Bacon's Promise

Those of us who oppose allowing Internet service providers to impose tolls on users wanting to use higher broadband transmission speeds are rowing upstream.  This is not only because powerful interests—among them, AT&T, Verizon, and cable companies—want to exploit U.S. policy’s current treatment of Internet access as a commercial commodity, rather than a public utility.

We are also rowing upstream because we are caught in a seemingly inexorable current spreading proprietary capture of the public sphere, a current that has flown with increasing amplitude through Washington since the 1980’s. This is the first of three interrelated posts examining the continuing private enclosure of the public ‘commons’ in this country.

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Shane, Jack Schaefer’s much loved 1949 novel, was brought to movie theaters in 1953 by George Stevens and starred Alan Ladd.  The film was inspired by the Johnson County, Wyoming range war of 1892.   That conflict, which required the U.S. Cavalry to ‘resolve,’ climaxed years of violence among the region’s homesteaders, owners of open ranging cattle, and ranchers who unfurled barbed wires for miles to keep those cattle out.

We now find ourselves in the midst of a new enclosure movement.  While not lending itself to novels and films, it is changing this country’s political economy in ways no less historic and profound.  Unlike prairie grass, what is being enclosed is invisible.  Its absence is unlikely to be missed until the political, cultural, and economic consequences of its loss are felt.

Slowly being enclosed behind proprietary fences today is public information necessary to policy debate.  Paralleling this new enclosure is the gradual proprietary capture of publicly developed intellectual capital vital to our material progress.   With the election in 1980 of Ronald Reagan the nation transitioned from a democracy of citizens toward “monetized democracy,” a transition implicit in  the widespread and generally bi-partisan belief that democracy and free-market capitalism are mutually inseparable.   The currency of this new political economy is information.

Since the mid-20^th century public access to government information in the United States has been protected by ‘sunshine’ or open-access laws.  Their foundations were laid in the 1940s during the federal government’s rapid expansion in response to the demands of the Great Depression and World War II.  Ten years in the making, the Administrative Procedures Act of 1946 sought to ensure openness and transparency in the operations of dozens of federal agencies.

The Freedom of Information Act of 1966 (et. seq.), which began life as an amendment to the 1946 legislation, has served as a model for similar state laws.  A companion measure, the Federal Advisory Committee Act (FACA) of 1972, arose from fears first voiced in the 1950s that industry groups and well-heeled political donors were capturing policy-making behind closed doors in secret federal ‘advisory committee’ meetings.

That such fears were justified was publicized in 2002 when the press reported that 18 of the energy industry’s 25 most generous donors to the 2000 Republican presidential campaign met with Vice-President Cheney’s energy task force, which subsequently produced a supply-side energy policy favoring more oil and gas drilling, along with construction of well over a thousand electric plants powered largely by coal.[i] A federal appeals court ruling in May, 2005 accepted Cheney’s argument that the FACA did not apply to Cheney’s visitors from the oil, coal and gas industries, who were not technically members of the energy task force.

In an earlier FACA case involving the Clinton administration’s National Health Care Reform task force, the White House asserted that the FACA did not apply to its meetings because “the working group was so massive, fluid, and disorganized, that it lacked the structure, organization, and fixed membership that are essential to a FACA committee.”[ii] In 1994, before the federal district court could try the case, the White House mooted it by publicly releasing all the working group documents.  In both instances technical readings or applications of the FACA weakened the ostensible intent of the law, which was to reduce the disproportionate power of insiders to influence the shaping of policy choices.

The belief that greater “sunshine” over the operations of government would ensure greater participation in policy-making has turned out to be naive.  The effectiveness of the FOIA and the FACA at ensuring openness is necessarily limited, since government lawyers’ clients have deeper pockets than most “sunshine” litigants—unless they happen to be large institutions not favored by the current administration—and are well-equipped to argue government secrecy cases on technicalities (e.g., when is a First Lady a federal employee?).  And there is always the possibility that the government will settle a case without acknowledging wrong, and insist on a silencing “gag” order on plaintiffs in a settlement.  To paraphrase former Secretary of Defense Donald Rumsfeld,  “we will never know what we didn’t know or don’t now know.”

Yet powerful commercial or political interests have no monopoly on subverting openness in the conduct of the people’s business, or imaginative ways in doing so.  In 1997 the Supreme Court let stand a lower court ruling that the 600-odd advisory committees operated by the federally chartered National Academy of Sciences are not subject to the FACA.  Yet most, of the Academy’s work is funded primarily by tax dollars through contracts with federal agencies, much of which is accomplished by convening and operating advisory committees of scientific experts. (The definition of ‘advisory committee’ rests on its non-operational or non-executive functions.)

The Academy argued—as do most claims for exemption from the FACA’s open meeting requirement—that advisors must feel free to give candid advice to the President and government officials.  Many observers accept this argument—thus revealing the extent to which the precept of ‘attorney-client privilege’ has migrated into government officialdom, which is historically rich in attorneys.[iii]

But one must ask:  Setting aside genuinely private or national security matters, what sort of knowledge necessary for informed government action should not, could not, or ought not, be made public?  Are we citizens not the ultimate clients for any substantive policy discussions occurring in our name?  What ethical or judicial code enshrines the notion that candor and honesty require concealment?

This trend has also been accompanied by the enclosure of a democracy’s other essential asset:  the proprietary capture of public intellectual capital.  (See following post, The New Enclosure-Part II).

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