Transparency in Government —
How American Citizens Influence Public Policy
by Ellen M. Katz
“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 which knowledge gives.”
— former U.S. President James Madison, 1822
Begin text
Letting the Sun In
Requesting Records
Learning About Day-to-Day Operations
Case Studies
How U.S. Federal Agencies Touch Lives
The heart of American democracy — and of any democracy — is meaningful, active
participation by its people in government decisions that touch their lives.
The soul of such a system is the ability of ordinary citizens to hold government
officials accountable for their actions. Known as “transparency,” this essential democratic
process takes many forms, but all allow concerned citizens to see openly into the
activities of their government, rather than permitting these processes to be cloaked in
secrecy.
The principles underlying transparency in government activity are embodied in the
fundamental tenets that have guided the United States since its founding, including the
Declaration of Independence and the Constitution. And, over time, a body of law,
regulation, and practice has grown up that makes it easy for ordinary citizens to have
access to some important meetings of government officials, to request and receive
government documents, and to have input into government decisions and rule-making.
To various degrees, the principles of transparency have taken root at the local, state, and
federal level.
In the United States, transparency in judicial proceedings, much of which evolved from
English common law, has generally provided the right to a public trial. Likewise, the U.S.
Congress has over the course of its history opened itself both to influence from many
groups of citizens and organizations, and to comment from knowledgeable experts,
officials, and citizens during “hearings” on proposed legislation or on important issues.
In addition, transparency can be found at work in the various federal
government.“executive branch” agencies that report to the president of the United States.
From food, to automobiles, to the environment, everyday lives of citizens are touched in
many ways by decisions issued by these agencies. And, increasingly, there are numerous
ways for individuals to have an impact on policy-making procedures of the executive
branch. Some groups attempt to influence all three branches of the federal government —
the judicial, legislative, and executive, simultaneously.
In general, U.S. citizens are free to participate in the political process as much or as
little as they wish. Some people become deeply immersed in causes they believe in, either
as individuals or, frequently, through groups formed to advocate one or more causes.
Others rarely get involved or voice their concerns only when they have individual
concerns.
LETTING THE SUN IN
The most basic way for citizens to hold leaders responsible is by voting in elections
and by serving on juries in open courtroom proceedings. But these are not the only
ways. In the United States and in other democracies, citizens can influence
government on a daily basis, not just on election day. Numerous other opportunities
can, and should, exist to ensure that both elected and non-elected public officials
remain accountable to the people.
In the United States, when executive branch officials get together to conduct
government business, they are often required to announce their meetings in advance
and to hold them in forums that are open to the public. The law underlying this
practice, a federal statute dubbed the “Sunshine Act,” enacted in 1976, makes for
better, more informed decisions. What’s more, the policies that result are perceived
as fairer since they reflect broad input from many interested parties. There are
similar laws throughout the country at the state level.
In many situations, citizens are allowed to not just attend public meetings, but to
comment during the proceedings. For instance, before the Environmental Protection
Agency made a decision on a proposed regulation concerning pollution in 1999, it
held a series of hearings around the country and listened to hours of testimony. At
one session in Philadelphia, Pennsylvania, a citizen named Randy Hester expressed
his feelings, probably shared by many attending the meeting: “As an American, I feel
it’s one of my inalienable rights to have a voice and I’m so very glad to have this
opportunity today.”
A popular way for citizens to express their viewpoints is by writing letters or
sending electronic messages to elected officials. It’s not unusual for members of
Congress (a senator or a congressman) to receive thousands of pieces of mail a day
about a compelling issue. People organized to promote a cause initiate many letterwriting campaigns. These groups can be made up of business, religious, or labor
representatives, or they can be dedicated to issues such as protecting the
environment or human health. They also visit legislators to “lobby” them personally.
Transparency in American government can also be found in the rules imposed on
people who run for public office. By law, candidates who want to be elected to
Congress or the presidency must file detailed reports disclosing how much money
they raise and spend. Candidates are required to disclose all individuals and groups
who give them contributions of more than $200. There is also a law limiting the
amount of money anyone can give directly to a candidate.
Ideally, the purpose of these regulations is to restrict the influence wealthy people
and powerful groups have over politicians. Similarly, financial statements are
required of federal leaders once they are elected or appointed. On these statements,
high officials must disclose the nature and extent of their financial assets to assure
there are no conflicts of interest with the job.
Financial disclosure statements are made available to the public and the media,
which is shielded from government censorship by the First Amendment to the U.S.
Constitution.
Americans use all of these methods of accountability so they can intelligently
exercise their right to vote. And, over the years, thanks both to new laws and
improved access to information, it has become easier for citizens, in particular, to
obtain information from executive branch agencies and to have influence over those
agencies’ actions that affect the public.
