To the extent the disclosure of confidential government deal-making is even a problem, we must be careful not to paint with too broad of a brush in our response. The ability of third parties to disseminate information about the government is essential to a functioning democracy. The public has a right to be heard by their government officials on issues of public importance. The public cannot express informed opinions about these matters unless they know what is going on behind closed doors in Washington.
The Supreme Court established this bedrock principle in the “Pentagon Papers” case, which upheld The New York Times’ right to publish classified information that was critical of the country’s military involvement in Vietnam. More recently, we have seen embarrassing backroom deals like the “Cornhusker Kickback,” the “Louisiana Purchase,” and “Gator Aid” exposed during the legislative negotiations over Obamacare. Any attempts to regulate “political intelligence” must acknowledge the public’s right to know and find out what is happening in government.
More fundamentally, we need to look at how government itself functions. Ours is a republican form of government, and the legislative process may become unwieldy if lawmakers were constantly subject to the instant demands of 300 million constituents. However, to the extent our government officials need to negotiate legislation and policy in private, we cannot blame stakeholders for trying to glean intelligence on those discussions. There is also something askew when government decisions can add or subtract billions of dollars every day from private companies’ bottom lines. Perhaps the problem in our system isn’t “political intelligence”; it’s the unintelligent policy of giving so much power to the political class to choose economic winners and losers.
Eric Wang is a political law attorney and a senior fellow with the Center for Competitive Politics.