THE PREDICTABLE NEXT STAGE IN HILLARY SHILLING:
As the revelations about Hillary Clinton’s e-mail practices have mounted, her supporters have hit on a counterintuitive defense: perhaps she shouldn’t have had to disclose them anyway. This argument basically has three prongs:
In this day and age, e-mails are basically like phone calls, and we don’t make officials keep copies of their phone calls.
The Freedom of Information Act is outdated.
Officials need to be able to speak frankly in order to do their jobs, and therefore we should dial back on forcing them to cough up the written evidence of their deliberations.
The first argument doesn’t really work. Did we exempt phone calls because we wanted to give officials a safe harbor from public scrutiny, or because they’re really hard to file, index, and search? Now that we have the digital tools to do that, maybe this is an argument, not for exempting e-mails from disclosure requirements, but for including phone calls and meetings.
To be sure, it’s hard to get anything done under 24-hour surveillance. People need to be able to say things that may get the public angry at them. As my Bloomberg View colleague Cass Sunstein argues, this may be a reason to focus on output transparency, while being cautious about input transparency, which is to say, watching the internal processes by which policies get made.
It’s a compelling argument. In fact, it’s so compelling that I have to ask: Why limit it to government? Investment bankers, power plant operators and pharmaceutical manufacturers could surely lower costs and get more done if they didn’t have shareholders, regulators and attorneys general peering over their shoulders. Like government officials, these folks often go to cumbrous lengths to prevent their private and uncensored opinions from becoming exhibits in a lawsuit.
Why shouldn’t bankers, then, be able to put their e-mails off limits to outside eyes? We can see business outputs too, after all, so why do we pay so many regulators to monitor, not just what is done, but how companies do it?
Especially since companies don’t extract their revenues at gunpoint.