REQUESTING RECORDS
Through a federal statute enacted in 1966, Americans can ask for copies of records
maintained by various federal government agencies, departments, and the military.
Since it was enacted, the “Freedom of Information Act” has become an extremely
popular information tool. Historians, journalists, educators, private companies,
citizen interest groups and ordinary people have used this law to examine documents
that would otherwise have been kept secret. Laws that are somewhat similar exist at
the state level.
Over the years, this important law has helped citizens make public records about
events that Americans want to know more about, such as the 1963 assassination of
President John F. Kennedy and the tragic 1986 accident involving the Challenger
spaceship.
Now, the Internet has made reading some of this information even easier.
Many documents are posted electronically by interest groups and the government.
For example, the Federal Bureau of Investigation makes frequently requested
records from its case files available on its Web Site (www.fbi.gov).
“The Freedom of Information Act enables Americans to get greater access to
information on the activities and operations of the U.S. government,” explains
Bernard Fensterwald III, a private attorney who specializes in the field. “It keeps
Americans informed.”
There are several exemptions designed to assure that sensitive information
doesn’t fall into the wrong hands. For example, any record that could compromise
national security or cause an “unwarranted invasion of personal privacy” cannot be
released. And documents belonging to the president, vice president, members of
Congress, and the courts aren’t included in the act, although many of them are
routinely released.
But unless a record meets the legal standard to be withheld, “it must be disclosed
to the public on request,” Fensterwald notes.
Under the Freedom of Information Act, federal agencies may charge filers a
reasonable fee for the cost of searching and copying, although in some cases, the
service is free. Individuals don’t have to disclose why they want records, which can
include printed and electronic material, tape recordings, maps, and photographs.
Even government workers can use the law to ensure that their agencies are
operating ethically. For instance, Public Employees for Environmental Responsibility
(PEER), an organization of government workers, frequently asks for records to
expose potential wrongdoing and malpractice involving environmental issues.
Just the fact that these groups are using their rights publicly to obtain records can
make a big difference. “Filing a request by itself can be enough to stop something
that was proceeding because it was not known,” says Jeff Ruch, executive director of
PEER. Americans also have protection concerning information being held about them
in secret files. Under another law, called the Privacy Act, enacted in 1974, citizens
have the right to see records that the federal government has assembled on them
and request that these be corrected if there are errors.
And under the U.S. Constitution, American citizens can use their right of free
speech to criticize official policy. For example, after obtaining documents about the
protection of wetland areas, PEER wrote a “report card” giving the government poor
“grades” on this particular issue and made it public by releasing it to the media and
posting it on the Internet.
When a group of people from within government speak out about improper or
illegal conduct, they are often called “whistle-blowers” because they bring such
behavior to the attention of the public. These whistle-blowers have specific rights
under U.S. law to be free of reprisals for their actions.
Once retrieved by the public, Freedom of Information Act documents are often
widely shared with other interested citizens. For example, in Pensacola, Florida, a
group of residents obtained federal government records maintained by the Army
Corps of Engineers regarding the environmental impact of a proposed high-rise
condominium on the beach. They then placed 900 pages of information in a
community building for other residents to read. As of this writing, the issue is still
pending, but the community is forcefully representing its interests.
The United States is one of a handful of countries that have a legal right for its
citizens to access such government information. Other countries with similar laws
include Australia, Canada, France, New Zealand, and Sweden.
LEARNING ABOUT DAY-TO-DAY OPERATIONS
Through the Federal Register, a newspaper published every business day, Americans
can read about rules or regulations that federal agencies are proposing before they
are adopted.
Federal agencies are required to publish notices about certain major policy issues
in the Federal Register, and by law, anyone can comment on proposed policy
changes. Comments are usually made in writing, but there are often opportunities to
express an opinion by e-mail or in person during a public hearing.
Each Federal Register notice gives citizens detailed instructions on how to
comment within the usual time limit of 30 to 90 days. The suggestions or criticism
cannot be ignored. When the final regulations are later published in the Federal
Register, agencies must address the comments received from the public and describe
changes made in response to them.
In addition to commenting on an existing regulation, an individual or organization
can file a petition advocating new policies that federal agencies should follow.
Many concerned individuals and organizations scan the Federal Register each day
for items of interest. Copies can be read in public libraries, colleges and on the
Internet (www.access.gpo.gov).
CASE STUDIES
The Freedom of Information Act and the Federal Register are two important tools
that Americans use, increasingly, to foster transparency in government. The
knowledge they receive from these sources frequently translates into changes in
public policy.
Take a look at how citizen groups make a difference in three areas of daily life.
