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Affirmative Position
Having given a somewhat brief introduction to the topic I touched upon the potential difficulty of establishing a bright-line for appropriate or necessary information which candidates should reveal. I pointed out that virtually every individual may have unique ideas on what the "right to know" permits in the context of a political campaign. It is a very fuzzy line and one which we need not address if the approach to this topic remains focused upon the larger issue of whether or not the right to know, that is, political transparency ought to be valued over the right to privacy within the scope of a political candidate seeking a position in a democratic government. In keeping with my introductory definition of democracy, we find "a system of governance in which rulers are held accountable for their actions in the public realm by citizens". Accountability has long been seen as a required property of modern liberal democracies. A common area of concern, for example, is that candidates are expected to express the will of the people who they represent but opaque campaign finance laws make it easy for candidates to be influenced to represent the desires of special interest groups which provide a protion of their campaign funding. Through the years, at the demand of citizens, laws have been passed which permit more transparency with regard to who is contributing to political campaigns. This type of accountability is an important check on government which helps increase citizen's confidence the government is functioning in accordance with the will of the people and not the special interests. The source of funding is a classic example of the kind of information a less scrupulous politician would want to keep private and the kind of information, the constituency would claim a right to know.
Currinder 2016:
Having a full picture of an elected official's finances also can help voters understand the range of interests that may inform a candidate's political and policy choices. While states vary in the level of asset disclosure they require, lawmakers in Idaho, Michigan and Vermont are not required to disclose any assets -- but that doesn't mean they shouldn't. Robust financial disclosure encourages public officials to be mindful of any conflicts of interest their holdings present. A lawmaker's source of earnings, investments and properties should not influence what bills he introduces or how she votes. A similar argument can be made for why public officials should make their tax returns public. Lawmakers stand to gain or lose by the tax policies they enact, and their tax records offer voters one way to determine whether they are benefiting from their own actions. Tax returns also shed light on the charitable contributions public officials make, as well as the actual amount they receive in investments and other unearned income. Even though state officials are not required to disclose this information, doing so would demonstrate a meaningful commitment to transparency.
Financial accountability is an obvious area where one can easily argue for a great deal of visibility into the area of the candidate's campaign which potentially impacts how well the people are represented and while today we may claim such disclosures are public information, it is only because laws have been enacted to enforce such transparency. Even now, some state and local jurisdictions do not require such openness. The point being, certain kinds of information retained by politicians under the umbrella of privacy rights, can and will be made public if there is sufficient public interest at stake and such disclosures will be deemed part of the cost of public service. Drawing the line between public and private information necessary for evaluating political candidates is and should remain in the domain of the court and need not be a contention of debate for this resolution.
Johnson, et al 2011:
In general, as Hoefges points out, the policy discussions about balancing or reconciling the importance of public disclosure with the protection of individual privacy focus in large part on the purposes for which the information is likely to be used and the consequences of such uses for the individuals named in the record. Indeed, the question of subsequent uses of the personal information and the consequences for the individuals involved are quite pertinent in all debates about public records. For example, in a 1994 case the Supreme Court ruled that there was not a FOIA-related public interest in disclosing federal employees’ home addresses to labor unions because such disclosure did not reveal anything substantively related to official agency actions. Critics have argued that the court’s approach has “allowed minimal privacy invasions to tip the scales in favor of nondisclosure.” Nevertheless, this continues to be negotiated depending on the context. Drawing the line between the public interest in disclosure and the interest in privacy has proved to be a challenge.[962]
According to the foregoing, the essential key for the Aff position is: "anything substantively related to official agency actions". In the U.S. this is the line of demarcation, drawn by the Supreme Court, where the balance beam tips and it is reasonable to assume most liberal democracies around the world would strike a similar line.
The Right To Know
The so-called right to know is obfuscated behind several well established principles in law, especially in the U.S. While the Negative side may try to argue that an explicit right to know is not enumerated in the U.S. Constitution or similar statutes, the implicit right is well established in a number of cases throughout the decades, falling under the First Amendment.
