a decidedly populist, moralistic
aspect—a characteristic that advocates forget. Louis Brandeis’s oft-used quote about sunlight serving
as the best disinfectant was part of an early 20th-century populist-progressive movement against private trusts. FOIA’s enactment came after a long political struggle that began in a Congress controlled
by Democrats who opposed a newly elected Republican president. Key FOIA amendments came about
in reaction not only to narrow judicial interpretations of the statute but also to Watergate and revelations of intelligence community scandals.
Transparency advocates who focus on expanding and enforcing technocratic rules can and no
doubt will protest loudly when Trump violates governing norms. And they should deploy the moral
and populist understanding of transparency as they do so. Why? Because, at its core, even the technocratic understanding shares key aspects of that understanding.
The embrace of visibility as a preeminent norm is a political commitment. Democratic theory
also emphasizes other, often conflicting norms. Advocates must persuade legislators, administrators, and the public why information disclosure should be a top administrative priority. These
efforts will inevitably have a populist flavor by invoking the specter of a suspect state and unprincipled officials. Consider, for example, Transparency International’s (TI) anticorruption campaigns
that invoke the image of the thieving official who skims public money or demands bribes. Think
too of celebrated whistleblowers and leakers (from Ellsberg to Manning and Snowden) who risk
imprisonment or exile to expose hidden truths. And consider, finally, FOIA itself, imagined and
presented as a singular means to create a public right that will “free” information from the state’s
clutches.
The ideas behind TI, whistleblowers, and FOIA are deeply moral and inherently political, even
if they are more well grounded in fact and law than Trump’s “Crooked Hillary” routine and his
followers’ “Lock Her Up!” chants. Harold Cross, a key figure in the early transparency advocacy
movement, declared in 1953: “Public business is the public’s business. The people have the right
to know. Freedom of information is their just heritage. Without that the citizens of a democracy
have but changed their kings.” Cross’s words were more refined than Trump’s, and were part of a
book that helped usher in the age of technocratic transparency. Although Trump sounds different
and will not doubt act differently than the movement Cross helped bring about, Trumpland’s
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populist ideology echoes that of the technocratic age of transparency that it may at least temporarily replace.
BIOGRAPHY
MARK FENSTER is the Cone, Wagner, Nugent, Hazouri & Roth Tort Professor at the Levin College of
Law, University of Florida. His book The Transparency Fix: Secrets, Leaks, and Uncontrollable Government Information will be published by Stanford University Press in July 2017.