The environment: The mission of the Environmental Protection Agency (EPA) is to
protect human health and safeguard air, water, and land from pollution. One of its
duties involves setting standards to limit the amount of pollution coming from the
tailpipes of motor vehicles.
U.S. citizens involved in conservation groups recently scored a victory in changing
the governmentÕs plans to reduce air pollution. “I think we made a loud public
racket and I think the EPA responded appropriately to that,” says Frank O’Donnell,
executive director of Clean Air Trust, a coalition of environmental organizations.
The case began in the late 1990s when the EPA began discussing more stringent
rules for the emissions coming from automobile tailpipes.
Thousands of comments were received from auto manufacturers, oil companies,
citizen groups, and individuals.
Several conservation organizations urged officials to close a “loophole” involving
sport utility vehicles (SUVs), minivans, and light-duty trucks, which emit more
pollution than passenger cars. When emission and gasoline efficiency standards were
first enacted in the 1970s, these vehicles were exempt from the rules imposed on
automobiles because they were generally used only on farms and construction sites.
But by 1998, SUVs and light trucks accounted for about half of all new vehicle sales
to the public and were used for everyday trips to shop and commute to work.
The EPA issued proposed regulations in early 1999 to impose more stringent
pollution standards on all vehicles. Under the new standards, regular passenger cars
are set to come into compliance by 2004. For the first time, the rules also require
that SUVs and light trucks under 8,500 pounds meet the same standards by 2007.
During subsequent public hearings, numerous citizens and organizations used
their rights to argue that even tougher standards would help the battle against air
pollution. They urged the EPA to also include SUVs over 8,500 pounds in the
regulations, instead of allowing them to be exempt. And they wanted to make
vehicle manufacturers comply with the rules sooner than proposed.
Representatives for the auto industry made a very different public case, testifying
that they couldn’t possibly make the necessary changes before the proposed
deadlines.
In late 1999, both sides scored a partial victory. The EPA announced that the
heavier SUVs would be included in the regulations, but the timetable for making the
changes would remain the same.
Taxes: Like many countries, the United States imposes an income tax on its citizens.
The tax is administered by an agency within the Treasury Department called the
Internal Revenue Service (IRS).
American taxpayers have opportunities to influence the system for collecting
revenue in a variety of ways, beginning with the creation of tax legislation. The
actual tax laws are written by members of Congress and signed by the president
after much debate and testimony from citizens, businesses, and lobbying groups.
The entire set of laws is referred to as the Internal Revenue Code, but it is just
one part of the tax world. The IRS issues regulations that interpret the laws in
greater detail. The entire system is quite complex, with nearly 50,000 pages of laws
and IRS regulations that are available to the public on the IRS web site
(www.irs.gov).
As part of its duties, the IRS creates tax forms for citizens to fill out to report their
income. The agency also writes publications provided free to the public explaining
the laws.
Even after tax legislation is passed, U.S. citizens can have an influence on how it
is applied. For example, in 1998, a law was passed providing assistance to divorced
and separated people who are sometimes held responsible for the tax debts of their
former spouses.
As part of its customary practice, the government asked for comments on how to
best implement the law. The National Taxpayers Union, a citizen organization,
submitted suggestions on ways the IRS taxpayer forms and instructions could be
made less complex for these “innocent spouses,” according to its spokesman Pete
Sepp. When the revised taxpayer IRS forms came out in 1999, they included easyto-understand sections answering frequently asked questions on this issue. The IRS
also added a new taxpayer publication to its library called Innocent Spouse Relief.
The National Taxpayers Union was pleased with the changes, Sepp says, although
they didn’t include everything the organization asked for. “But the entire policymaking process is a matter of compromise and settling for what is satisfactory rather
than striving for what is perfect,” he explains.
Besides, Sepp points out, there will be opportunities in the future to suggest
further revisions to the forms. “Change is often made in incremental steps,” he adds.
In addition to creating tax forms, the IRS has the job of collecting money from
citizens. This means that each taxpayer’s return form is studied for accidental or
deliberate miscalculations. The final stage of the process is when the agency
examines or “audits” some taxpayers because it suspects errors or cheating.
Although the exact formula the IRS uses for deciding which taxpayers are audited
is a secret, citizens have been given some insight into the audit selection process. In
fact, one organization, called the Transactional Records Access Clearinghouse (TRAC),
devotes itself entirely to obtaining data from the IRS and other agencies to ensure
the system remains equitable.
“Fairness is an essential component of enforcement because without it, public
support for a program can easily evaporate, forcing the government to spend more
and more of its revenues on coercive efforts to force compliance,” explains Sue Long,
the co-director of TRAC, which is associated with Syracuse University in New York.