Emerson 1976:
It is clear at the outset that the right to know fits readily into the first amendment and the whole system of freedom of expression. Reduced to its simplest terms the concept includes two closely related features: First, the right to read, to listen, to see, and to otherwise receive communications; and second, the right to obtain information as a basis for transmitting ideas or facts to others. Together these constitute the reverse side of the coin from the right to communicate. But the coin is one piece, namely the system of freedom of expression. Moreover, the right to know serves much the same function in our society as the right to communicate. It is essential to personal selffulfillment. It is a significant method for seeking the truth, or at least for seeking the better answer. It is necessary for collective decisionmaking in a democratic society. And it is vital as a mechanism for effectuating social change without resort to violence or undue coercion.[2]
The right to know is viewed as the flip-side of the freedom of speech. As no law should be passed which restricts protected speech conversely, no law should restrict one's ability to receive protected speech. It is, in fact, the sending and receiving of information which promotes the marketplace of ideas which is vital to a healthy and vibrant democracy.
The Need for Transparency
At the outset defenders of the resolution need to be aware how the need for transparency and privacy is debated from a personal level and from a broader, societal level. The resolution wording suggests the debate should be limited only to the personal privacy of the individual candidates and indeed, there is a need to address the conflict between the public right to know and an individuals' personal privacy when she chooses to run for public office. Nevertheless, the broader topic of need to know which demands transparency in government agencies, institutions and offices is the overarching requirement which pushes down into the personal space of those who seek positions of public service.
Neuman, et al 2002:
Knowledge is power, and transparency is the remedy to the darkness under which corruption and abuse thrives. Democracy depends on a knowledgeable citizenry whose access to a broad range of information enables them to participate fully in public life, help determine priorities for public spending, receive equal access to justice, and hold their public officials accountable. When the government and quasi-governmental agencies perform under a veil of secrecy, people are denied the right to know about public affairs, and the press is only able to speculate and subsist on rumors. Poor public access to information feeds corruption. Secrecy allows back-room deals to determine public spending in the interests of the few rather than the many. Lack of information impedes citizens’ ability to assess the decisions of their leaders, and even to make informed choices about the individuals they elect to serve as their representatives.[5]
The expansion of the right to know from the public space to the private space vis-a-vis candidates for public office, is increasing, perhaps as a result electronic media and high-speed communications as some sources argue. Whatever the cause, public interest in government is pushing ever more deeply into the person lives of individuals who choose to enter public service.
Simmons 2004:
The federal Freedom of Information Act and like-minded state open records laws make all records of federal and state agencies presumptively available upon request. But their corresponding exemptions act as safeguards against the release of records that could compromise, among other issues such as national security, the privacy of an implicated individual. The federal Privacy Act of 1974 also governs the dissemination of personal identifiers located in administrative records, enabling federal executive branch agencies to withhold certain personal information about individuals without their permission. But mounting public interest has suggested that transparency and ethics regulations monitoring candidates running for public office should perhaps take into account certain personal records in their capacity to affect official government business. “No one has to be a public figure,” said Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington (CREW), an organization that advocates for greater government accountability. “You give up a certain amount of privacy to be one.”
In the U.S., politicians recognize more and more that public demand for transparency is key to building trust with the public. Trust is another attribute which has become increasingly important in modern, liberal democracies and so candidates will make transparency a key tenet of their political platforms.
Pasquier & Mabillard 2015:
As shown above, transparency is often regarded by practitioners as a source of trust in government, a factor that can generate trust in government in almost any context. It is praised for its instrumental value, but is also given a strong intrinsic value, becoming a quasi-religious doctrine and leaving no space for criticism (Hood, 2006). The conceptual confusion between accountability, transparency and its effects, including citizens’ trust in government and participation, has led all democratic leaders to join the transparency movement. In certain occasions, their enthusiasm has even transformed this position into a central argument of their political campaigns.