In one of its efforts, TRAC filed Freedom of Information Act requests and
discovered that taxpayers in some regions of the country are audited more often
than those in other U.S. regions. When the sensitive data was made public, it was
discussed extensively in Congress and the media.
This is a classic example of a group using its legal rights to promote transparency
in government. “The variations uncovered in the agency’s own data are considerable
and the American public is fully justified in asking why,” Ms. Long says. “The IRS has
an obligation to provide a no-nonsense answer.” Although the final resolution is still
pending the matter has been ventilated in public. Even as organizations like the
National Taxpayers Union and TRAC continue to monitor and influence the IRS, the
tax agency itself began a program recently to receive more citizen input. Around the
country, groups of volunteers called “Citizen Advocacy Panels” now meet to identify
problems and make recommendations.
“The IRS will benefit greatly from a fresh perspective on our service as seen
through our customers’ eyes,” says IRS Commissioner Charles O. Rossotti.
Food and drugs: The U.S. Food and Drug Administration (FDA) regulates drugs,
medical devices, food, and cosmetics to make sure they are safe and pure. The
agency is part of the Department of Health and Human Services.
Part of the FDA’s job is to ensure that consumer products are labeled truthfully.
This mandate resulted in a major regulatory change recently that affects nearly all
Americans.
The FDA took action after it received numerous complaints about the labels on
non-prescription or “over-the-counter” drugs, such as aspirin and cough syrup that
are dispensed in stores without a doctor’s prescription. Consumers found the wording
on the packages of some of these medicines difficult to understand. Elderly people
had an especially hard time reading the tiny, compressed type.
Consequently, the FDA issued new mandatory regulations for drug makers. The
rules, which gradually phase in until 2005, were written after more than 2,000
comments from citizen groups and industry representatives were analyzed by the
FDA. They require instructions on medicine to be in large type and obligate drug
companies to include clear warnings about possible dangers on the bottle.
Warnings on a label can even wind up on something as simple as snack foods as a
result of public pressure on the FDA. In another case where transparency in
rulemaking made a difference, citizens were able to persuade the government to
place a notice on the packages of certain potato chips and other snack foods
containing a fat substitute called Olestra. After 10 years of deliberations, the FDA
had approved Olestra for use in 1996 after determining it was safe. Many consumers
wanted to buy products with the “fake fat” because they were low in calories. But
some health advocacy groups and medical representatives testified in public hearings
that the substance should be banned because it might cause gastrointestinal
problems.
As part of the approval, the FDA required manufacturers to include a warning on
the back of all snack packages containing Olestra. Consumers are cautioned that the
product may cause “abdominal cramping” and other side effects.
The FDA regulations involving Olestra and the other case studies cited here
illustrate how the American system of public policy works. Citizens have the right to
know about the activities of their government and they can use the information to
influence decisions that affect their lives, both in small and large ways. People in the
United States know that transparency in government, as practiced in the real world,
has its flaws, including the fact that permitting ordinary citizens to influence the
government regulatory process can be slow and even expensive. But, as Thomas
Jefferson, the primary author of the Declaration of Independence, put it in 1791: “I
would rather be exposed to the inconveniences attending too much liberty than to
those attending too small a degree of it.” Most Americans, like Jefferson, believe that
allowing the sun to shine on government activities is worth these drawbacks. In
return, U.S. citizens receive the benefits of a transparent, participatory democracy.
HOW U.S. FEDERAL AGENCIES TOUCH LIVES
Within the federal government, there are 14 executive departments, which are
further divided into agencies with specific duties. There are also more than 100 other
independent federal agencies regulating many aspects of life.
Each is diverse in size and mission, and in some cases, their responsibilities
overlap.
Here are brief descriptions of some major federal agencies, all of whose
rulemaking proceedings are open to public comment:
Consumer Product Safety Commission — helps protect the public from injury
caused by consumer products.
Federal Communications Commission — regulates television, radio, wire, satellite,
and cable communications.
Federal Emergency Management Agency — provides assistance to citizens and local
government agencies to help reduce loss of life and property during disasters such as
hurricanes, earthquakes, and fires.
Federal Trade Commission — promotes free and fair trade competition in the
American economy.
National Highway Traffic Safety Administration — sets and enforces safety
standards for automobiles to help prevent injuries and death in crashes.
Occupational Safety and Health Administration — protects the health of American
workers on the job by setting standards for employers to follow.
Securities and Exchange Commission — responsible for protecting the public
against malpractice in the stock market and other financial markets.
Small Business Administration — lends money to business owners and provides
financial assistance following natural disasters, including hurricanes and floods.
Provides support to businesses operated by women and minorities.