The political necessity of being viewed as an 'open book' candidate with nothing to hide creates a "defacto" expectation that such openness is a requirement of the job. The public then views transparency as part of the job description necessary for public office. For the most part, candidates know and expect they will be subject to intense public scrutiny when the make the decision to seek public office.
The Attribute of Relevance
The bright-line between the right to know and the right to privacy, while fuzzy, does establish the fact there is probably a place where public intrusion into the private lives of public officials is unwarranted. Even the most ardent advocate for openness should be able to concede that some kinds of information are outside of the bounds of reasonability. There is, and courts concur, a standard of relevance already discussed in this article: "anything substantively related to official agency actions".
Callaghan 2017:
Do the voters have a right to know? Does the candidate have a right to privacy? In this situation it really comes down to relevance—and what is relevant to some may be irrelevant to others. For example, does anyone truly care if a candidate received a DUI as a college student 20 years in the past? Is that past indiscretion relevant to how the candidate will comport himself or herself in office now? On the other hand, past conduct may be relevant if the candidate has opened the door to questions about his or her past. For instance, if a candidate is touting success in business as a reason why he or she deserves your vote, the fact that the candidate was fired by the board of directors of his or her company may be relevant. If the candidate is running on a family values platform, the voters may want to know about domestic abuse charges. The question for the researcher would be, “Does the candidate’s past conduct conflict with current campaign positions?” Voters could argue that it is necessary to know about these discrepancies in order to determine if the candidate’s positions are sincere.
Clearly, the line of demarcation is contextual and often shifts according to the platform and pronouncements of the candidate herself. Any candidate that proclaims attributes or qualities which sets them apart from the field should expect those claims to receive a high level of scrutiny. Moreover, the depth of scrutiny is and should be in accordance with the importance and power associated with office.
Gilani 2017:
As Julian Assange says, transparency requirements should be directly proportionate to power. If public interest is being undermined, then an individual’s privacy can be infringed upon by the State. The ‘public interest’ test should be used in e-privacy and transparency laws to address power asymmetries rather than exacerbate them. There is no public interest in reducing privacy for ordinary citizens — the powerless — but there are huge public interest benefits to be secured by increasing transparency of politicians and bureaucrats, who are powerful.
Aspiring candidates for public office should remember...
Public Servants are Volunteers
Applying the standard for relevance, Aff contends that all public servants are subject to the highest level of scrutiny, for two reasons. First, the courts recognize that choosing to place oneself into the realm of "public figure" an individual enters a public space where intense scrutiny is expected.
Soopper 1976:
Public disclosure of private facts about public officials and candidates for public office presents the least difficulty in this area of the law. The public's need to know details of the lives of officials and candidates relevant to their fitness for office is crucial to self-government, and much which might be held beyond the bounds of the press for private individuals is undeniably within bounds for candidates and officials. One court stated in applying the Hill standard in a political candidate's public disclosure action:
Because of their public responsibilities, government officials and candidates for such office have almost always been considered the paradigm case of "public figures" who should be subjected to the most thorough scrutiny. In choosing those who are to govern them, the public must, of course, be afforded the opportunity of learning about any facet of a candidate's life that may relate to his fitness for office.[278-9]
Secondly, there are deeper philosophical principles associated with public service. When one presents themselves as worthy of public consideration, there is an innate tendency for the public to examine the candidate holistically as the sum of the parts.
Nadler & Schulman (undated):
At heart, this question is a form of a longstanding ethical debate about what is called "the unity of the virtues." To many of the ancient Greek philosophers, a person could not possess one of the cardinal virtues-prudence, temperance, courage, and justice-without possessing them all. How, they might have asked, could a person who cannot control his or her appetites (or is intemperate) be just or prudent? According to SCU Associate Professor of Philosophy and Classics Scott LaBarge, Socrates believed that virtue was a matter of understanding, and that once a person understood good and evil, he or she would naturally be prudent, temperate, courageous, and just. Aristotle argued that virtue had this intellectual component, but also included the virtue of character-that is, habits of behavior developed by proper training. So, LaBarge explains, Aristotle understood that it was possible, in people with insufficient training, for the passions to overrule reason; thus people might well exhibit some virtues and not others. Still, LaBarge said, Aristotle would have argued that leaders should have "true virtue, where all parts of the soul are pulling in the same direction"; that is, toward the good. Many people still hold to the unity of the virtues, making a case, for example, that a politician who cheats on his wife is not someone who can be trusted with the public's business either.
The Affirmative Framework
In the introduction to this topic, I suggested the resolution could be debated as conflict between the value of knowledge for the affirmative and the value of privacy for the negative. Knowledge is a legitimate value premise but may be a difficult topic to debate, especially for first year Lincoln Douglas debaters. The true value of knowledge is dependent upon understanding and to a great extent the quality and relevance of the knowledge. With respect to democratic governments, transparency may be considered a value and one that is easily understood and relevant to the resolution. Transparency is upheld by the criterion of maximizing relevant information (which obviously requires one to limit the definition of "relevant" to a reasonable degree). Another obvious value is governmental legitimacy as the objective which justifies transparency. The citizens must trust their government to represent their best interests and this trust (another value, perhaps?) must be consistent from the agencies and institutions all the way down to the individuals who carry out their duties in the interests of the public trust. Regardless, of which value is chosen, the debate should provide a comparative analysis of the right to know and the right to privacy. The debater must assume the judge will find merit in both values and so must be convinced there are advantages to voting Aff that merit a ballot. The contentions you choose should be framed as relative advantages; Aff reduces the potential for corruption and influence by special interests; Aff builds confidence in the government; Aff preserves democratic principles. These are some of the net benefits realized with the Affirmative ballot.
Sources:
Callaghan H (2017), The Ethics of Opposition Reseach. The public’s right to know vs. the candidate’s right to privacy, Markkula Center for Applied Ethics, July 2017. https://www.scu.edu/ethics/all-about-ethics/the-ethics-of-opposition-research/
Currinder M (2016), Political Transparency: Strong Disclosure Laws Help Keep Elected Officials Accountable, Government Technology, AUGUST 8, 2016. http://www.govtech.com/opinion/Political-Transparency-Strong-Disclosure-Laws-Help-Keep-Elected-Officials-Accountable.html
Emerson, TI (1976) Legal Foundations of the Right to Know, 1976 Wash. U. L. Q. 1.
https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=2625&context=law_lawreview
Gilani I (2017), Privacy versus transparency, DNA, https://www.dnaindia.com/analysis/column-privacy-versus-transparency-2543497.
Johnson DG, Regan PM, and Wayland K (2011), Campaign Disclosure, Privacy and Transparency, 19 Wm. & Mary Bill Rts. J. 959 (2011), https://scholarship.law.wm.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1585&context=wmborj
Nadler, J, Schuman M (undated) The Personal Lives of Public Officials, Markkula Center for Applied Ethics, https://www.scu.edu/government-ethics/resources/what-is-government-ethics/the-personal-lives-of-public-officials/
Neuman, L; editor (2002), Access to Information, A Key to Power, The Carter Center, November 2002. https://www.cartercenter.org/documents/1272.pdf
Pasquier M, Mabillard V (2015) Transparency and Trust in Government: A Two-Way Relationship. Yearbook of Swiss Administrative Sciences 2015: Pages 23–34. https://www.academia.edu/25271358/Transparency_and_Trust_in_Government_A_Two-Way_Relationship
Samuel Soopper, The First Amendment Privilege and Public Disclosure of Private Facts, 25 Cath. U. L. Rev. 271 (1976).https://scholarship.law.edu/cgi/viewcontent.cgi?article=2503&context=lawreview
Simmons A (2004), Public figures, private records, Reporters Committee for Freedom of the Press, https://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-summer-2012/public-figures-private-reco.
Wonderful content!!
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